ML19343D127
| ML19343D127 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/07/1981 |
| From: | Paton W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8104090534 | |
| Download: ML19343D127 (8) | |
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4-tI *@d#,M"" h UNITED STATES OF AMERICA NUCLEAR REGULATORY C0f1 MISSION
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BEFORE THE AT0!!!C SAFETY AND LICENSING JARD
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In the Matter of
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C0lSUMERS POWER COMPANY
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Docket Nos. 50-329 Or-1 & OL
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50-330 OM & OL (Hidland Plant, Units 1 and 2
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NRC STAFF RESPONSE IN OPPOSITION TO APPLICANT'S 110 TION TO DEFER CONSIDERATION OF SEISt11C ISSUES UNTIL THE OPERATING LICENSING PROCEEDING vn fiarch 18, 1981, Consumers Power Company (Consumers or Applicant) filed a !!otion To Defer Consideration Of Seismic Issues Until The Operating Licensing Proceeding.
Pursuant to 10 C.F.R. 62.730(c), the NRC Staff hereby responds to Applican* 's motion. The NRC Staff opposes the motion because (1) the instant,.oceeding is both an enforcement (0:1)M and a licensing (0L)U roceeding, (2) Applicant's affirmative defense p
to the Order modifying its construction permits could involve proposed remedial actions which require seismic considerations and (3) the Licens-ing Board in deciding the issues in this proceeding could modify the construction permits by its findings on certain design matters which require seismic considerations.
y On flarch 14, 1980 the Comission issued a Notice of Hearing on the Order Modifying Construction Permits. 45 Fed. Reg. 18124 (itarch 20, 1980).
y On October 12, 1978 the Chairman of the Board issued a Notice of Hearing on the application for a facility operating license.
43 Fed. Reg. 48089 (October 18,1978).
8104090 % 4 C,
. BACKGROUND On December 6,1979, the Nuclear Regulatory Commission issued an Order flodifying Construction Permits No. CPPR-81 and No. CPPR-82. This Order was based on the following: quality assurance deficiencies involving the settlement of the Diesel Generator Building and soil activities at the 111dland site, a naterial false statenent in the.FSAR and the unresolved safety issue concerning the adequacy of the renedial action to correct the deficiencies in the soil construction under and around safety-related structures and systens. The Order, if sustained, would prohibit Consumers fra, performing certain soil related activities pending approval of amendments to the construction permits.
On December 26, 1979 Consumers filed a Request for Hearing on the Order.
In that Request, Consumers stated its intention to move, pursuant to 10 C.F.R. 92.716, to consolidate the OM proceeding with those-issues relating to soil conditions and plant fill materials raised in the OL proceeding. Consumers filed such a Motion for Partial Consolidation on May 27, 1980.
In the Prehearing Conference Order dated October 24, 1980, the Board granted the Motion for Partial Consolidation.
ARGUMENT A.
The instant proceeding is in part an operating licensing proceeding Consumers' Motion repeatedly urges that consideration of seismic issues should be deferred until the operating licensing proceeding. This argunent ignores the fact, however, that the instant proceeding is in part an operating' licensing proceeding.
Indeed, it was in response to a motion by Consumers that the Board ordered the consolidation of the Oli
.' proceeding with those issues relating to soil conditions and plant fill materials raised in the OL proceeding.
Thus, insofar as an evaluation of the soils and plant fill issues at the OL stage involves-seismic input, the Staff submits that seisnic issues must be considered in this consolidated proceeding.
B.
An evaluation of Consumers' proposed remedial actions could require seismic analysis If the scheduled hearing was restricted to the issues stated in the Order itodifying Construction Permits, the Staff concedes that seismic issues would not be relevant to that proceeding.E This concession is, the only seismic " agreement" that the Staff had with Consumers.
In this regard, the Staff never agreed that seismic issues would have absolutely no relevance to the consolidateo OM-OL proceeding. Thus, Consumers' allegations that the Staff " reneged" on an agreement and " affirmatively misled" the Applicant with respect to seismic issues are untrue.
Since the scope at the hearing will not be limited to the issues' in the Order, it is likely that Consumers will raise the affimative defense that the problems identified in the Order either have been remedied or are the subject of proposed remedial actions.
In this regard, the Pre-hearing Conference Order stated that "the soil settlement aspects of the OL Proceeding... essentially will involve whether any ' fixes' that may be ordered in the OM Proceeding have been successfully implemented."
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Such a limitation would be appropriate in an enforcement proceeding.
Public Service Co. of Indiana (Marble Hill Generating Station Units 1 and2),CLI-80-10,11NRC438,441(1980).
However, a broader view is appropriate in this combined enforcement and licensing case. cf.
Consumers Power Company (Big Rock Nuclear Plant), ALAE-636, p. 23
- n. 22 (ftarch 31, 1981),
. If Consumers does raise this defense, the Board would be called upon to detemine whether the " fixes" would require an amendment to the construc-tion pemits.
The Board's detenninatfor, would include deciding whether seismic issues are relevant to the " fixes".
Consequently, they must be considered by the Board.O For exanple, if Consumers proposes to remedy the settlement problems asscciated with the Service Water Structure by extending a wall down to the glacial till, it would be necessary to consider seismic issues in approving such an amendment to the construction pemits.
Specifically, the Board would have to conclude that the wall structure as proposed tc be modified can reasonably be expected to withstand the Safe Shutdown Earthquake (SSE).
In reaching'such a conclusion, the Board must use a seismic design basis based on current seismic infomation rather than the 1972 seismic design basis established in the course of the construction pemit proceeding.
Consumers argues that the Dairyland casesE are factually distinguishable from Midland. While the Staff agrees that Midland is not absolutely on point with the Dairyland casesN it contends that the
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It must be noted, however, that the Staff will not have completed its review of seismic issues by the start of the hearing in July.
