ML20009A247

Intervenor Request for Appellate Review Certified on Direction of Commission.Seeks Appeal of Denial of Motion for Summary Disposition Per ASLB 810615 Memorandum & Order

ML20009A247
Person / Time
Site:	Midland
Issue date:	06/29/1981
From:	Stamiris B AFFILIATION NOT ASSIGNED
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8107090304
Download: ML20009A247 (7)

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BEFORE THE ATOMIC SAFETY AIID LICEI4SII4G APPEl(L BOARD @  %

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INTERVEITOR RECUEST FOR APPELATE REVIEV! CERTIFIED Office (d ef the se:g3fy 'IL D1RECTICi1 OF THE COntISSION 0xte:i,g g se,g, En. :4 p

1. Request Meets Criteria for Certification of Review Having been unable to contact Judge Pechhoefer by telephone (6/26/81) to seek his possible referral of this appeal, and due to the severe time constraints associated with, the ' July 7,1981 hearing,y I respectfully request this Appeal Board to undertake this review 3on its own discretion. The June 15, 1981 Memorandum & Order of the Board made several rulings on motions and requests to which I take exception. However, I seek to appeal only the denial of my Motion for Summary Disposition in this pleading, for it most clearly meets the standard of exceptional circumstances which warrant appelate.

review at this stage of the proceeding.

The decision to which I take exception wi11, if not reversed, have a profound effect on the due process of law by denying full and fair consideration of the very issues on which this hearing is based. The decision in cuestion, due to its connection with the proposed Duality Assurance stipulation between the Staff and the Applicant, will set the course of the whole proceeding, define the psos s

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Issues to be considered and the basis on which the Licensin0 Board 1

j decision will be marle. Concisely,a ruling in my favor on this motion would limit the issues to be considered in making " reasonable

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assurance " QA judgements to those from.the past and present.

denial of my motion would lead to a hearing in which " reasonable assurance" OA judgements are based instead on the present and future.

Unfortunately, the NRC " reasonable assurance " Judgement p did not await the commencement of the hearing or the rulin0 on my Motion for Summary Disposition which would set the acceptable in this parameters of basing "reas.onable assurance" judgements hearin0. The NRC has offered its conclusion on this ultimate.

cuestion prior to the hearing, as a prerecuisite condition of an agreement with the Applicant not to litigate the five year period of OA deffciency which led to the Dec. 6, 1979 Order. The proposed terms of this agreement have been closely guarded in a " confidential" memo on the subject.

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Using the critera set forth by this Appeal Board on p. 4 of the Feb. 20, 1981 Thornburg Ruling, it is apparant that 1) the q

public int erest is" seriously harmed"by a proceeding which fails O

to address the OA hreakdown on which the Dec. 6 Order was based, or-j for my O

how and why the soil settlement problems occurred (except lessen the delay which would occur' meager efforts); 2) review now,would with reversing an initial decision, the only other means of addressing' u

f: issue would affect such preliminary matters; 3) failure to address the 3

in such a pervasive and unusual 5 the basic structure of the proceeding 9}  ?

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manner as to determine the very essence of the proceeding.

Based on the aforementioned cosiderations, and their ultimate effect on NRC regulation intended to safeguard public health and safety, I hereby seck appelate review of these issues prior to commencement of the hearing.

Regretfully this appeal comes only a week before the hearing is scheduled t.o begin,.and without the awaited CA Stipulation decision.

However, based on statements made in conference calls and on p.6 of the June 15, Memorandum & Order, "that the Board would assure that (my) rights were not prejudiced by an agreement between the Applicant and Staff.." I expect the. proposed QA Stipulation to be approved.

As stated at the end of my 6/24/81' Objection to the CA Stipulation, I feared that a formal denial by the Licensing Board would be of little consecuence now in view of the surrounding circumstances anyway.

For these reasons, and because I do not wish to delay the hearing set for July 7th, I will proceed with my appeal on the denial of my Summary Disposition Motion in the hopes that~the Appeal Board can begin this essential clarification of "the ground l rules" before. the proceeding begins.

1 I might add that I have already attempted to seek such clarification in my 6/5/81 Recuest (#4, p.6 of 6/15 Memorandum).

Following the referenced explanation during the 6/12 conference call, I respectfully requested that Judge Bechhoeffer answer my request in l

l writing as I considered these to be very important questions and I l

i remained confused-(ie. I did not receive a satisfactory answer).

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9 That reauest was denied.

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. ,5 II. Arguments Opposing Dental of 4/14/81 Intervenor Motion for Summary Disposition In recuestin0 a ruling on my Motion for Summary Disposition, I seek: 1) an appelate definition on acceptable evidence; 2) a ruling j that~past DA performance (prior to Dec.6, 1979) must be fully l considered in the final " reasonable assurance" Judgement; and 3) an apnelate decision on the weight accorded the evidence allowed.

