ML19331D314
| ML19331D314 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 08/25/1980 |
| From: | Axelrad M, Eichhorn W EICHHORN, EICHHORN & LINK, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, NORTHERN INDIANA PUBLIC SERVICE CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-CPA, NUDOCS 8008280671 | |
| Download: ML19331D314 (12) | |
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket No. 50-367
)
NORTHERN INDIANA PUBLIC
)
(Construction Permit SERVICE CCMPANY
)
Extension)
)
(Bailly Generating Station,
)
August 25, 1980 Nuclear-1)
)
NORTHERN INDIANA PUBLIC SERVICE COMPANY'S RESPONSE TO BOARD QUESTIONS WITH RESPECT TO PILE FOUNDATION The Board in its " Order Following Special Prehearing Conference" dated August 7, 1980, propounded four specific questions to be answered by the parties, presumably to aid the Board in determining whether the issue of pile foundation design is a proper issue for consideration in this proceeding.
We disagree with the Board's theory regarding the pile issue and do not believe the questions posed are germane to its admissi-bility.
Northern Indiana Public Service Company's (NIPSCO) objections on this issue have been filed in other documents.
In accordance with the Order, however, NIPSCO hereby pro-vides its response to the Board's questions.
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. 1.
Are the Permittee's plans with regard to the pilings advanced to the stage where they would be considered at a construction permit proceeding?
If not, what remains to be done to bring them to that stage?
Under Section 50.35 of the NRC regulations, in order to obtain a construction permit, an applicant is required to submit as part of its Preliminary Safety Analysis Report (PSAR) a description of the proposed facility design including the principal architectural and engineering criteria for the design.
An applicant is not required to furnish "all of the technical information required to complete the application and support the issuance of a construction permit which approves all proposed design features."
The type of information now contained in NIPSCO's " plans with regard to the pilings" would not have had to be included in the PSAR, and it would not have had to be considered at the construction permit proceeding.
Moreover, since a substantial portion of the information results from an extensive indicater pile program which could not have been conducted prior to the issuance of j
l the construction permit, it could not have been considered at the construction permit proceeding.
l However, the Board is apparently inquiring about the conduct of a hypothetical construction permit proceeding held approximately six years af ter the issuance of a constructica l
l permit.
Even under these circumstances the level of detail required to be submitted in the PSAR would not change.
- Thus, 1
. the detailed information concerning the piles would still not be required to be considered in the construction permit pro-ceeding, unless NIPSCO, in its sole discretion, requested approval of this design feature under Section 50.35(b) and incorporation of the approval in its construction permit.-*/
Although inclusion and review of such information at the hypothetical construction permit proceeding thus would not be required, it is possible to postulate circumstances under which the information might become part of the proceeding.
For example, as part of its review, the Staff might (although it would not be required to do so) request such information and incorporate it into the Safety Evaluation Report (SER).
Or, the Board might request the information.
Or, if a contention relating thereto were admitted, an intervenor might obtain the information through discovery and might be able to intro-duce it as evidence.
These possibilities are, of course, conjectural.
The same theoretical possibilities would exist
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with respect to ang information-~ which a permittee (or an
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NIPSCO, of course, has not made any such request.
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Thus, for example, the same reasoning would apply to any of the following information:
calculations, analyses, raw
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field data, incomplete designs, rejected designs, etc.
And, of course, if the hypothetical construction permit proceeding were held late enough, it would also apply to final design or even as-built drawings.
. applicant) might happen to possess which extends beyond that required to be included in a PSAR.
In sum, only the level of information which must be included in the PSAR will necessarily be considered at the construction permit proceeding.
Any additional information possessed by a permittee or applicant would be considered if some procedural events (which cannot be predicted) take place.
In our opinion, no one can entirely foreclose the possibility that any additional information, if available, would be con-sidered.
2.
When does the Staff estimate it will complete its analysis of the short pilings proposal?
NIPSCO has no independent information on this subject.
3.
What are the reasons (practical, legal or otherwise),
if any, why it would be preferable to defer the short pilings proposal to the operating license proceeding, rather than hear it at is proceeding before further construction commences?
We have previously presented NIPSCO's legal position regarding the pile design issue and why it should not be heard
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We note that, perhaps through inadvertence, this question refers to the possibility of the piling proposal's being heard in this proceeding "before further construction commences."
As the Board is aware resumption of construc-tion of the Bailly facility awaits only NRC Staff concurrence in NIPSCO's proposed pile placement methodology.
Upon receipt of that concurrence, NIPSCO is free to go forward with con-struction.
