ML19350C791
| ML19350C791 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 03/18/1981 |
| From: | Steptoe P CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19350C792 | List: |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8104060703 | |
| Download: ML19350C791 (10) | |
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In the Matter of
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Docket Nos. 50-329 OM
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50-330 OM CONSUMERS POWER COMPA?W
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Docket Nos. 50-329 OL (Midland Plant, Units 1 and 2))
50-330 OL APPLICANT'S MOTION TO DEFER CONSIDERATION OF SEISMIC ISSUES UNTIL THE OPERATING LICENSING PROCEEDING At the second prehearing conference in this matter on January 29, 1981, the NRC Staff, reneging on an agreement previously worked out with Applicant, proposed that the scope of this soil settlement hearing be expanded to include seismic issues.
(Tr. 775-792).
The NRC Staff did not indicate the extent to which seismic issues should be consi-dered, the Staff was unable to state when it would be ready for evidentiary hearings on these issues (Tr. 785), and apart from referring to the Licensing Board and Appeal Board decisions in Dairyland,1! the Staff gave no explanation of its sudden change of course.
Independently, the Board itself expressed an interest in the seismic design input for the remedial work.
(Tr. 786, 790-91).
Applicant believes l_/
Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), LBP-80-26, 12 NRC 367 (1980); ALAB-618, 12 NRC (November 17, 1980).
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D that the Dairyland cases do not compel consideration of seismic issues in this proceeding.
Midland, unlike the Lacrosse Boiling Water Reactor, is not presently operating, and therefore consideration of seismic issues can be deferred unti1~the operating license stage with no prejudice to the public health and safety.
Further, deferring consideration of seismic issues, which are not yet ripe for adjudication, is important to achieve expeditious resolution of soil settlement i'ssues, as mandated by the Commission.
See 45 Fed. Reg. 18214 (March 20, 1980) and attached affidavits of Thiru Thiruvengadam and James Cook.
I.
-RECONSIDERATION OF THE SEISMIC DESIGN BASIS OF THE MIDLAND PLANT IN THIS PROCEEDING IS UNNECESSARY AND IMPRACTIC/BLE.
The Staff's suggestion that seismic issues must be considered in this soil settlement proceeding is apparently based on a misreading of the Dairyland cases.2/
Dairyland involved a hearing in respect of an order to show cause why the licensee of an operating reactor should not submit a
-detailed design proposal for a site dewatering system to
- preclude the occurrence of liquefaction in the event of an earthquake.
The Commission's Order appointing the licens-ing board in the Dairyland case noted that.the show-cause orderzwas based on the conclusion that:
2f; See footnote'1.-
-2
[C]ontinued operation of the plant for an extended period of time may be potentially hazardous because the LACBWR site could be subject to liquefaction if the licensee-designated safe shutdown earthquake vere to occur.3/
In its prehearing conference order, the Dairyland 9
Licensing Board found that the potential for liquefaction depended upon the extent of the seismic hazard.
While both the licensee and the Staff believed that a 0.12g peak ground acceleration value for the Safe Shutdown Earthquake (SSE) was the appropriate measure of the seismic hazard, that value had never been formally established or adjudicated for the Lacrosse Boiling Water Reactor.$/ The Dairyland Licens-ing Board questioned the 0.12g value because the equivalent value for a close-by site (Tyrone) had been determined to be 0.20g.
The Licensing Board concluded that identifying the appropriate SSE was important in determining the need for a dcwatering system, and that it was not barred from consider-ing SSE values greater than that assumed by the licensee and the Staff by certain references to 0.12g value in the Show Cause Order and in the July 29, 1980 Commission Order appoint-ing the Licensing Board.
The Appeal Board affirmed, 3/
NRC Order, Docket No. 50-409 (July 29,~1980) 2 CCH Nuclear Regulation Reporter.130,506.
4/
.The SSE concept is part of 10 CFR Part.100 Appendix A, which was. promulgated in 1973.
The Lacrosse facility received a provisional operating license in 1967.
At the time of the show cause' order in Dairyland, there
.was'a parallel ongoing adjudicatory proceeding involving the: licensee's application to convert its provisional operating license into a full-term operating license...
In the Dairyland case, the Licensing Board re-fected the suggestion that identification of the proper SSE could be deferred until the operating license proceeding.