I submit that acceptable evidence be limited to that from l 1

the past and present, because '* evidence" from.the future is not l

really evidence at all by virtue of the simple fact that it has not yet happened. Therefore the suggestion (p.2 & 3, Memorandum) tha.t such concerns are more appropriately addressed as evidentiary objections during the course of the hearing, is incorrect. For I do not, nor have I ever sought to exclude any evidence on the subject

• i l of CA as the Staff suggests (p.2, Memorandum). I do however object 1

j to testimony about the future, such as OA " plans",.being considered evidence.

The Staff assessment repeated on p.2 that "Intervenor does not seek summary disposition of the issue of CPC's GA implementation I (emphasis added) after the Dec. 6, 1979 modification order but seeks to have us not consider certain information when deciding l

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that issue" is precisely correct. The information that I seek not to have considered is that which has not yet happened. Plans

) and commitments, whether stated orally or on paper simply fail to l'

meet the requirements of evidence because they do not'have a basis in fact. The fallacy of basing judgements on such testimony is most recently and' clearly pointed out in result 9 of LBP 74-71,and k

the ensuing period of "PA breakdown" to which Mr. Keppler and others testified in the Staff's 4/14/81 Motion for Summary Disposition.

! In submit ting "that Applicont 's promises, com=Itments,

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intentions, and plans for the future regarding OA, do not constitute I genuine issues to be heard in this soll settlement proceeding," I have established "the absence of a genuine issue of material fact"

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regarding the future. For, despite the " issue" that remains between myself and the Applicant on these considerations, no party can

, produce facts about the future. Just as I do not wish to pretend l to do so, neither should any party. In fact, if such testimony were allowed, I would be denied my legal right to controvert that testimony.

,j Therefore, acceptable evidence should be limited to that concerning i

i the past and the present.

Lastly, on p. 3 is the statement that the denial of my i motion is "without prejudice to the submission of evidentiary motions at an appropriate time." Yet the cualification offered in the il next sentence."..however we note that the Commission's rules permit 3 the introduction of relevant, material and reliable evidence..."

4 l makes me reluctant to await the ultimate ruling of the Licensing Board.

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The second requested ruling "that past OA performance

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a (prior to Dec.6, :1979) must be fully considered in the final

= " reasonable assurance judgement," is unavoidably tied to the proposed OA Stipulation just as my Motion for Summary Disposition Is- directly related to that Stipulation. For the failure of my initial attempts to thwart this stipulation agreement (as set M

forth in the attachment ^ to my 6/24/81 Objection to the' Stipulation) led to my Motion for Summary Disporltion regarding bases of

" reasonable assurance"rA judgements.

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Having set forth related arguments on pages 2 and 3 of my Motion,'I concluded that "if reasonable assurances must be sought to estimate future performa1ce, then those assurances must be. based on the only measurable evidence available: that of past performance."

u This second recuest is perhaps the most difficult yet I feel compelled to seek appelate assurance of this issue due to the open encouragement offered on the Stipulation over the past several months. Indeed,, Judge Bechhoefer indicated on 6/12/81 that he was likely to accept parts 1 and 1 of the Stipulation while recutring a

the submission of evidence on part 3. I consider this a difficult j request because just as I feared that " reasonable assurances" once l

given can hardly be taken back, I similarly fear that " full consider-ation " can hardly be compelled..

The third cuestion to which I seek a decision regards the weight accorded the evidence which is allowed. Under the circum-i stances discussed in this apocal, much delay and objection would ce avoided if the cuestion were decided now rather than " await a ruling on the merits of the part!cular cuestion" as suggested (p.3 l a of Memorandum).

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I submit that the weight accorded evidence be in direct i

proportion to the period of time it covers. For example, it would j

be unfair to the Applicant, to make an ultimate CA judgement based on five weeks of poor CA in the past, if it were followed by five b yaars of good OA. Similarly it is unfair to make an ultimate OA q J0dgement based on five weeks of recent improved CA "when'it is preceeded by five years of poor OA. The PA stipulation, without

benefit of a hearin0,has already done precisely that ; and if it is accepted, will also eliminate litigation by the Staff and Applicant i of the preceeding five years of CA performance cited in the Dec. 6,

. 1979 -Orde r.

Therefore I submit that the practice of according uneaual weight to various time periods, as already prematurely applied be ruled by the NRC in giving its teasonable assurance", must improper by this Appeal Board and not allowed to govern the L conduct of the proceeding.

If these are unusual requests to be put before an Appeal Board at this time, I submit that the unusual circumstances of d

j the past several months leading up to the present situation demand i their submission and answer prior to the commencement of the hear ing.

o according to 5/22/01

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Region III Inspection Respectf ul hi SWud t ted, d.AMJLC., // u

$ cc: ASLAF, Metabers

- ASLB Members W. Paton, NRC M. Miller, CPCo.

Secretary, NRC Attorney Gen. Kelley

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