ML20009A464

Order Vacating CLI-79-11 & Directing NRC to Include Piling Depth Question in Pending CP Amend Hearing. Ambiguities Created by Licensee Departure from Original Plans Must Be Examined

ML20009A464
Person / Time
Site:	Bailly
Issue date:	06/01/1981
From:	Fisher G U.S. DISTRICT COURT, DISTRICT OF COLUMBIA
To:	NORTHERN INDIANA PUBLIC SERVICE CO., NRC COMMISSION (OCM)
Shared Package
ML20009A462	List: ML20009A464
References
80-1163, NUDOCS 8107130177
Download: ML20009A464 (6)

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• co't 70 Irr rusLism szs recLt KuL: s (r) hitch fstates Gmtrf of Appsals Fo,R THE DISTRICT or CoLUMBI A CIRCUIT No. so_n63 September Term,1980 People of the State of Illinois, et al., UDil6d SIBIGS court Of Appeals Petitioners for tht D:stdct cf Cc!,;-a:a Citedt v-flLED Jut 2 mei Nuclear Regulatory Commission and United States of America, Respondents GEORGE A. FISHER CLGRK Northern

• Indiana Public Service Company, Intervenor PETITION FOR REVIEW OF AN ORDER OF THE NUCLEAR REGULATORY C050!ISSION Eefore: McC0WAN, TA>Di and WAI.D, Circuit Judges JEDEEEEI This cause came on to be heard on a petition for review of an order of the Nuclear Regulatory Commission and was argued by counsel. On consideration of the foregoing, it is ORDERED AND ADJUDGED by this Court, that the order on reviev herein is vacated and the case is remanded to the Nuclear Regulatory Commission with directions to include the piling depth question in the pending certificate amendment hearing, for the reasons set forth in the attached ccmorandum.

Per Curiam For the Court i

6 c. 61, Georg A. Fisher j ,

Clerk l

B111= of oosto cast be flied within 14 Asv: after entry of judccant. Thr. Court loo's c with disf avor

! upon cotions to file billa of costs out of tico.

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No. 80-1163 - People of the State of Illinois v. MRC FDDRANDOI l Petitioners seek judicial review of a Nuclear Regulatory Com-mission order denying requests for hearing on a proposed change in the design of the foundations of the Bailly nuclear plant on the southern shore of Lake Michigan in Porter County, Indiana, for which s

a construction permit was issued by the Atomic Energy Commission ,in 1974. The NRC held that the proposed shift from the use of long pilings to short pilings did not amount to the " granting , suspending, revoking, or amending of any license or construction permit" of such nature that a hearing would be required under section 189(a) of the Atomic Energy Act, 42 U.S.C. 5 2239(a) . Instead, the Commission held that the purported change was merely the resolution of an issue specifically left open at the time of the issuance of the construc-tien permit. Af ter reviewing the unique facts of this case, however, we are forced to conclude that the proposed change did amount to the type of modification for which a hearing is not only both desirable and feasible, but also one that was within the contemplation of Congress.

The " change" at issue is Northern Indiana Public Service

! Company's proposal, submitted in 1978--almost four years af ter construction had been underway and at a time when construction was less than 1% complete and suspended since 1977--to drive the founda-tion pilings for safety-related buildings at the Bailly plant only

! so far as the glacial lacustrine layer of the ear'th, rather than further down into the glacial till or to bedrock. The question for our decision is whether the NRC correctly found that the issue of pile depth was reserved in the construction permit for later decision pursuant to C.F.R. 9 50.35(a), in Wich case the NRC need not conduct

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l another hearing, or'whether NIPSCO actually committed itself to one particular piling depth at the time of the issuance of the construction ~ermit, p in which case the L..c must hold another

'. hearing on the proposed nodification.

