ML20081E893

Reply to Applicant 831014 Response to Second Supplemental Memorandum in Support of B Stamiris 831005 Motion to Litigate Two Dow Issues.Issues Timely Raised & Present New Evidence.Certificate of Svc Encl

ML20081E893
Person / Time
Site:	Midland
Issue date:	10/31/1983
From:	Bernabei L GOVERNMENT ACCOUNTABILITY PROJECT, STAMIRIS, B.
To:	Atomic Safety and Licensing Board Panel
References
78-389-03-OL, 78-389-3-OL, 80-429-02-SP, 80-429-2-SP, ISSUANCES-OL, ISSUANCES-OM, ISSUANCES-SP, NUDOCS 8311020280
Download: ML20081E893 (7)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY CD) MISSION 00CHETE0 USNRC ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges . '83 NOV -1 P12 :03 Charles Bechhoefer, Chatraan Dr. Prederick P. Cowan q q _ ,,

,s. y ., .

Dr. Jerry Harbour -

% Ys _

_w ASLBP Nos. 73-389-03 OL

) 80-429-02 SP In the Matter of )

) Docket Nos. 50-329 OL CONSUMERS POWER COMPANY ) 50-330 OL

)

7 (Midland Plant, Units 1 and 2) ) Docket Nos. 50-329 OM

) 50-330 OM

)

INTERVENOR BARBARA STAMIRIS' BRIEF REPLY TO APPLICANT'S RESPONSE TO SECOND SUPPLEMENTAL MEBORANDUM IN SUPPORT OF INTERVENOR BARBARA STAMIRIS' )DTION TO LITIGATE DOW ISSUES On October 5,1983, intervenor Barbara Stamiris filed with leave of this Atomic Safety and Licensing Board (" Licensing Board"), a brief supporting litigation of the following two Dow issues:

1) Consumers Power Company (" Consumers") used and relied on U.S. Testing test results to fulfill Nuclear Regulatory Connission ("NRC") require-ments when it knew the test results were invalid, and

2) Consumers knowingly misrepresented to the NRC that a single test boring taken near the diesel generator building indicated that i unmixed cohesive fill had, been used, or alternatively, did not i disclose to the NRC that the single test boring demonstrated the use of random, improperly compacted fill in the area and constituted evidence of site-wide problems.

On October 14, 1983, Consumers filed its Response. Intervenor, pursuant to 1

leave of this Licensing Board, files this brief reply.

l 1

On October 11, 1983, applicant's counsel, Mr. Steptoe, informed intervenor's counsel that he intended to respond to Mrs. Stamiris' Second Supplemental Brief.

However, he failed to inform her that the Licensing Board had given Mrs. Stamiris the right to reply to applicant's response.

On or about October 19, 1983, af ter speaking with Judge Bechhoefer, intervanor's counsel learned that the Licensing Board had granted leave for filing of a responsive Pl eading and an oral response to be heard on October 31, 1983, 8311020200 831031 PDR ADOCK 05000329 h

9 PDR

I MRS. STAMIRIS MEETS THE STANDARD FOR REOPENING THE RECORD ON THE DOW ISSUES Mrs. Stamiris hss argued that she need not meet the standard for reopening n

the record to litigate the three Dow issues. However, given the Licensing Board's cuggestion that the Dow issues may be viewed as new contentions, Mrs. Stamiris believes she has met the standard for reopening as established by this Board in its Memorandum and Order denying Mrs. Stamiris' Hotion to Reopen Record on Containment Cracks. Consumers Power Company (Midland Plant, Unit 1 and II),

LBP-83-50, 18 NRC (August 17, 1983), at 10.

First, Mrs. Stamiris moved in a timely fashion to litigate the Dow issues.

Intervenor made an oral motion at the first set of hearings held after the filing of the Dow Complaint on July 14, 1983. Her oral motion was followed by a written motion, filed by leave of this Licensing Board on August 8,1983.

This Licensing Board set all dates for intervenor's original motion and all cubsequent supporting memoranda. Therefore, it has effectively acknowledged the timeliness of her motion.

Second, Mrs. Stamiris has raised in the three Dow issues matters of substance.