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Dairyland Power Cooperative (Lacrosse Boiling Water Reactor),
LBP-80-26, 12 NRC 367 (1980); ALAB-618, 12 NRC 551 (1980).
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Dairyland was strictly an enforcement' proceeding whereas Midland is an enforcement and OL proceeding; an SSE had never been approved for the Lacrosse reactor whereas an SSE had been approved for the Midland reactors.
. reasoning used and conclusion reached are applicable to the instant proceeding.
In Dairyland the Board had to determine whether a dewatering system should be dasigned and installed on a stated schedule. The Board opined and the Appeal Board agreed that in order to produce an adequate record on the necessity of a dewatering system, it was essential that the reactor's SSE be ascertained, not assumed.E Similarly, ir, order to develop an adequate and complete record on any proposed remedial actions at Midland which would require an amendment to the construction permits, it is important to ascertain the current SSE rather than to assume that the 1972 SSE is still valid.E This same view was expressed by two members of the instant Board at the prehearing conference on January 29, 1981.
Mr. Linenberger stated:
The only thing I can tell you is that this Board will absolutely not ignore seismic criteria questions in arriving at its decision about the adequacy of proposed remedial actions. The considera-tions are not separable, and to try to separate them would be a contrivance that is not in anyone's best interest.
(Tr. 790-91).
Chairman Bechoeffer, concurring with fir. Linenberger, stated "we won't accept as a given the 1972 value."
(Tr. 792). Thus, it is apparent that the Board will want to evaluate the proposed remedial actions in light of current seismic infonnation.
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12 NRC 367, 378; 12 NRC 551, 556 (1980).
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A letter from Robert L. Tedesco, Assistant Director for Licensing dated October 14, 1980 stated that the establishment of acceptable seismological input parameters is an open item in the NRC Staff's radiological safety review of the OL application.
gi C.
If the Board modifies certain design bases of the construction permits, a seismic analysis would be required Assuming arguendo, that the Board does not sustain the Order but instead decides to grant a lesser included remedy, such as certain modifications to the construction pennits, that decision could require seismic analysis.
In other words, depending on the nature of the ordered modification, seismic infonnation may or may not become relevant.
For example, if the ordered modification changes a design assumption that was based in part on seismic analysis, clearly the Board would have to consider seismic issues in approving that modification.
Conversely, i.f the Board orders a modification which has no seismic implications, that order would not involve any analysis or consideration of seismic issues.
Thus, the relevance of seismic infonnation in this OH-OL proceeding depends in large part on the initial decision reached by the Board. To exclude in advance any consideration of seismic issues in the OM-OL pro-ceeding could amount to restricting the Board decisionmaking powers.
Accordingly, the Staff submits that seismic issues must be considered in the event the Board orders a modification of any seismic-sensitive design assumptions.
CONCLUSION For the reasons stated above, Consumers motion to defer consideration of seismic issues should be denied.
Respectfully submitted, EL fi. W William D. Paton Counsel for NRC Staff Dated at Bethesda, Maryland this 7th day of April,1981.
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G-UNITED STATES OF AMERICA HUCLEAR REGULATORY CO:'. MISSION Ey 0RE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CONSUMERS POWER COMPANY Occket Mos. 50-329-0M & OL
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50-330-0M & OL (Midland Plant, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE IN OPPOSITION TO APPLICANT'S MOTION TO DEFER CONSIDERATION OF SEISMIC ISSUES UNTIL THE OPERATING LICENSING PROCEEDING in the above-captioned proceeding have been served on the following by deposit in the United States nail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 7th day of April, 1981.
- Charles Bechhoefer, Esq.
Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Summerset Street U. S. Nuclear Regulatory Conmission Midland, Michigan 48640 Washington, D.C.
20555 Philip P. Steptoe, Esq.
Administrative Judge Ralph S. Decker Michael I liiller, Esq.
Route r4, Box 190D Ronald G. Zamarin, Esq.
Cambridge, MD 21613 Alan S. Farnell, Esq.
Isham, Lincoln & Beale One First National Plaza Dr. Frederick P. Cowan 42nd Floor 6152 N. Verde Trail Chicago, Illinois 60603 Apt. B-125 Boca Raton, Florida 33433
- Atomic Safety and Licensing Board Panel Frank J. Nelley U. S. Nuclear Regulatory Conmission Attorney General of the State Washington, D.C.
20555 of Michigan Steward H. Freeman
- Atomic Safety and Licensing Assist ant Attorney General Appeal Board Panel Gregory T. Taylor U. S. Nuclear Regulatory Ctcmission Assistant Attorney General Washington, D.C.
20555 Environmental Protection Division 720 Law Building
- D oc t.d re and Service Section Laising, Michigan 48913 Office of the Secretary U. S. Nuclear Regulatory Commission Myron M. Cherry, Esq.
Washington, D.C.
20555 1 IBM Plaza Chicago, Illinois 60611
- c. J>.es E. Crur.ner, Esq.
Jear.n Linsley Co.isuners Poucr Cc pany Eay City Tic.es P12 !lest Michican Avenue 311 Fifth Street JscLson,Michiian 49201 Bay City, Michigan 48706 f*s. Barb 3ra Stamiris 5/95 'J. River frceland,riichigan 48623 Fr. Steve Gadler 2120 Carter Avenue St. Paul, ::innesota 55108
!lcnjell H. !*arshall, Vice President
!!id..est Environ ental Protection Associates RFD 10 M idland, l'.ich igan 4S540 J es R. Kates I.'3 5. L'ashington Avc.1ue 53cinaw, Michigan 43605
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l '~ililliam D. Patcn Ccunsel for fEC Staff
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