No other action or ruling by the Staff or Com-mission stands in the path of continued construction of l
Bailly N-1.
While the construction permit's expiration date has passed, the permit is deemed not to have expired until final agency action on NIPSCO's requested axte.'sion of the completion date.
10 C.F.R. S 2.109.
Thus, ever if the Board determines to hear the pile question in this proceeding, this would not necessarily result in hearing i
the question "before further construction commences."
l
. in this proceeding.
We need not reiterate those arguments at length here.
Instead, we direct the Board's attention to our prior pleadings:
NIPSCO Response to Supplemented Petitions to Intervene, pp. 49-51 (3/7/80).
NIPSCO's Objections La Provisional Order Following Special Prehearing Conference, pp. 13-17 (6/30/80).
NIPSCO's Objections to " Order Following Special Prehearing Conference," pp. 3-6 (8/18/80).
In summary, the Commission has decided that the &ppropriate forum for any hearing on the pile question is the operating license p: acceding.
(Commission Memorandum and Order, dated December 12c 1979, Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), CL1-79-11, 10 NRC 733.)
While that decision was made at a time when no other proceeding was pending, it is based upon the sound principle of maintaining the integrity of the administrative process and the assurances that safety matters will be resolved in the proper course of that process.
In that decision, the Commission explicitly decided that "the proper occasion for a heatring on this pilings proposal is at the operating license revie.w stage.
(10 NRC at 743.)
Such a determination thus dealt precisely with the subject of the finding required under Cook, namely,
. whether the reasons assigned for the extension give rise to health and safety or environmental issues which cannot appropriately abide the event of the environmental review-facility operating license haaring."
(Indiana and Michigan Electric Co. (Donald C. Cook Nuclear Plang, ALAB-129, 6 AEC 414 at 420 (1973).)
. Even if the Board does not agree that it is bound by the Commission's determination, clearly it must give that deter-mination great weight.
Unless the Board is aware of information which was not in the possession of the Commission, it cannot and should not reach a determination contrary to that of the No such new information has been identified by Commission.
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the petitioners.
That the procedural posture before this Board is different Thu Commission's from that before the Commission is irrelevant.
determination as to whether a hearing on a safety issi; could tot have await the cperating license stage could not and would been based on procedural considerations.
There are also compelling practical censiderations why the At piling proposal should await the operating license stage.
that time, regulatory review of the piles will have the benefit of all of the detailed information developed during the installa-tion and testing of the piles.
Instead of assessing predic-tions of pile performance, the review will more properly and l
definitively be based upon actual "as-built" information which It is also possible cannot _e available prior to pile placement.
i l
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The fact that the Commission did not foreclose the possi-
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bility that the Staff could undertake a Section 2.202 proceeding meant only that the Staff could do so if, as l
l part of its continuing review or exercise of its enforce-ment authority, it identified new information warranting such a proceeding.
Obviously such information would be additional to that which had been presented to the Com-missi an.
1
. that refinements in some aspects of pile' placement procedure er pile design will occur as installation takes place.
This might then require that any hearings on this subject held prior to installation be repeated once again either at the time of the refinement or at the operating license stage.
Finally, admission of the short piles issue in this proceeding is not without its practical adverse effects.
Litigation of this issue would increase the scope of discovery and entail a more lenghty hearing.
At the very least, a hearing on this issue would increase the amount of effort which NIPSCO and the Staff would be required to devote to the proceeding; at worst, it could delay the conclusion of the proceeding significantly.
Such a result would be damaging to NIPSCO in the financial community because of the uncertainty engen--
dered by an ongoing proceeding on the extension of the Bailly construction permit, even though construction could proceed in the interim.
These practical considerations reveal the fallacy in any suggestion that admission of a contention on short piles would not cause any harm simply because such cen-tention would be heard in the context of an ongoing pro-ceeding.
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. 4.
What are the reasons, if any, why the Board should or should not be reasonably assured, without hearing that issue in this proceeding, that all safety questions arising from the proposal to use short pilings will be resolved before the latest date mentioned in the request for the extension?
The NRC is structured to provide adequate assurance that all safety questions arising during construction will be resolved prior to completion of construction whether or not a hearing is held.
Under the present NRC orga'nizational structure, the Office of Nuclear Reactor Regulation (NRR), Division of Licensing, is responsible for managing safety reviews of applications for construction permits and evaluating technical specifica-tions.
(10 C.F.R. S 1. 61(a). )
It is this branch of the NRC Staff that is responsible for assuring that all safety issues are resolved during construction.
