ML20126H520

Answer Opposing Applicants Motion to Defer Consideration of Seismic Issues Until OL Proceeding.Scope of Soil Settlement Issues Include Seismic Issues

ML20126H520
Person / Time
Site:	Midland
Issue date:	04/09/1981
From:	Stamiris B AFFILIATION NOT ASSIGNED
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8104140544
Download: ML20126H520 (11)

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1 U.S. NUCLEAR REGULATORY COMMISSION In the matter of Docket Hos. 50-329 OM,0L j

C.P.Co. Midland Plant 50-330 OM,0L

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BEFORE THE ATOMIC SAFETI: AND.LICEN5ING BOARD Q\\

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3/6/81 INIERVENOR ANSWER

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O!he cf ne tut j k D -... <,<h/ OPPOSING APPLIC Ah7S MOTION TO DEFER CONSIDERATION V

00dC:friaIt';!O OF SElSKIC ISSUES UNTIL THE OPERATING LICENSE PROCEEDING

'.(N Eh 3 4.16 This seismic motion beg' ns with the statement that at the second i

prehearing conference a the NRC Staff reneging on an agreement ereviously worked out with applic ant, proposed that the scope of this soil esttlement hearing be expanded to include seismic issues."

Vnether or not the NRC Staff was reneging on an informal agreement i s irrelevant. The scope of this soil settlement proceeding alretady included l

sei smic i ssues as set forth in my contentions ib,he, and 4d; in the many references to seisuic issues contained in eart II of the December 6,1980 l

l Order (50-5hr questions, acceptance criteri a, and unresolvad safety issues regarding remedi al actions); and in Mr. Linenburger's statement at the last prehearing conference that "this board will absolutely not ignore seisnic in arriving at its decision about the adequacy of procosed remedial actions."

l For these reasons alone, it seans clear that the motion c annot be granted. But an examination of this motion and its supporting arguments l-i s important for many other reasons.

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I. EXAMINATION OF APPLIC ANTS ARGUMENTS AS PRESENTED '

Having made irrelevant arguments about the Staff position, the Applicant a cuses the Staff of a misreading of the Dairyland cases. The c

Applicant points out that Midland is not an operating reactor like Dairyland I

and "thus for Hidland unlike Dairyland,, deferral, of consideration of seismic issues until the 0.L. proceeding 411 not have any adverse effect on the public health and safety."p.4 Applicant draws the conclusion that Midland's seismic deferral does not pose a health and safety threat simply because it is not an operating reactor. In so doing, he concedes that a f acility that operates without seismic updates does represent a threat to public health and safety. What he actually is saying then is that because Midland is not presently an operating reactor, it does not presently represent a threat to public health and safety.

Applic ants second argument is that " definitive safety findings can be deferred in the NRC licensing process until operation is actually licensed. " They can if in so doing public health and safety is not jeopardized.

For according to the Atomic Energy Act "public safety (is)a paramount issue at every stago in processing apolications.for comercial use of nuclear po wer. " ' 1)

Applicant further differentiates Midland from Dairyland saying, "because a design basis earthquake has~been formally established for the Midl and site, a ch an ge i n thi s de si gn b asi s would be a ' b ackfi t' deci sio n which pursuant to 10 CFR 50-109would require that there be a finding that i

I (1) C, P.Co Midland Plant Units 1 & 2, ALAB 315,1975, p.103 i

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r such action will provide ' pubstantial additional protection diich is required for the public health and safety or the common defense and security

• p.5 such a 'd.ektit' finding seems almost a given. For if at Dairy land the adoption _of the most recent and conservative seismic standard was deemed necessary for safety, then the uodate of seismic-standards for Midland would be necessary for the same reasons.

Applicant concludes his arguments by declaring that " uncertainty concerning possible backfits required by a redefined SSE" is a"financi al ri skap.6 and he makes numerous legal citations supporting the statement that "the licensee always builds at its own risk.* These statements,true in themselves,do not mean that it is a financial risk eniv. Here and in James Cookk attached affidavit,the Applicant infers that the seismic uncertainty rpresents a financial risk as ocoosed to a health and safety risk. and does so in the absence of any supporting arguments.

In reality the basis for each of these arguments is the same that neither public health and safety intrasts, nor the NRC regulations intended to safeguard these intrests will be violated by the granting of thi s mo ti on to def er sei smic i s sue s to the 0.L. proceeding. It i s thi s one basic argument that I intend to refute.

