ML19261A328

Forwards Comments of Northern in Public Svc Co on Petitions W/Respect to Pile Foundation. Urges NRC to Promptly Deny the Petitions

ML19261A328
Person / Time
Site:	Bailly
Issue date:	01/08/1979
From:	Eichhorn W EICHHORN, MORROW & EICHHORN
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
Shared Package
ML19261A330	List: ML19261A328 ML19261A336
References
NUDOCS 7901110320
Download: ML19261A328 (8)

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s Re: Northern Indiana Public Service Company 9%e.= 8 Bailly Generating Station, Nuclear 1 b

Dear Mr. Chilk:

By memorandum of December 11, 1978, the Commission requested the views of Northern Indiana Public Service Company (NIPSCO) and of the Commission's Staff concerning petitions from the Porter County Chapter of the Izaak Walton League of America, Inc. (joined by other persons) and from Local 1010 of the United Steelworkers of America requesting the institution of a proceeding and a hearing to consider NIPSCO's selected pile foundation for the Bailly Generating Station, Nuclear 1 (Bailly Facility) .

In response to that request, we enclose the " Comments of Northern Indiana Public Service Company on Petitions With Respect to Pile Foundation," which demonstrate that the petitions are without merit and should promptly be denied by the Commission.

Our responses to the specific questions contained in the Commission's memorandum are detailed in the " Comments;" they may be summarized as follows:

1. What representations were made by the licensee with respect to the placement of pilings for the facility in its application for the construction permit and in the hearing record?

Section III of the enclosed " Comments" discusses, inter alia, the portions of the Preliminary Safety Analysis Report (PSAR) which refer to the characteristics of the pile foundation, 7901110M 'enQ

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EICHHORN, MORROW & ElCHHORN Mr. Samuel J. Chilk Page 2 January 8, 1979 Applicant's Exhibit 6 which (although admitted for a limited purpose) refers to the supplementary investigations that indicated the feasibility of driving the piles into the interbedded glacial lacustrine deposit rather than the glacial till or underlying bedrock, and the solo instance in the hearing of which we are aware that the pile foundation was discussed. As we indicate in our " Comments," the entire record makes clear that, although driving piles to the glacial till or underlying bedrock was preliminarily identified as one type of foundation installation, the foundation design and installation were to be re-evaluated when the building locations and elevations were finalized, a comprehensive foundation investigation was completed, and a final design selected. There were no representations that a particular pile depth would necessarily be selected and there was no reliance thereon by the Commission or the Staff, which, in fact, specifically acknowledged in the Safety Evaluation Report the preliminary nature of the information and concluded that the matter would be followed during construction.

2. To what extent is the licensee legally bound by representations made in the application for the construction permit and in the hearing record unless it obtains a construction permit amendment authorizing different construction techniques?

As we discuss in Section III, in accordance with the Atomic Energy Act and Commission regulations, NIPSCO obtained a construc-tion permit authorizing it "to construct the facility described in the application and the hearing record, in accordance with the principal architectural and engineering criteria and environ-mental protection commitments set forth therein." Construction Permit No. CPPR-104, p. 3 (emphasis added). The pertinent requirements derived from the PSAR are that " Class I structures will be supported on pile foundations bearing on competent material" and that the piles "will resist downward, uplift and lateral loads for all conditions of static and dynamic loading. The selected pile foundation continues to satisfy all such applicable require-ments. The petitioners have taken isolated statements in the PSAR and the hearing record out of context to infer that NIPSCO undertook to drive the piles to the glacial till or bedrock

'and is now violating such commitment. Such accusation is totally false. Not only is it clear that driving the piles to that particular depth was not part of the principal architectural and design

ElCHHORN, MORROW & EICHHORN Mr. Samuel J. Chilk Page 3 January 8, 1979 criteria incorporated into the construction permit, but also that all information concerning pile foundation design was of a preliminary nature subject to re-evaluation in the course of design development and construction.

Incidentally, presumably because the petitions were the only documents before the Commission when it formulated the irstant questions, the wording of question 2 appears to reflect che mistaken assumption that the construction permit authorized specific "coastruction techniques" and thus that an amendment might be needed " authorizing different construction techniques."

The construction permit for the Bailly Facility does not authorize specific " construction techniques" as we understand that term.