This court's recent decision in Sholly v. Nuclear Regulatory Commission, No. 80-1691 (D.C. Cir, filed Nov. 19, 1980), cert.

granted, 49 U.S.L.M. 3S77 (May 26, 1981), dccc not relate tc the present casc. Shelly addressed the question of whether section 189(a) requires that the NRC hold a hearing even after it makes a finding that a proposed change presents "no significant hazards."

In the present case, however, we are dealing with the predicate to such an inquiry: the determination whether the proposal even constitutes a " change" from the original construction permit or instead is merely a resolution of an earlier problem. In that regard, Sho11v is not relevant.

Although the Commission certainly has presented at least a credible argument in favor of its conclusion that the issue

wel reserved for later determination, we think petiti.oners have brought to light several facts that are simply too weighty to be ignored. For instance, in its Preliminary Safety Analysis Report NIPSCO stated numerous times under oath that piles would be driven into glacial till cr to bedrock. Section 2.5.4.3.1. stated that " Class I structures . . . will be supported by high-capacity non-displacement piles . . . [which) will be driven into the A

glacial till . . . or to the rock surface." Again, the company affirmed in Section 2.5.4.3.2. that " Class I structures and cer-tain other major units will be supported on high capacity pile foundations driven to the underlying glacial till or bedrock."

Similar examples abound throughout the Report, and are the basis ,

for the disnent of one of the five Commissioners sitting on this casc. Sea FSAR, Sections 2.5.4.1. & 2.5.4.3.3.

Furthernore, the drawings submitted as part of NIPSCO's construction permit application also show the piles extending

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to bedrock or glacial till. See PSAR Figures 2.5-2.9 & 2.5-3.0.

Even the report of the AEC Regulatory Staff creates the same impression. In its Safety Evaluation Report on the Bailly construction permit application, the staff noted that the appli-cant [NIPSC0] has indicated that Class I structures and some other major units will be supported by piles driven into the compact glacial till . . . or driven to the bedrock surface."

SER, J.A. at 157, Last, and most telling in our view, was the reaction of the NRC staff itself when confronted with NIPSCO's proposed change. .

When the permittee notified the staff that it had decided to drive the piles only to the upper levels of earth, as distinct from the glacial till or bedrock, the staff immediately suspended all construction activity on the Bailly nucl' ear power plant and spent some two years or more exploring the issue. In light of l

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I the staff's own reaction to the short pilings plan, we are re-luctant to assume that NIPSCO had never previously committed 1 itself to any other piling length plan. i l

We are aware, of course, that neither the Commission nor  ;

the courts have ever delineated precisely the nature of a change requiring hearing under section 189(a), and that the Commission must be credited with some c::pertice in determining uhich types

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! of structural changes are de minimis and which types require

, i renewed hearing procedures. Furthermore, we are naturally wary of discouraging technological innovations during the course of nuclear plant construction. Nevertheless, in this case we are

not squarely confronted with an issue of complex technological implications requiring substantial deference, but with one cf l fairness to the public, the ultimate question being what the i public could reasonably have understood to have been settled ir the construction permit. For the reasons described above, l .

we are not satisfied by the Commission's handling of this matter. l

. We think that there is an easy solution to this dispute which would allow the public to air its views as to what appears

! to be a change in the original foundation plan and also allow l i l

NIPSCD to proceed with construction without undue delay. There is l

presently pending a hearing on a proposed amendment of the con-struction permit to change the completion date of the Bailly plant to 1989. It was represented to us at oral argument that it will not, in any event, be possible for construction to be resumed for six months from the present time.

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Therefore, we have concluded that the case should be remanded to the Commission with directions to include the piling _ depth question in the pending certificate acendment hearing. It would not appear that such a hearing should consume much time or re-quire a substantial delay in the hearing date, because the staff and the Advisory Committee have already done significant work on the problem and presumably will be ready, on short notice, fully to address the piling depth question. The ambiguities, to our mind at least, created by the permittee's departure from its original representation with respect to the piling depth argue strongly, as a practical matter, for the taking advantage of the pending certificate amendment to put to rest whet could be a latent defect which casts a shadow ten years down the road.

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