II. EX AMINAIION OF APPLIC AhT'S ARGUMEhTS IN T'4EIR FL4.L IMF12C ATIONS There are certain inconsistencies if not contradictions involved in the statements in this motion which must be exanined. By the title of the motion and the statements therein,. Applicant says clearly he is willing to

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I defer prior NRC approval or Agreersent on final seisaic standards to proceed at his own financial risk-(the risk being whether or rsot he will meet NRC seismic standards in the end). But whether he intends to meet NRC standards so deferred is not statodi Aeolicant is willing to give no the

• reduction irr. riska gained from preliminary seissio design'reconsideratiom with the NRC, because dit means r

lengthy delays in this proceeding' and im the. start'up of the Midland units.*

p.6,7. So stated, the Apolicant is willing to risk the ultimate di saeproval e plant sin +up of his actions because he cannot afford the concomitant delay'in waiting to be sure of his actions. It must' follow then,that neither can he afford -

disaporoval in the end, for that 'too would mean delay to plant start up.

By his own account of financial inflexibility, he c~an't afford to f all short of the final seismic standards, yet' he

• strongly urges this -

bo ard to defer until the 0.L proceeding the issue of whether the seistic de si gn b asi s e st abli shed at the c. p. stage for the Midland plant: ( by which he seeks to proceed ) is adequatefp.9. Apolicant has incorporated what he dens "a reasonable" margin over FS AR seismic criteri a, but orly to remedi al wor), excluding the structures affected by such work,(p.7 Thiruvengaden af fi davit)..

Nevertheless:he s believes thatt

• all outstanding sei smic-questions can be successfully resolved.* p. 3,4 U t. If ultimate NRC seismic standards are not incorporated now, i

they never can be,for the Aoplicant' e h'.t afford correction to completed n

structures at the 0.L. stage any more than he can afford delay row.

Then the effect of this motiort beooses one not merely of deferral of seismic considerations,but one of' compromise to NRC seismic standards, particularly if compromise is the only way to rave diat by then will be a completed 2 I

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$3 to $4 billiorr dollar f acility.

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In financial straits as difficult' as these(and portrayed in Jsnes Cook's attsched affidavit). it would'seen that Consumers Power Company j

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would have begun pushing the NRC'to get some agreamsnt on seismic.

standards in 1978 when they first " learned that the NRC Staff *had any-concern about the msgnitude of the ilesign basis earthquake approved at' the

c. p. stage." p. 7 For.C~onsumers has certainly not been reluctant to criticize NRC slowness or-resource allocation decisions in the past* when they 1

did rot meet their own ends..

NRC Despite numerous attempts.to obtain adequate resolution of seisr:ie issues (in FS AR questions 361.2,.4,.7,.9; in 50.$f requests regarding acceptance criteria for soil settlement remediation; and in many meetings involving these issues since 1978),

acceptable seismic input parameters still have not been. established. The October 14, 1980 Tedesco letter went so f ar as to suggest two acceptable seismic approaches to C.P.Co.

Eut now, when progress was-just beginning with the site-soecific aporo ach, Consumers says that this analyd s is too late and too time consuming.

Furthermore, Consumers says although they are pursuing this site-specific approach with the NRC, they "have not conceded that the design basis of the Mid1a d p1 ant approved at the e.p. stage is inappropriste, or l

n th~at the Michigan basirnis not a separate tectonic province." (p.4, Thiruvengades affidavit)

I believe that Applicanth e*guments ' as examined in their full implic ations' t,are very revealing in not' self defeating. Yet more important issues must be explored regarding $.he ' proceed at own risk' requestsin this motion.

• Selby letters of 12/10/80,1/16/81 toNRC ; 6/13/80 & 8/25/80 meetings c,P. -NRC g

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p III. PROCEED AT OWN FINA)CI AL RISK BE00MES A FUBLIC HEALTH & SAPITY RISK Iwill now return to my original intention to refute the Applicant's basic argument that he should be allowed to defer seis: sic consider' tions' a

bec ause this represents a financial risk to the Applicant as opposed to e

a health and safety risk to the public. Applicant by this motion seeks to proceed at his owm financial risk in seismic matters just as he did in soil settlement matters in 1978. I do not deny Applicanth claims that allowing the licensee to build at its own financial risk is the established MRC' policy, but I will hereby show how this accepted practice is at vari ance with the ultimate and overriding responsibility of the NRC' as mandated by the Atomic Energy Act d that'cublic safety is the: first, last, and a pemanent consideration in any decision on the issuance of a construction permit or a license to operate a nuclear f acility." (2)

Both construction permit and operators license decisions are involved i n thi s moti o n.. The o ri gi n al' c. p. d eci sion i s que stio ned bec au se o f si r;nific ant design changes which led to the Order Modifying Construction Permits (according to to CFR 50-100), and 0.L. decisions are involved because thi s is a consolidated proceeding.

NRC practice allows ' proceed at own ri sk' arrangements, yet NRC' recul ationl mandate preventierr of health and safety risks,.I submit that' this paradoxical situatierr amounts to wh at is almost an impossible charge to the NRC. Financial considerations effect safety,just as safety considerations effect finances. The two cannot for all practical purposes be separated.