The NRR is staffed with experts in all facets of nuclear plant design and constru;: tion and in many instances has retained experts from outside the agency to assist in the review and assure that all safety issues are properly resolved.
The NRR also has the authority to amend licenses and institute hearings where matters of safety are not appropriately resolved.
(10 C.F.R. S 2.202.)
As is promised in the Staff's safety Evaluation Report, NRR has been reviewing the pile design during construction and, in fact, has ordered extensive testing and analyses to be per-formed during this review.
Thus the Board can be assured that safety issues regarding piles will be resolved during construc-i tion because of the authority and responsibilities delegated l
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. by the Commission to the NRR and its ongoing review and super-vision of the Bailly pile design.
Additional assurance regarding resolution of safety questions is found in the Office of Inspection and Enforcement which is responsible for ascertaining that licensees comply with NRC regulations, rules, orders, and license provisions to appropriately protect the health and safety of the public.
(10 C.E.R. S 1.64.)
Not every safety question involved in nuclear plant construc-tion need be resolved by licensing boards.
The NRC organiza-tional structure clearly anticipates that the final design of a facility will evolve during construction and has made adequate provision for resolution of safety questions associated with the evolution of final design.
This Board, however, need not rely solely upon its recogni-tion of organizational safeguards that all safety questions re-garding pile design will be adequately resolved prior to the completion of construction.
The Commission itself when confronted with the same pile design safety questions only eight months ago found:
Based on all these censiderations, we believe that there is reasonable assurance that the l
outstanding safety questions can be resolved, and resolved early in the construction process.
We therefore see no reason to alter our view, reflected in the original issuance of the con-struction permit, that the facility can be con-l structed and operated without undue risk to the health and safety of the public.
. (Commission Memorandum and Order, dated December 12, 1979, Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), CLI-79-ll, 10 NRC 733 at 742. )
It is important to remember that the Commission was dealing with the same pile design at nearly the same point in time that is being considered by this Board in this proceeding.
We know of no facts or other reasons which should or, indeed, could lead this Board to a conclusion different from that of the Commission regarding this question.
Thus, we submit that reasonable assurance exists that outstanding safety issues can and will be resolved before the completion of construction without an evidentiary hearing on the issue at this time.
Respectfully submitted, William H.
Eichhorn, Esquire EICHHORN, EICHHORN & LINK 5243 Hohman Avenue Hammond, Indiana 46320 Maurice Axelrad, Esquire Kathleen H. Shea, Esquire Steven P.
Frantz, Esquire LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, NW Washington, D.C.
20036 By:
47 Wilfiam H.
Ei'cMhoYn ~
Attorneys for Northern Indiana l
Public Service Company
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION f
BEFORE THE ATOMIC SAFETY AND LICENSING BCARD In the Matter of
)
Docket No. 50-367
)
NORTHERN INDIANA PUBLIC SERVICE )
(Construction Permit COMPANY
)
Extension)
)
(Bailly Generating Station,
)
August 25, 1980 Nuclear-1)
)
CERTIFICATE OF SERVICE I hereby certify that a copy of Northern Indiana Public Service Company's Response to Board Questions With Respect to Pile Foundation was served on the following by deposit in the United States mail, postage prepaid, on this 25th day of August, 1980:
Herbert Grossman, Esquire U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Glenn O.
Bright U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Richard F.
Cole U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Howard K.
Shapar, Esquire Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Steven Goldberg, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555
. Susan Sekuler, Esquire Environmental Control Division 1E8 West Randolph Street Suite 2315 Chicago, Illinois 60601 Robert J. Vollen, Esquire c/o BPI 109 North Dearborn Street Suite 1300 Chicago, Illinois 60602 Edward W. Osann, Jr., Esquire One IBM Plaza Suite 4600 Chicago,' Illinois 60611
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Robert L. Graham, Esquire One IBM Plaza 44th Floor Chicago, Illinois 60611 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana 46312 Diane B.
Cohn, Esquire William B.
Schultz, Esquire Suite 700 2000 P Street, NW Washington, D.C.
20036 Richard L.
Robbins, Esquire 53 West Jackson Boulevard Chicago, Illinois 60604 Mr. George Grabowski Ms. Anna Grabowski 7413 W.
136th Lane Cedar Lake, Indiana 46303 Dr. George Schultz 110 California Michigan City, Indiana 46360
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WILLIAM H.
EICHHORN Eichhorn, Eichhorn & Link 5243 Hohman Avenue Hammond, Indiana 46320
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