ML20009B485
| ML20009B485 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 07/01/1981 |
| From: | Fisher G U.S. DISTRICT COURT, DISTRICT OF COLUMBIA |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20009B483 | List: |
| References | |
| 80-1163, NUDOCS 8107160123 | |
| Download: ML20009B485 (14) | |
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No. 8o-tio September Term,198o People of the state of 1111nais, et al.,
United Sh[3 COUft Of Appeds Petitlancra ht let 0,:tri:t of e g g g,g g FILED JUL 1 1981 Nuclear RcEulatory Cannissien and Uulted Sta tes of Ametica, Respos.detit*;
GEMGE A Rgp Northern Indiana Putalic ervice company, CLt:mc Interveaur FETITIO.'( FOR RT"11.U OT AN ORDER OP 11tE !a'CI.T.AR UCUt.MORY COntISSIO's Eefore: McGOUNi, TAtD1.and k'tla. Circu t t _tvJ n. es
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'thLu caus.c.rse on to be hentd on a pertttoa toc r:". in e t.:n ord( t d the Nucle r.r ker.ula t cr. (:n mr.r.:on et.d war. a t t.ned b cour.cl. Cn canalder a f ov er.o lug, it ie
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Okut:iit'D.*db AtOUDGED by this. Cour t. that the order ca review herein la vacated and the car.c 1s t euande.1 to the Socleat Regulatoty Comissica with dircetions to include the pi'. tw.; depth,pves tion in the pe;. diag certificate pr.. cud tzen t hcarian, fut the rear.:>ns set t a:. ! !- I n t h e a !.t r h.:d rac.:o r sa.'d.
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4 Georg A. Fisher Clerk 8107160123 810700 POR ADOCK 05000 G
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em entre er judrpent-7t"' court ic Js t with a kin up p u tions to filt-b'ilu Of Could 01 *- "I t!""-
_r No. 80-1163 - People of the State.of 11H_n.olis v. D.C 3
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!GtFAT.M 4
Petitioners seek judicial revieu cf a Nuclear Regulatory Cos-mission ordar denying requests for hearing on a proposed change in the ' design: of the foundations of the Bailly nuclear pinnt on the southern shore of Lake Michigan in Porter County, Ittdiana, for which a construction permit was issued by the Atomic Energy Cottraission in 1974.
The NRC held that the proposed nhif t from the use of long pilings to short pilings did not amount to the "grariting, suspending, revoking, or amending 'of any license or constcuction permit" of such nature that a hearing would be required under section 189(a) of the Ato:nic Energy Act, 42 U.S.C. 5. 2239(a).
Instend, the Co=missica held that the purported change was merely the resolution of an issue specifically left open at the time of the issuance of the ccnstruc-tion permit.
Af ter reviewing the unique f acts of this case, houever, we arc forced to conclude that the proposed change did.wount to the type of modification for which a hearing is not only both desirable and feasible, but oiso one that was uithin the conte:nplation of Congros
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The " change" at issue ~ is Northern Indiana Public Service C'ompany's proposal, submitted in 1978--almost four years af ter construction _had been underway and at a time when construction was less than 17. complete and suspended since 1977--to drive the founds--
tion pilings for safety-related bu2.1 dings at the Bailly plant only no far as the glacial' lacustrine layer of the caEth, rather than y
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?urther down into the glacial till or to bedrock.
The question f or our decision is whether the NRC corr' cely found that the issue for later de"-n of. pile depth was reserved in the construction permit 4
pursu.mt to C.F.a. s 50.35(a), in which case the MC need not cond'xt de t
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- another hearing, or whether HIPSCO actually cc:maitted itself to one par,ticular piling depth at the time of the issuance of the construction pemic, in which case the MRC must hold another hearing on the proposed codification.
This court's recent decision in Shojly, v. Nuclear Regulatory comission, No. 80-1691 (D.C. Cir. filed Nov. 19, 1980), cert.
}; ranted,, 49 U.S.h.W. 38T/ (May 26, 1981), does not relate to
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t.he present casc.
ShoJ17 addressed the question of whether section 1
189(a) requires that the NRC hold a hearing even af ter 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 innuiry:
the determinntion whether the proposal even conctitutes a " change" from the original construction pemit or instead is nerely a resolution of an earlier problem.
In that regard, Sholly ic not relevant.
Although the Commission certainly has presented at Icast a credibic argument in favor of its conclusien that the issue uss reserved for later determination, we thbik petitionera have brought to light. several facts that are sinply too weighty to.
be ignored.