A construction permit specifies the architectural and engineering criteria which the constructed facility will have to meet, and it is the permittee's responsibility to demonstrate at the operating license stage that the final design and construction satisfy the criteria. But he has flexibility as to the techniques that he follows in such construction; that flexibility is essential in view of the myriad construction processes and multitude of contractors that are necessarily involved in the complex job of building a nuclear power plant.

3. Should the licensee's request for staff approval of shorter pilings be treated as a request for a construc-tion permit amendment? What standards are applied in determining when a construction permit amendment is required?

The wording of this question also appears to reflect a misunder-standing of the circumstances relating to the selected pile foundation, perhaps occasioned by the fact that only the petitions were before the Commission. NIPSCO has never requested Staff

" approval" of any pilings. All that NIPSCO has done is to submit information to the Staff so that it could " follow this item during construction" as stated at page 62 of the Safety Evaluation Report. After the construction permit was issued, these submittals began with Mr. Lyle's letter to Mr. O' Leary of the NRC Staff on June 13, 1974, furnishing the " Pile Testing Analysis." Whenever the Staff required additional information or stated limitations on field investigations, NIPSCO cooperated

EICHHORN, MORROW & EICHHORN Mr. Samuel J. Chilk Page 4 January 8, 1979 as a matter of course; and when more time was needed for the Staff's review, NIPSCO obviously did not proceed further without the Staff's concurrence. But such review and concurrence would not constitute an " approval" either by the Staff or by the Commission.

As mentioned several times in the enclosed " Comments," a construc-tion permit does not " constitute Commission approval of the safety of any design feature or specification" but "[t]he applicant, at his option, may request such approvals in the construction permit or, from time to time, by amendment of his construction permit."

10 C.F.R. S 50. 35 (b) . NIPSCO has not made such a request and the correspondence with the Staff concerning the selected pile foundation cannot be interpreted as constituting such a request.

As we discuss in Section V, whether such a request is made is solely at the licensee's option. There is serious doubt as to whether the Commission can determine at its own option to consider issuing an unnecessary and unrequested amendment. For reasons which we detail, if made, such a determination would be disrup-tive of the two-step licensing process called for by statute, regulations, Commission practice, and judicial precedents and would be grossly unfair to NIPSCO.

In our view, the standard to be applied in determining when a construction permit amendment is required is simple: if the proposed construction would violate the applicable requirements of the construction permit, construction cannot lawfully proceed without an amendment. In the instant case, the selected pile foundation fully satisfies all applicable requirements of the construction permit and no amendment is needed. See " Comments,"

Scction III.

4. Does the shorter pilings proposal involve significant hazards considerations? What are the applicable standards in making such a determination?

Within the terms of the Atomic Energy Act and the Commission regulations, the need to determine whether a proposal involves a "significant hazards consideration" arises only if an amend-ment to an operating license or construction permit is required, i.e., the determination is made only in deciding whether an amendment can be issued without offering a prior opportunity

ElCHHORN, MORROW & ElCHHORN Mr. Samuel J. Chilk Page 5 January 8, 1979 for a public hearing. 42 U.S.C. S 2239(a); 10 C.F.R. SS 50.59 (b) ,

50.91. It thus has no relevance to the consideration of the instant petitions, since the selected pile foundation satisfies the requirements of the construction permit and no amendment is required.

As we discuss in Section IV, even if the need for an amendment is hypothesized, the selected pile foundation would not involve a "significant hazards consideration" since it does not substantially increase either the probabilities or consequences of a major credible accident nor reduce the Bailly Facility's safety margins substantially below any relied upon in the issuance of the construction permit. In the absence of any specified standards for such a determination, these are the standards that we believe represent a logical interpretation of the statute and regulations; they appear to be consistent with the standards currently used by the Staff.

5. Should a hearing be ordered, either as a matter of right or Commission discretion? If the licensee's request is treated as an application for a construction permit amendment, is the availability of a hearing as of right dependent on a finding of significant hazards?

A hearing should not be ordered, either as a matter of right or Commission discretion, since, as discussed in Section III, the selected pile foundation satisfies applicable requirements of the construction permit and no amendment is required.