Clearly an applicant's honesty and candor in dealing with the NRC and its staff is of utmost important to this Board's determination as to whether or on what conditions applicant may continue the coils work. In fact, an applicant's 1

character and honesty is the cornerstone of the entire regulatory system for commercial nuclear energy in this country. Since the NRC Staff can neither construct nor operate nuclear power plants, it must rely heavily on Consumers' honesty in providing it with full and complete information. The three Dow issues raised by Mrs. Stamiris, if proven, throw grave doubt on Consumers' willingness and ability to do so. They are therefore of critical importance to this Licensing Brord's determination in this soils settlement hearing. This Licensing Board has recognized the importance of Consumers' honesty and integrity in providing for the full litigation of the Boos' allegations and the (alleged) violation of the Board

I l

crder. Certainly, the question of whether Consumers provided truthful and '

• l complete information to the NRC on the soils boring results, U.S. Testing test '

results, and its schedule for completion is of even greater importance.

Therefore, Mrs. Stamiris has satisfied the standard for reopenf ag, as established by this Board in its August 17, 1983 Memorandum and Order.

II THE DOW COMPLAINTS AND DOCUMENTS PRESENT NEW EVIDENCE ABOUT CONSUMERS' KNOWING USE OF INVALID TEST RESULTS Contrary to Consumers' representations in its Response, at 3, U.S. Testing's Response to the Bechtel 1979 Report was.never produced prior to September 1983.

The significance of the U.S. Testing Response to Bechtel's criticisms is that U.S. Testing in its letter explains with precision how Bechtel kn we (not only should have known) of the invalidity of U.S. Testing test results and yet continued to use them. The Bechtel 1979 Report standing alone would lead one to believe that Bechtel did not know about the invalid results until it did an investigation in 1979. U.S. Testing's rebuttal demonstrates Bechtel knew about the results and participated in justifying the failed tests and invalid results.

Moreover, Consumers' argument that the certified Dow complaints cannot be used to justify litigation of the Dow issues is disingenuous, at best. In all corporate litigation in courts where certification of a complaint is required, a corporate officer certifies the complaint. It is not necessary, and in fact will rarely be the case, that this corperate officer have personal knowledge of the facts alleged in the complaint. The corporate officer certifies that the corporation has a good faith basis for alleging the facts 1n the complaint. In complex litigation such as the Dow-Consumers suit, it is likely that the top l

corporate officers do not have any personal knowledge of the facts alleged but l

have reviewed the information gathered by corporate employees and attorneys to satisfy this requirement. Therefore, it would be surprising if Mr. Gaska had any personal knowledge of the facts alleged in the complaint. Further, Dov's ellegations are in large part a litany of misrepresentations and bad acts which l

1

h Consumers actively concealed from Dow. It would be surprising if Mr. Gaska had information other than that which his attorneys and investigators brought to him.

Applicant is quick to assert that Mrs. Stamiris does not understand the 1977 Bechtel Report. However, a cursory review of Consumers' arguments indicates it is Consumers' discussion of this report that is misleading. First, the 1977 Bechtel Report concludes that the backfilled soil below the elevation of the 2

footings was adequate. Table 2, contrary to applicant's representations, shows insufficient bearing capacities for the soft layer of soil at elevations 597.5 and 588.0. Applicant contends in its Response at 6 n.6, that this soil can support "a comparatively light structure such as the Administration Building." The question is whether it can support a comparatively heavier building such as the Auxiliary

! Building. Therefore, Consumers' facile statement that Table 2's results of

" strain and insufficient bearing capacity" do not mean that the soil layer has insufficient bearing capacity is incomprehensible.

l Finally, Consumers contests that its presentation to the NRC Staff, made on July 18, 1979, was inadequate or misleading. The fact remains that Consumers' presentation did not outline the five major faults Bechtel outlined in its 1979 Report on U.S. Testing reports. In addition, a close reading of Consumers' Response, at 7, indicates Consumers does not now claim it provided the NRC Staff with all the information of the final Bechtel 1979 Report at the time it received the Report.

No is there any indication it provided the NRC Staff with U.S. Testing's Response to this Bechtel Report.

! III THE DOW COMPLAINTS READ 'IDGETHER WITH DOCUMENTS INTRODUCED INTO THE RECORD PRESENT A SIGNIFICANT ISSUE OF WHETHER CONSUMERS DISCOVERED FROM THE DIESEL GENERATOR BUILDING SOIL BORING AND OTHER INVESTIGATIONS THAT SOILS PROBLEMS WERE SITE-WIDE i-l Consumers' response in no substantive way counters Mrs. Stamiris' argument that l

l 2 Intervenor did inadvertently misstate that the Report indicated that " backfilled soil above the elevation of the footings is adequate." Second Supplemental Memo-randum at 3. ' As Consumers pointeToi.it', 'the Report concluded that th'e inckfilled

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soil below elevation $18 was adequate.

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t the soil boring taken near the diesel generator building indicates the use of randon, cohesionless fill and potential site-wide problems. Consumers argues merely that the FSAR at Midland was unique in that it was not a design document but a " history" of the manner in which the plant was built. Consumers' Response at 8 and n.7.