The Board noted that the OL proceeding had to await comple-tion of the Staff's SEP program, which would require a two year delay in taking up the seismic issue.
Dairyland, supra, 12 NRC 367, 378.
This case is distinguishable from the Dairyland situation in one crucial respect.
This case involves an order to modify construction permits for a nuclear power plant which is being built.
This case is not, like Dairyland, a.show-cause proceeding involving a present, continuing
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seismic hazard to a plant which is actually operating.
Thus, for Midland, unlike Dairyland, deferral of considera-tion of seismic issues until the operating license proceed-ing will not have any adverse effect on the public health
-and safety.
And, of course, it has long been established as a matter of law that definitive safety findings can be deferred in the NRC licensing process until operation is
=actually licensed.
Power Reactor Development Co. v.
-International Union ~ of Electrical, Radio and Machine Workers,
'AFL-CIO,.367 U.S. 396, 407-409 (1960).
Another distinction which can be made is that, unlike the situation in.Dairyland, a seismic design basis has been formally established'for Midland.
At the time the construction permit was issued, the NRC approved a maximum or: design basis earthquake based on a. peak ground acceleration
value of 0.12g.
See attached affidavit of Thiru Thiruvengadam:
Consumers Power Company (Midland Plant, Units 1 and 2), LBP 72-34, 5 AEC 214, 219-220 (1972).
And although the issuance of the construction permit predated the effective date of 10 CFR Part 100 Appendix A by one year, in effect the construc-tion permit seismic design review reflected the forthcoming regulation.
Proposed Appendix A had already been published for comment in 1971 (36 Fed. Reg. 22601).
As the Director of Nuclear Reactor Regulation has observed:
Although these regulations (10 CFR Part 100 Appendix A) became effective in December 1973 they were to a large part based on practice prior to that date. During that time safe shutdown earthquake (or " design earthquake")
design ground motion were adopted based on geological and seismological recommendations o f the U. S. Geological Survey and the U.S. Coast and Geodetic Survey, and engineering recom-mendations from prominent earthquake engineers such as Dr. Nathan Newmark and Dr. John Blume.
In the Matter of Petition Requesting Seismic Reanalysis, DD-80-1, 11 NRC 153, 154-155 (January 10, 1980).
Because a design basis earthquake has been for-mally. established _for the Midland. site, a change in this design basis would be a "backfit" decision which pursuant to 10 CFR 550.109. would require that there be a finding that such action will provide " substantial,~ additional protection I
which is required for the public health and safety or the common defense and security." 'As the Staff itself has acknowledged the many conservatisms which exist in the design methodologies employed in the design of both old and
.new nuclear-plants, and - the. inherent level-of seismic resis-
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tance of nuclear power plants are factors which must be taken into account in the evaluation and resolution of seismic issues.
In the Matter of Petition Requesting Seismic Reanalysis, DD-80-1, 11 NRC 153 (1980).
Applicant fails to see how the Staff can urge this Board to rush into a major backfit decision, when it seems cbvious that the site speci-fic review which the Staff itself has requested will not be available in time for the scheduled hearings.
See attached affidavit of Thiru Thiruvengadam.
Of course, it is true that some seismic design input must be used in connection with the installation of caissons under the auxiliary building and some of the other remedial work proposed by Applicant.
However, it is equally true.that present uncertainty concerning possible backfits required by a redefined SSE affects the remedial work in exactly the same way that it affects all other construction carried on by Applicant at the Midland site.
This uncertainty results in.a financial risk to-Applicant.
But this financial risk was implicit in the issuance of the Midland construction permit.. The licensee always builds at its own risk.
Power Reactor. Development Co. v.
International Union of Elec.,
Radio and Machine Workers, AFL-CIO, 367 U.S. 396, 415 (1961);
Porter County Chapter of the Izaak Walton League v. NRC, 606 F.2d 1363, 1369-7.
( D. C.' Cir. 1979).
Subjecting one small portion' of the Midland plant to preliminary seismic design reconsiderationcat this point does not meaningfully reduce
'the-financial riskito Applicant.
See attached Affidavit of 4 4
.,[
4 James Cook.
And any reduction in risk so gained would be purchased at too high a cost if it means lengthy delays in this proceeding, and in start-up of the Midland units.