But if such separation is attempted as in the case of ' proceed at own risk'

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(2) AL AS 315, p.

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agreements, the ultimate risk of di sapproval undertaken by the applic ant at one point, cannot'later be denied,g no matter what the consequences.

For ultimate compromise negates the element of risk' involved', and regulation gives way to license.

i Yet weighing of practical financial considerations against safety considerations becomes almost unavoidable ar a result of these 'own risk' policies. The oostly and difficult consequeness of such policies can be illustrated by the esse in point of the Diesel Generator Building- (DGB) at Midland. I will briefly review the history of this one aspect of the soil settlement matters to show how public health and safety is at' stake in any 'at own risk' arrangement like the one sought in this motion.

The settlement of the DGB was first noted when the building was in its initial stages irr 1978. Since therrits construction has proceeded

' at C. P. Cos. owrr. risk' coacurrent with its remedi ation. The adoption of the Preload Option and the resumption of work on the DGB took place within only a few months of its initial settlernent discovery, before root c auses had been thoroughly analyzed, and before the full implications I

of soil settlement probieres and their effects were understood by either C.P.Co.

l or the NRC' ( the potenti al for liquef action for example )..

When asked by the NRC'in 1979 to defend their choice of the Preload Option over the Removal and Replacement option for fill (10CFR 50-54f 9 21)

Consumers replied, (part d(5) )*Preloading was the least costly feasible alternative for corrective actierr. Also, constructioni of the structure enn continue while the surcharge load'is being applied. Thus, this alternative I

will minimize the impactr oni the constructiontschedule."

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By taking the actions that they did,. when, they did, C.P.Co. chose notl to thoroughly consider the most conservative Removal and Repla ement c

Option. But now as a resulttof their choiceto proceed, full and fdr considerationt of the removal and replacement offill'brtheNEt.,har been progressively

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negated. Few individuals withirr the EC, or C'.P.Co. I dare to 'say, would frankly deny that statement.In f act WRC personnel have themselves expressed concurrr over the realities of. these policies at )tidland. (see attached Chilk memo on possible ex-parte contact)

Yet the f act' remains that the DEF now stands virtually complete, despite serious questions regarding-its subsoils and its settlement effects.

Removal and replacement of its f aulty fill is+no longer a vi able option for-C. P.Co. in light of financi si statseents rade in this motiont (Irortically, the Removal and Replacement Option was rejected in 1978 on the basis of cost,despite the f act that it afforded the most conserv tive solution, a

and nsw it appears th'at'rswoval and replacement' in 1978 mi ght h a e been v

the mo st vi able financi al option preci sely because it w s the most conservative."

a Tull and f air ev luation of safety questions by the NRC at the end a

of 'own risk prneeedings becomes extremely difficult if not impossible vhen structures or actions are completed. Yet that is precisely what the j

l Applic ant seeks once again irr this seismic motion. to proceed.

As a result of ' at own risk ' policies, NRC safety decisions are elev ted to 'make-us-or-break-us' financial decisions and held up as such a

to the NRC and now to this very Atomic Safety and Licensing Board, as in James Cook's attached affida it to this motion.

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The' Applicant almost cha11anges the NRC' and the ASLB on their literal interpretation of ' at own risk' agreements. C'an the NRC carry through on' its implicit power to demand removal, and replacement of subsoils, or sei smic update, orany other safety decision.if it' esrries with it the i

certain doom of the whole plant? The tremendous burden = of such weighty and unsa ory decisions makes them almost impossible, and in looking for v

ways to help a utility out of such predicaments, publie health and safety is compromised.

It must be renembered that C.P.Co. not only could have beerr more careful and less hurried 'about proceeding irr. soil settlement matters, they should have been more careful and less hurried in soil settlement matters, for "a construction permit carries with it no concomitant right to oper'ste the completed f acility. Rather, to obtain an operating license, the ( Atomic Energy) Act requires the utility to shoulder once agairr the burden of proving tb the Commission (at a public hearing if need be) that it has, inter alia, constructed the plant in conformity with its aoolic ation, the Act, and the Commissions rules and regulations. Arri even at thi s late stage. the A::t permits the Commission to withhold the license for good cause, It was not happenstance that Cbngress structured Atorzie Enerr5 Act l

proceedures in this manner. Rather, it was intentionally done to make certain that public safety was a paramount issue e at every stage in I

processing applic ations for commercial use of nuclear power." (3) l l

(3) AL AB 315, p.103 l

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i Therefore, when I' ask this Bo ard, by denying this mot' on, to i

begin to change what has become accepted NRC practice of allowing-

' proceed at own risk' policies, I apr not' seeking to change the rules of the gee as it may at first appear. What I do seek is the change of what has become accepted practice, in order that the rules of t.he gae are upheld.