As noted above, we dispute the suggestion that we have filed a

" request for staff approval" or that the current circumstances could be interpreted as an " application for a construction permit amendment." Even if it is hypothesized, however, that an amendment has been or must be requested, as discussed in Section IV, no "significant hazards consideration" is involved. Thus, under the statute and regulations, the Commission is authorized to dispense with public notice and to issue the amendment without a prior public hearing, and should certainly do so in the instant circumstances. Petitioners would then be entitled to a hearing after issuance of the amendment. Petitioners would be entitled to a hearing as a matter of right prior to the issuance of the amendment only if the Commission did not make a finding that the mnendment involves "no significant hazards consideration. "

EICHHORN, MORROW & TICHHORN Mr. Samuel J. Chilk Page 6 January 8, 1979 For the reasons we discuss in detail in Section V, no hearing should be ordered in the Commission's discretion. If, in the exercise of " discretion," the Commission orders a hearing upon an aspect of construction which is being pursued in full conformance with the requirements of a valid construction permit, the Commission will place in doubt the very meaning of a construction permit and the reliance which a permittee or prospective permit applicant can place thereon. The certainty and value of a construction permit will be greatly diminished and the ability of utilities, state regulatory commissions, and the public to plan on the basis of final Commission decisions will disappear. To order a hearing under these circumstances would make a mockery of the carefully-structured two-step licensing procedures and would be tantamount to its abandonment in favor of a continuous hearing process not sanctioned by the statute, regulations, or precedent. Such action would also surrender direction of the regulatory process to any intervenor with sufficient persistence.

If, notwithstanding the foregoing arguments, the Commission determines to order a discretionary hearing, its order should explicitly state that pile installation can proceed while the hearings are conducted. Any interruption of pile installation would constitute a stay of construction, notwithstanding the fact that petitioners have made absolutely no demonstration of compliance with the standards for granting a stay established in precedents and the Commission regulations. The public interest and " elemental fairness" to NIPSCO dictate that it be authorized to proceed without further delay, particularly since no circumstances warranting a stay have been identified and the costs to NIPSCO and the public it serves would be enormous. See " Comments,"

Section VI.

The December 11 memorandum also requested that NIPSCO indicate the degree of urgency with which it requires a response concerning its selected pile foundation. Contrary to petitioners' allegation that delay of the project to accommodate their hearing request would "cause little, if any, harm.to NIPSCO," as discussed in Section VI, such delay would occasion extensive harm to NIPSCO and its customers. Since no significant construction can proceed until the piles are installed, delay in commencement of pile i.nstallation has a day-for-day impact on project completion.

ElCHHORN, MORROW & EICHHORN Mr. Samuel J. Chilk Page 7 January 8, 1979 This alone is estimated to result in an increase in project cost due to escalation of approximately $8 million per month. There would also be costs incurred for purchase of replacement power, societal costs because of unemployment during construction delays, and loss of local tax revenue. Any further delay of this project is not only unwarranted but intolerable.

We would like to add one comment on the question addressed to the Staff concerning "its customary practices in cases where an applicant proposes to deviate from its previously approved construction plan as described in its application or the hearing record." Again, presumably because only the petitions were before the Commission, the question appears to reflect a mis-understanding of the current circumstances. In issuing a construc-tion permit, the Commission and its Staff neither review nor approve a " construction plan;" the construction permit authorizes the permittee to proceed with construction of a plant conforming to approved " principal architectural and engineering criteria."

With particular reference to the pile foundation at the Bailly Facility, in accordance with statute, regulation, and Commission practice, no " construction plan" was approved, only certain criteria. These criteria are fully satisfied by the selected pile foundation and there is no proposal by NIPSCO "to deviate" therefrom.

In conclusion, we respectfully urge the Commission to consider and promptly deny the petitions. Although such petitions should normally be decided by the Staff, under these unique circumstances, for the reasons we discuss in Section II, action by the Commission would be more effective and would provide to both NIPSCO and the petitioners a prompt final decision of the agency on the hearing requests.

Yours very truly, WILLIAM H. EICHHORN Attorney for Northern Indiana Public Service Company WHE/dgg Enclosure cc: See attached list

s EICHHORN, MORROW & ElCHHORN

, 1 Mr. Samuel J. Chilk' Page 8 January.8, 1979 cc: Joseph Hendrie Victor Gilinsky Richard Kennedy Peter Bradford John Ahearne James Kelly IIoward K. Shapar Harold R. Denton Guy H. Cunningham, III Chief, Public Proceedings Branch, Office of Secretary of the Commission Robert J. Vollen ' ,

Edward W. Osann, Jr. f Robert L. Graham .

Richard L. Robbins Russell R. Eggert -

Michr.el I. Swygert William Andrews Meredith Hemphill, Jr.

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