For instance, in its Preliminary Safety Analysis Report ti1PSCO stated numcrous times under oath that, piles would te driven into glacial till or to bedrock.
Sectica 2.5.4.3.1. crated that " Class I structures
. will be supported by high-capacity nOn-displacetaent piles (which) will be driven into the sr
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. glacial till.
or to the rock eurface."
Again, the company affirmed in Section 2.5.4.3.2. that " class I ceructures 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 dissent of one or the five Commic.uioners sitting on this case.
Sce PSAR, Section, 2.5.4.1. & 2.5.4.3.3.
Furthermore, the drawings. cubmitted as part of NIPSCO's construction perrsit applicat!'.n also show the piles extending to bedrock or glacial till.
See PSAR Figures 2.5-2.9 & 2.5-3.0.
. Even the ' report of the AEC licgulatory-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 clase. I structures and some other' major Units' uill be supported by piles driven into the compact glacial till or driven to the bedrock sulface."
SER, J.A. at 157.
Last, and most telling in our view. uns the reaction of l
the NRC s,taff itself ~when confrot. -i with NIPSCO's proposed change.
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- When the permittee notified the staff that it had decided to i.
drive the piles only to the upper levelr. of carth, as distinct 1
from.the glacial till or 'bcdrock, the staff immediately suspended all construction activity on the Bailly nuclear power plant and spent.some two years or ctore exploring the issue.
In light of O
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che staff's own reaction to the shor* pilings plan, wa are re-luctant to, assume that NIPSCO had never previously co=mitted
. itself to any other piling icagth plan.
We:are aware,.,f course, that neither the Co=ist.icn nor the courts have ever delineated precisely the nature of a change
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requiring hearing under section 189(a), and that the Com:aission I
cust be credited with som expertise in determining which types of structural. changes are de minimis and which types require i
renewed hearing procedurcs, Furthermore, we are naturally vary of discouraging techn' ale -ical innovations during the course of nuclear **.at construction.
Nevertheless, in this case we are not squarely w,tfronted ulth an issue of complex technological i
icplications. requiring substantial deference, but with one of to the public, the ultimate question being wha t the feirncss public could reasonably havo understood to have been scetled in'the construction pcrmit.
For the reasons described above, tisf j ed by the Commission's handling of this matter.
ge are not-sa Mc think that there is' an easy solution to this dispute which would allou the public to air its views as to what appears to be n' change in the original foundation plan and also allou I
l taS00 to proceed with ccustructica without tnta del.sy. There is l
presently pending a hearing on' a proposed amendment of the con-
- struc, tion permit to change the completion dcte of the 11ailly plant to 1989.
It was represented to us ut oral argument that
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it vill not, in any event, be porcible for construction to be r
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resumed for six months from the present time.
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c, Therefore, we hava concluded that the case should be remanded r
to the Com:nission with directions to include the piling. depth question in the rending certificate acende nt hearing.
It woul.d not appear that such a hearing shoul<1 consume much time or re-quire a substantial delay in.the hearing date, because the staff and the Advisory Comittee have already donc significant work on the problem and presumably will be ready, on short notice, fully to address the piling depth question.
The c.biguities, to our inind at least, created by the permittec's departure frca its original representation with respect to the piling depth argue strongly, as a practical matter, for the taking advantage of the pending certificat.c amend:nent to put to rent what could be a latent defect which casts a shadow ten years down the road.
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EXillBIT B PAG: 166 R EC EIV E 0 2
.di.
3 ATTCW,ry ca r.;iAL 4
UNITED SYATES OF AMERICA NUCIEAR REGULATORY dOMMISS ION 5
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 6
7 In the Ma tte r o f :
)
) Do c ke t No. 50-367 l
8 NORTHERN INDIANA PUBLIC
)
SERVICE COMPANY
) (Co ns cruc cio n Pe rait 9
)
Ex te nsio n)
(Bailly Ge ne ra ting Station, )
10 Nuc le a r-1)
)
11 The continued deposition of EDMUND A.
12 S C HROE R, ta ke n a t the ins tance of the Porter County Chapte r Inte rveno rs, pu rs uant to agree me nt as to time 13 and place and pursuant to the Federal Rules of Civil Pro ce du re, taken be fore Ronald E. Knight, R. P. R. and 14 Notary Public in and for the County of la ke and. S tate of Indiana, at the Indus trial Relations Conference 15 Room, Northern Indiana Public Service Company, 5 265 Hohman Avenue, Hammond, Indiana, on the 12th day is of June, 1981, at the hou r of 10 :15 in the morning.
