ML20101F319

Request for Evidentiary Hearings on Matter Raised in CPC-Dow Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl

ML20101F319
Person / Time
Site:	Midland
Issue date:	12/24/1984
From:	Bernabei L GOVERNMENT ACCOUNTABILITY PROJECT, STAMIRIS, B.
To:	Atomic Safety and Licensing Board Panel
References
CON-#484-792 78-389-03-OL, 78-389-3-OL, 80-492-02-SP, 80-492-2-SP, OL, OM, SP, NUDOCS 8412270108
Download: ML20101F319 (8)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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.A}L. g ATOMIC SAFETY AND. LICENSING BOARD -

Offlgg All:

05 In the Matter of ) ASLBP Nos. hh[8iG Q 03.OL

) ' 80 -)32 M2jSP CONSUMERS POWER COMPANY- )

.. Docket.Nos. 50 3 'OL (Midland' Plant, Units'1 and 2) )

0-330 OL

) Docket Nos. 50-329 OM 50-_3_30 OM INTERVENOR STAM. IRIS ' REQUEST FOR EVIDENTIARY HEARINGS ON MATTER RAISED IN THE CPCo-DOW TRIAL, AND REFERRAL OF CERTAIN MATTERS TO THE OFFICE OF INVESTIGATIONS On December 6,1984, Consumers Power Company (" Applicant")

notified the Atomic Safety and Licensing Board . (" Board") that the_certain erroneous information concerning borings at the D.F.O Tanks had been submitted previously in the OM/OL pro-ceeding. The new, allegedly correct information had been dis-closed (or discovered) during.the course of.the trial between Dow Chemical Company - ("Dow") and the Applicant during the litigation of the "Dow issues." This information has'immediate

-bearing on the basis-of the Board's information regarding'the liquification problems on the Midland nuclear power plant site.

, Intervenor Stamiris requests that prior to the issuance of any decision, or partial decision which depends wholly or in part on the information provided to the Nuclear Regulatory

• Commission ("NRC") or the Board by the Applicant, contractors, or expert witnesses, that a full evidentiary hearing be held on the facts surrounding the disclosure of the soils boring 0

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_ data'and all related tests by' Applicant to the.NRC. (This request doesinot apply to any issue about which the Board has -

reached decisions independent of'any reliance on the Applicant's

--  : data.)

This request results from the' current unusual-posture of-this OM proceeding and Intervenor's concerns.that without such.

a hearing, the record developed over the past.three years will be. devoid-of the most crucial information yet developed-on the key issues of management character, quality assurance, and the adequacy of the remedial soils efforts.

Applicant.has' maintained both publicly and through regulatory correspondence that there is a presumption that the Midland plant will someday be " brought out of mothballs" and put into service. Such an effort will be largely governed by anyfconclusions or decisions made by this Board on these issues.

For this reason, Intervenor Stamiris has diligently sought to reopen the record on the Dow issues and pursue information relevant to the Stamiris contentions.'(See Intervenor's Motion to Litigate Issues Raised by Dow Suit and to Open Discovery on'the Dow issues, Mgukh6U , and Second Supplemental Memorandum in Support of Intervenor Barbara

.Stamiris' Motion to Litigate Dow Issues, October 5, 1983.)

As anticipated, the Dow litigation has produced-(and can lut expected to continue to produce) information relevant to Intervenor's contentions.

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.One such. example:is the testimony of Donald Horn con- .i cerning a November-7, 1978 meeting about-the soils: settlement 7 problems. According to Horn's testimony,.3the: Applicant and=

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-Bechtel International Corporation ("Bechtel") decided in November, 1978 that-only partlof the information they had about t

the MidJand soils problems would be disclosed'to the NRC. (See

.  : Exhibit ;l) : This supports Stamiris'1 contention and affects

=Stamisis'Lconten' tion 4.

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'Another example of relevant new information~from the Dow-

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' trial is-testimony of Horn which indicates that Applicant had a.

greater. awareness of the extent of the soils settlement problems-in 1977 following the Administration Building grade beam

. settlement, than was revealed'in the OM/OL proceeding. This~

supports Stamiris' contention 1 and 3 and affects Stamiris' co'ntention 4.-  ;

'According to Horn's' November 9, 1984 testimony in theTDow-

• trial, certain Administration Building proctor tests were ; .