II.
REVIEWS OF THE SEISMIC DESIGN BASIS FOR MIDLAND CANNOT BE ACCOMPLISHED IN THIS PROCEEDING WITHOUT UNREASONABLE DELAY.
As the attached affidavit of Thiru Thiruvengadam establishes, it was not until the receipt of NRC staff technical review questions in 1978 that Applicant learned that the NRC Staff had any concern about the magnitude of the design basis earthquake approved at the construction permit stage, five years previously.
And despite receipt of a letter from Robert L. Tedesco of the NRC Staff dated October 14,_ 1980, Applicant was affirmatively. misled by Staff counsel into believing that the ongoing seismic review requested by the Staff could take place in parallel to and separate from this proceeding.
(Tr. 775-780).
For this reason, Applicant finds itself unprepared to produce and defend a site-specific seismic review of the Midland plant in accordance with the schedule for summer hearings discussed in the second prehearing conference on January 29, 1981.
See attached affidavit' of Thiru Thiruvengadam.
At the second prehearing conference it was.sug-gested that Applicant could nevertheless present its case based on an " arbitrarily" high seismic design input, perhaps using a.20g acceleration value.
(Tr. 786).
In the first place,Hif the design basis earthquake for Midland is to be -
changed, this is a major backfit decision which requires more than an " arbitrary" finding by this Board.
Applicant does intend to limit its own financial risk by incorporating into the proposed remedial work a seismic design margin in excess of the construction permit
. requirements.
See attached affidavit of Thiru Thiruvengadam.
But in the absence of a site specific seismic review concurred in by the Staff, it is difficult to conceive of what standard the Board could use to determine whether Applicant's design margin is sufficiently prudent.
Moreover, much of the remedial work, such as the placement of caissons under the auxiliary building, will have an effect on the seismic response of the supported structures and equipment.
Approval of a seistuic design margin for the remedial work, in isola-tion, will not lead to any improved level of confidence about the overall seismic resistance of the supported struc-tures and equipment.
Yet it would obviously be absurdly time-consuming, wasteful, and inappropriate to reanalyze all the structures and equipment at the Midland plant three times, once using the' construction permit approved earthquake; again, using a different design input " arbitrarily" established for purposes of this proceeding; and a third time to a
. definitive design basis earthquake determined for the 0.L.
proceeding using the site-specific methods described in-Dr.~Thiruvengadam's affidavit.
The point is that the pendency of the OL proceeding, at which the appropriate design basis earthquake for Midland will certainly be thoroughly examined -
in the basis of more complete information, makes it redundant and' unnecessary to examine the issue in an incomplete and
~ limited context in this proceeding.
The Commission's notice appointing the Licensing Board in this matter indicated that in considering whether to consolidate issues in the OM and OL proceedings, "the Board shall consider whether such consolidation would ad-versely affect the expeditious resolution of the issues...."
The Board's Prehearing Conference Order granting Applicant's motion for consolidation followed this admonition.
We believe the same standard should be applied in ruling on the Staff's suggestion that the scope of this hearing should be expanded to include seismic issues.
The attached affidavits establish that the site-specific seismic review for Midland is not yet ripe for consideration by this Board, and that awaiting resolution of seismic issues will almost certainly result'in significant delays in this proceeding.
These affi-
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davits are not in contradiction to anything said by the Staff, which at the second prehearing conference, was unable even to' estimate when its own review will be complete.
(Tr. 785)l/
Applicant strongly urges this Board to defer until the operating license proceeding the issue of whether the seismic design-basis established at the c.p. stage for the Midland plant is adequate.
In view of the fact that the
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Counsel'for the NRC Staff did make the suggestion, which.he'himself-admitted was " hearsay" and
" speculation," that the Staff might reach agreement (Tr. 785).
with Applicant "by some time this summer."
We doubt that.
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Midland plant is not yet operating, nothing compels the Board to take up at this time an issue which is not yet ripe for adjudication.
Respectfulp submi ed,/ /
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,e M-LG*C One ofM he Att6rftey5'for;
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Applicant
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' ISHAM, LINCOLN & BEALE
- Suite 4200 One First National Plaza-Chicago, Illinois _60603 312/558 7500 L
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