17 18 19 20 a
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23 24 Fl551NGER & KNIGHT, INC.
25 cnsar aeronisms l
esos HoHMam Avemus 1
HAMMOND. INDI AN A 44320 I
L PHONE 219 Gil.7293 i
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ll EXHIBIT B PAGE 25 8 t
,A To the, extent that it was allowed in the rate 2
base, in a' rate proceeding, yes.
3 Q
And if it is amortized or expensed, then the.
4 immedia te ' ef fect is not upon the rate payers bu t 5
upon the s hareholders of the company?
6 A
Again, using the word "immedia te," I think that 7
that would be the result.
However, as I think I a
indicated in my prior tes timony, that where you 9
have an ongoing rate case procedure on a fairly 10 regular hasis 'as we have, that uleima tely the 11 ra te payer. is going to bear the burden without 12 regard to the accounting handling for a shorter 13 time frame.
14 Q
Do you know in what res pe c t the Sargent & Lundy 15 197 9 cos t es tima te was felt by the company to be 16 de ficie nt?
17 A
1 d o no t.
18 Q
Who would know ' that?
Is A
Mr. S horb.
M iMR.- VOLLEN :
Le t 's go ~o f f the re co rd.
21 (A f s hort < reces s was had.)
22 MR. VOLLEN:
Back on the re co rd.
23 I have no fu rt he r ques tio ns of 24 Mr. Schroer.at this ti me.
I think we ought 25 to no te 'for the reco rd that we are s till
i PAGE 25 9
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1 seeking production of additional documents 2
from the. company about which Mr. Schroer 's 3
tes timony may be re leva nt.
Particu larly I'm talking about board minutes.
4 5
Some you 've agreed to give us,
6 Mr. Eichhorn; o t he rs, as you know, we 're 7
seeking via an order from the Licensing a
Boar d.
9 2-When we receive those documents, which 10 we.'re: going to receive, it may become 11 necessary to depose Mr. Schroer on those.
' 12 But as of right now I have no further 13 ques tions.
14 I suppose I also ought to ' no te for is the racerd what I s aid t his mo rning, that 16 unless we can find some other means to learn 17 about wha t de cis io n, wha t manage me nt 18 de cis io n-he ma kes a nd whe n he ma kes i t wi th l
19 res pe c t ~. co the compa ny 's plans fo r 20 cons truction, we may have to recall him to 21 as certain that.
22 MR. EICHHORN:
O ka y.
So the re 's no 23 misu nde rs ta nding, I want the record to 24 de cla re that I'm not agreeing to fur ther 25 depos ition of Mr. S chroe r.
You 've found i t
i-PAGE 260
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1; necessary to put your ' desire on tho' record.-
2: l 1.want to put my laek of agreementi on to l
S your desire.
i 4t MR.. VOLLEN S u rely.
3 S'-
MR. '. E ICHHORN :
As far as accommodating I
1l you.on :the i decision of the company, as 'to 6
77 when it: makes that de cis io n to go 'fo rward,
i sii we; can agree to advise: you on the date that l
tlSij the: decision is finaliEed by the company.
i
'10 )
That advice will be in writing, so there ill' will be > no misunders tanding.
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! 12':
MR. VOLLEN:
Okay.
Jus t to see if we l
13!
can 't get our unders tanding of that clear.
i 14 :
The ambu guity I see in' tha t, Bill, is in 15; the phrase " finalized by' the company. "
10 Becaus e Mr. Schroe r 's tes timony was abou t 17 his ". making the decision ~ and his uncertainty 18 as.to 'whe the r o r no t he nee ded boa rd 19 approval, -whether it would go to the board.
20 :
And there 'might be a long time lag, 21 theoretically, be tween his making the 22 :
decision.and going to the board.
23
-If by " finalized" you mean board action 24 or boa rd approval of i t, that can be a long 25 perio d 'of time.
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i PAGE 263 1
.. And, secondly, when you say " finalized,
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there may be action taken before it is 2
3 finalized.,
i
, <.n Yo u. itnow the reason for my concern -
n 4
about eknowing when progress is going to be 5
6 made>is that our position is that cons truc-7 Cion.ought'not to resume prior -- ought s t not -- cannot really resume prior to final' 8
l action.tgranting cons truction permit extensic,n.
9 We disagreed with you on that and you with n
10
.No_ uncertainty on that, as to different; 11 us.
But we do want to know if i
12 le gal. pos itions.