~re-run by U.S. Testing in order to determine' the correct:

-percent compaction. The results of these second tests shown in figure 8, 9, and 10 of an Administration Building report.were cited by the Dow attorney:

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,~ Q:- And every onetof-the original calculation compaction figures are higher than the retested results; isn't'that right?"

.A Mr. Horn answered, " based on this, yes."

P Nov. 9, 1984, transcript Dow/CPc trial,

, p. 2472 citing P. 90517284 of Dow's Exhibit PXCPC 1197.

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_TheLtwo. examples cited above are only,illustrativeJof the types of information which bear on the issues now before the Board.b!

Intervenor believes a thorough review:of the information being developed in.the Dow litigation must be accomplished by this Board contemporaneously with any. decision it issues'.

In order to accomplish this in the most expeditious way possible, Intervenor suggests the following:

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1.- Refer to the Office of Investigations (OI) the

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questions raised by Mr. Horn's testimony (and other matters) which infer that Applicant or its contractors acted improperly.

in'its decision not-to tell the NRC certain information about

-the extent of the soils deficiencies, and regarding the submittal of erroneous information to this Board during the proceedings.

2. Provide Intervenor the opportuniky to supplement this Motion'by a memorandum detailing significant information in the trdnscript of the Dow-CPCo trial within a reasonable time after completion of the trial.

-- 1/ The trial transcript will be publicly available at the comple-tion of the trial, however, due to the complexity of the litigation and the need for the District Court to have daily.

access to its copy, it has been impossible for Intervenor

, Stamiris to have access to the transcript for a thorough review. Therefore, the information available to Intervenor comes

from the press accounts and sporadic personal observation of the trial. (The Board could, of course, request a copy of the transcript be made available to the parties or placed in the Public Documents Room, which would facilitate the review

. process.)

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3. Defer ruling -on this Motion until after the issuance of the10I investigation and receipt of the supplemental memorandum from Intervenors in support of this Motion, and any responses by the parties.

'Intervenor Stamiris is mindful of the resources which an evidentiary hearing would consume.- If Applicant would withdraw its request for either the operating license or the hearing on the Order for Modification there would, of course, be no need for such a hearing. However, numerous forseeable circumstances could develop in which the Applican4 or some other appli' cant, would seek to bring the Midland nuclear. power plant into operation.

Intervenor is mindful that she cannot now sit idly by as the truth so' diligently-sought'by this' Board and these parties is finally revealed in the context of a civil litigation. For these reasons, the proposals contained in this request seem reasonable, fair and prudent.

Respectfully submitted, Dated: December 24, 1984 W n h - ne~

Lynne Bernabei Government Accountability Project 1555' Connecticut Avenue, N.W.

Suite 202 Washington, D.C. 20036 Telephone: 202/232-8550 i:

EXHIBIT 1 Saginaw Daily News, November 14, 1984 ptilityF

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- 1Theconcretebasecracked.' '

'Sechtal built the tanks without sufficienttestproof that the 3 . wo OUT fau "-"uld"" , support -them, ground Before e ,Auot Ho~rn 8YKEITH NAUGHTON ,

197T,it misrepresented that the soll sic News Staff Writer DU 6 was re4ested and met guidelines ake safety-related structures,

' WIDLAND - Consumers Power Horn'sdaHylogsindicated.

l Co. today once agaln pointed a -

! Bager of blame'for Midland Nucle-. . Horn testified under cross-ex-ar Plant construction problems at Sharon Woods. ' amination by Cr mmers attorney its main contractoron the project.

During the trial of the $500 mil- The utility's attorneys watched lionlawsuit between the utility and $sr' tw6 weeks as Dow lawyers '

gruled Horn about the numerous '

Dow Chemical Co. over the plant, Donald E. Horn, the. utility's for- problems with the Midland plant's Annadations. .

mer chief of quality assurance for i "We wanted to clear'up the re-the foundation of the now-defunct cord of what Horn reviewed,"

plars testified that BechtelPower Corp. was responsible for estab- Woods said. "He based his decision Hahing and implementing design en documents andinformationpro-videdbyBechte!."

specificationsfortheproject.