Yet this fails to answer the argument.

The following facts are uncontroverted:

1) The DGB soil boring log indicates random fill was used.

2) In 1975, Constaners instructed Bechtel to stop using cohesionless fill and instead use cohesive fill. Bechtel agreed to use cohesive material in the future.

3) The job requirements and specifications for Midland called for the use of cohesive fill.

Therefore the 1977 DGB soil b oring indicated to Consumers that Bechtel had improperly used random fill in the DGB area and that the problems discovered for the Administration Building infected the DGB area as well.

Thus, Consomers' contrary representations to the NRC Staff were misleading and deliberate.

IV CONCLUSION In consideration of the arguments and supporting documentation presented in this reply, Mrs. Stamiris' Motion to Litigate Dow Issues, First Supplemental Memorandum and Second Supplemental Memorandum, Mrs. Stamiris respectfully requests this Licensing Board to grant her motion to litigate all three Dow issues in these OM hearings.

Respectfully submitted, b&

L% BEENABdI ver) ment Accountability Project the Institute of Policy Studies 1 Que Street, N.W.

Washington, D.C. 20009 (202) 234-9382 l DATED: October 31, 1983 Counsel for Intervenor Barbara Stamiris 1- - - _ _ . - - - _ . - - _ - _ _ _ _ _ - - _ - - . _ _ - - _ _ . - - _ - - _ . _ . . . _ _ . . - _ _ _ _ _

t' .

II UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of: ) Docket Nos. 50-329-OL

) 50-330-OL CONSUMERS POWER COMPANY ) 50-329-OM

) 50-330-OM (Midland Plant, Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing INTERVENOR BARBARA STAMARIS' BRIEF REPLY TO APPLICANT'S RESPONSE TO SECOND S_UPPLEMENTAL Mt.MURANGUM IN SUPPORTl F INTERVENOR BARBARA STAMIRIS' MOTION

,TO LITIGATE DOW ISSUES ,

D were mailed, proper postage prepaid, this 31_ day of October, 1983, to:

• ' Charles Bechhoefer, Esq. Frank J. Falley Administrative Jn".gs -

Attorney General State of Michigan Atcznic Safety and Licensing Board Steward H. Fresnan U.S. Nuclear Regulatory Otmnissica Assistant Attorney General Washingtcm, D. C. 20555 Envircmmental Protection Division 525 W. Ottawa Street, 720 Iaw M41M5

• *Dr. Jerry Harbour Iansing, Michigan 48913 Administrative Judge Atcznic Safety and Licensing Board **Ms. Mary Sirw lair U.S. Nuclear kgulatory Otranission 5711 Stzmerset Street

• Aashington, D. C. 20555 Midland, Michigan 48640

• • Dr. Frederick P. Cowen **Ms. Barbara Stamiris Administrative Judge 5795 N. River i

6152 N. Verde Trau , Apt. B-125 Freeland, Michigan .48623 l Boca Raton, Florida 33433

• • Wendell H. Marshall, President

• • Janes E. Brtnner, Dg. Mapletcm Intervmors Constners Power Otmpany RFD 10 212 West Michigan Avenue Midland, Michigan 48640 Jackson, Michigan 49201 Docketing and Service Section -

U.S. Nuclear Regulatory Comnission Washington, D. C. 20555 s

- 2-

)

Myron M. Cherry, P.C. Samuel A. Haubold Peter Flynn, P.C. Kirkland & Ellis Cherry & Flym 200 East Rand olph 0 Drive Three First National Plaza Chicago, Illinois 60601 suite 3700 Chicago, Illinois 60602 Aternic safety and Licensing Board U.S. Nuclear Regulatory Canission Washingtm, D. C. 20555 Atonic Safety and Licensing '

Appeal Panel U.S. Nuclear Regulatory Ccmnissicn -

Washington, D. C. 20555 Steve J. Gadler, P.C. '

2120 Carter Avenue St. Paul, M4 55108 ..

• • Frederick C. Williams, Esq.

Isham, Lincoln & Boale 1120 Connecticut Avenue, N.W.

Washington, D.C. 20036

• • William D. Paton, Esquire Office of Dcecutive Iegal Director U.S. Nuclear Regulatory Ctrxnissicn -

Washington, D. C. 20555 Philip Steptoe Isham, Lincoln and Beale Counselors at Law f '

One First National Plaza l// A Forty-Second Floor ,

Chicago, IL 60603 /

i l .

• Delivered through the NRC internal mails.

• • Hand-delivered at Hearing, l

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