13 the company does plan to resume cons truction as we said in the notice we filed with the 14 board.suffi.cf.antly in advance of the actual 15 16 cons truction s o that the issue can be litigated'in a res ponsible way f rom every-17 18 body 's a tandpoint..
So we do n 't have to s tart litigating whe ther or not you can-m 19 resume.with. the bulldozers at the edge o f 20 21 tha excavatt.on, abou t to s tart pushing dirt, That 's the reason.for the reques t to 22 23 know what-the plans are.
24 MR. EICHHORN Oka y.
25 MR. VOLLEN:
Can you tell me and are 1
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1 PAGE 2 62 I
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you wi'lling to tell me what' you - h' An' by " ^
e 2
i
" finalized '?
- 8 M'R. ' E IC HHORN :
Yes.
I me a n to ' te'll" yo u
4 that we'are not going to give you informati on i
3 regar' ding a' decision until it becomes the 6
compa'67 position.
Now, wha':ever that takes
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7 I 'm'~ no' ' go'ihg to give you a deci'sion tha t' t
8 s ta nds a chance of being reversed internally.
8 MR. VOLLEN:
I unders tand.
10 NR. EICHHORN:
When it becodes the Il fi na l co mpa ny po s i tio n -
no t whe n Mr. S ho rb 12 decides 'cnr necessarily when Mr. Schroer 13
,,y ; ' "I 'vd "ma de the decision but I want to g-14 talk 'it ove r with somebody. "
When it becomes 15
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finallf the ' company position, we 'll notify
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is you in writing so there 's no misunders tand-17 l
ing what thS' decision is,
la MR. VOLLEN :
Go o d.
That part is fine.
18 What I want to know is :
Are you going 20 to give me the information before any 21 ma de 7 implementation is 22 MR. EICHHORN:
Mr. S chroer jus t D
re minde'd me, a nd p ro pe r ly s o, tha t if the re 24 s hould'b'c a resumption of full s cale cons tru c tion be fo re the re 's a ' final
PAGE263 I
decision made, you will be notified of that 2
-MR. VOLLEN :
Tha t 's really -- I want to 3
know about the resumption of cons cruction 4
a c tivi ty.
5 MR. EICHHORN:
All vi.ght.
s
- MR. VOLLEN:
And you 'll le t me (fo: w 7
when the. decis ion to resume is made, is tha t, 8
151.-
8 MR. EICHHORN:
Right.
10 MS. MURRAY:
Let me as k a ques tion.
11 Wha t do. you mean by " full s cale "?
12 MR. EICHHORN:
I 'm no t going to be t
13 deposed.
We 'll tell you when the decision 14 1s made to resume cons truc tion.
- f the i
15 physical activity takes pla ce be fo re that 16 decision is made, we will advise you physien 1
17 activity towards co ns t ru c tio n is taking 18 pla ce.
Is MR. VOLLEN:
Or is going to take 20 pla ce, whe n you ma ke the decision to do it.
21 t,..., -
MR.1-EIC HHO RN :
Yes.
Right.
L e ic c
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22
.:I MR.s VOLLEN:
0 ka y.
23 MR. EICHHORN:
Do you have any 24 ques tions, S teve ?
t;,
25 MR.
LEWIS :
I don't have a ques tion.
E l
PAm:264 l
I j us t want to s ta te two things for the 2
re co rd.
3 Firs e of a 11, it 's particularly valuable, 4
particularly to counsel;of the
?a f f, to 5
co mni nica te.
So I thank all of the par ties
.. a t :a r y 6
' fo r t ha t.
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7 As to this advice le tter' that yon drer 1 mi a m
. ; 1 f. c se
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a peaking of, Mr. Eichhorn,'. Il as~sume there'e
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will be copies to all;partiles ?
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t i.te 10 MR. EICHHORN:
Sure.
- i tion 11 MR. LEWIS :
Those are my only comments.
12 MR. EICHHORN:
I havet no redirect.
1 13 Tha nk' you, Mr..S chroe r.-
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,, r th ini 14 MR. VOLMN:
Thank you, t Mr. S chroar.e t.
t c.m
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15
' MS. WHICHE R:
Thank you, Mr. S chroer.
l 16 m,. :,.
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(FURTHER DEPONENT-S AITE. NOT.): a io bL 17
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18
.a.
ry.
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'a y e 19 Witness i
20 21 Subscribed and Sworn to be fore me chia day 22 o f __
1981.
t;h t 23 24 No tary Pub lic
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