~ Afterearliertestimony,Consum-Healso said thatBechtelbotched ers spokesman Paul Knopick the job, causing structures at the blamed Bechtel for the plant's con-site tosink.

It was Bechtel's responsthility to ajewsuit.rproblems and threatened .

struction eversee soil compaction for the .

plant's foundation, Horn said. In /."We have never ruled cid a law-suitagainst Bechtel,"he said.

some cases, Bechtel improperly Before . Dow attorney James i compacted the g;ound itself, he asid. Geold completed his seven-day ex-aminationof Horn Tuesday,he had In the late 1970s, safety-related buildings sank into soft fillsoil, and the sous expert verify authenticity  !

Consumers had to embark on a .ef documents that indicate Con i

$300million sumers and Bechtelused question-foundations. project to rebuild plant able methods. of reporting to

' federalregulators; .

Tuesday, Horn told Judge David The utility and Bechtel decided Scott DeWitt, hearing the case in in advance of a 1978 meeting with Midland County Circuit Court, he .the Nuclear Regulatory Commis-tructed Bechtel when he CXed - sion that onlypartof thesoilsprob-building of diesel-fuel tanks on ground not stable enough to sup-

• lems would be disclosed to the port them. ' regulatory agency. Hern's log of

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f UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the At'omic 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 Stamirls'

__ Request for Evidentiary Hearings on Matter Raised _In the CPCo-Dow Trial, and~ Referral of Certain Matters to OI were r

mailed, proper postage prepaid, this.24 day of Jecember ,.1983, to:

• Charles Bechhoefer, Esq. Frank J. Felley Aiministrative Judge -

Attorney General State of Michigan

, Atonic Safety and Licensing Board Steward H. Freeman U.S. Nuclear Regulatory Camission Assistant Attorney General L

Washington, D. C. 20555 Enviraunental Protection Division 525 W. Ottawa Street, 720 Iaw Building

• Dr. Jerry Harbour Lansing, Michigan 48913 ,

Administrative Judge Atcmic Safety and Licensing Board Ms. Mary Sinclair U.S. Nuclear 16gulatory Comnission 5711 Stmnerset Street

. Ashington, D. C. 20555 Midland, Michigan 48540 Dr. Frederick P. Cowan Ms. Barbara Stamiris Administrative Judge 5795 N. River 6152 N. Verde Trail, Apt. B-125 Freeland, Michigan 48623

" Boca Raton, Florida 33433 Wendell H. Marshall, President James E. Brunner, Esq. Mapletcr1 Intervenors Consumers Power Cortpany RFD 10

-212 West Michigan Avenue Midland, Michigan 48640 Jackson, Michigan 49201

' Docketing and Service Section

, U.S. Nuclear Regulatory Camission l Washington, D. C. 20555 i

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Myron M. Cherry, P.C. ** Mike Miller,Esq.

Peter Flynn, P.C. Isham, Lincoln and Beale Cherry & Flynn 3 First National Plaza Thrm First National Plaza Chicago, Illinois Suite 3700 60602 Chicago, Illinois 60602 Atcmic Safety and Licensing Board U.S. Nuclear Regulatory Occmission Washington, D. C. 20555 Atcznic Safety and Licensing 7ppeal Panel U.S. Nuclear Regulatory Ccmnissicn Washington, D. C. 20555 Steve J. Gadler, P.C.

2120 Carter Avenue St. Paul, MI 55108 .

Frederick C. Williams, Esq.

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

Washington, D.C. 20036 William D. Paton, Esquire Office of Executive Imgal Director U.S. Nuclear Regulatory Ocmissicn Washington, D. C. 20555 W kca .a r LYMNE BERNABEI, Esq. F

) Government Accountability Project 1555 Connecticut Ave., NW

• Washington, D .C . ~ 2~0 036 ~ ~ - '-

Telephone:202-232-8550

• IIuad Oclivered l ** Mailed by Express Mail

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