Proceed at owm risk policies force all parties involved into an unrealistic world of extremos. The NRC, committed' *to conduct independent analysis and reach' independent conclusions err whether reasonable assurance of plant safety exist (s)*' (4) must nrake such independent safety decisions totally aside from financial realities that may spell certain doom to the Applic ant. The Applicant is forced to challange that ultimate authority if in the end it is his only hope of sa ing his plant. So in response, I v

too must challange the NRC and this Board on their ultimate authority.

Since the Applic ant has said in effect 'you c an' t make your decisions apart from these financial realities', I am forced to say,

'you must make your decisions apart fronr these financial realities.'

All safety questions in this soil settlement,Proweding including seismic ones, 1

must be based on purely scientifie and technical grounds, rather than I

based even in part on practic al financial considerations.

I I ask you to presume,for instance,that the DG were still in its ini ti al st age s, as when its settlement was first discovered in 1978.

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l (4) NRC ST AFF'S ANSWER TO INTERROGATORIES FILED BY C.P.Co.

50-329 OM-OL, 50-330 OM-OL; In the matter of Midland Plant, Units 1 & 2; Interrogatory Answer 1, p. 2,3 referring to S.R.P. seetions 2.5.4 and 2. 5 5 ; Feb.25,198i l

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Knowing what is known now, and for the greatest part could have been known.

prior to its remediation,would the safety related decisions for the DG be any easier?.Even more importantly would the decisions th mselves be any different under these cin:uarstances? These rhetorical questions a o relevant to the present motion; For this is a motion that compells the siessio udates either ap.w, of never, just as the removal and replacement of f a lty fill was a now or never decistort in 1978 u

The salient question must finally be asked, Who is really taking the risk in a ' proceed at your owrt risk' arrangenent? The answer is the public ' first, last', and always'. For whether soeaking of financial costs or safety costs, it is not the Applieant who bears the ultimate risk, It is we the public who will pay the price for the Midland nuclear plant.

This motion c annot be granted without seriously endangering the health and safety of a public totally dependent not only on the basic tenants of the NRC regulations, but also on the actual practices and policies as c arried out by the NRC'.

For this reason, a thorough and complete ana;7 sis of ultimate seisrde standards must occur now, as an integral part of remedial soil settlement fixes and the structures affected by them. If such analysis entails delay to this soil settlenent proceeding, then that is unfortunate, but not nearly so unfortunate as the implications of net _ doing such an analysis.

For nuclear safety transgressions cose.st least as cerious a threat to d

public health and safety

• as the Federal Safety Acts in which aCongress (has) deemed the safety considerations at stake more important than any financial detriment to the party involved." (5)

Respectfully Submitted, (5) ALAF 315, p.109 r7' e

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• m" December 29, 1980 OFFICE oF THE CoMMISSloNE R N

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Docuting &

eeryg MEMO TO:

Samuel J. Chilk Secretary

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FROM:

Thomas R. Gib ch

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to Commissioner Bradford Uf) p

SUBJECT:

POSSIBLE EX PARTE CONTACT IN MIDLAND PROCEEDING, DOCKET -

's Y 50-3290M AND # 50-3300M On July 30. 1980, I had extensive discussions with James G. Keppler, Director of Region III, and other Region III personnel on general NRC enforcement issues.

During the course of these general discussions, we touched briefly upon the Midland case.

I have recently reviewed my notes of these conversations and have now realized that the Midland conversation could be considered an ex parte contact.

Accordingly, I request that pursuant to 10 CFR 2.780, you serve a copy of this memo and the attached summary of discussion upon all the parties in the Midland proceeding and also place these documents in the PDR.

With regard to the summary of the discussion, Mr. Keppler notes that while there arc some technical inaccuracies, the substance of the discussion is portrayed correctly.

i At tachment:

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James G. Keppler i

Keppler also stated that the Commissioners needed to express in one f orm or another the philosophy that once something is found wrong at the construction site, construction will stop in that area until the item was resolved.

He gave the example of Midland where I&E found.that the diesel generator building had settled l

excessively.

They also found that there was no Q/A program of any substance related to the basic foundation of the site.

He said there really wasn't a Q/A program in this area.

In response L

l to this, the NRC issued an order which said that this should L

be remedied or work would be stopped in'30, days.

The company l

requested a hearing and, theref ore, stayed the order.

Midland is continuing work today which will make resoluti.on of the l

settlement problem much more difficult.

Keppfer said that the

'staf f had not yet made up their minds on whether the fix proposed by Midland is acceptable.

Therefore, the project continues to be built and the problem gets worse.

He wanted the. work stopped

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until the problem is solved.

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