ML19257C950
| ML19257C950 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 01/18/1980 |
| From: | Eichhorn W, Shea K EICHHORN, EICHHORN & LINK, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, NORTHERN INDIANA PUBLIC SERVICE CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19257C942 | List: |
| References | |
| NUDOCS 8001310124 | |
| Download: ML19257C950 (15) | |
Text
.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COICIISSION In the Matter of
)
Docket No. 50-367
)
NORTHERN INDIA'IA PUBLIC SERVICE )
(Construction Permit COMPANY
)
Extension)
)
(Bailly Generating Station,
)
January 18, 1980 Nuclear 1)
)
LICENSEE'S ANSWER TO PETITIONS FOR WAIVER OF OR EXCEPTION TO 10 C.F.R. S 50.55(b)
Porter County Chapter Petitioners filed a " Petition for Waiver of or Exception to 10 C.F.R. 550.55(b)."
They have been joined by the Gary Petitioners (Petition for Leave to Intervene and Request for Hearing, pp. 6-7 (December 31, 1979)) and the Federation (Petition for Leave to Intervene and Adoption of Other Petitions, p.
1 (December 28, 1979)).
An identical Eatition was also filed by the State of Illinois.
This Response will refer simply to the " Petition" and " Peti-tioners."
Petitioners request " waiver of or exception to 10 C.F.R.
S50.55(b)" in this proceeding regardir.g issuance of an exten-sion to the construction permit for Bailly Generating Station.
That regulation states in its entirety:
(b) If the proposed construction or modi-fication of the facility is not completed by the latest completion date, the permit shall expire and all rights thereunder shall be for-lbk 4
feited:
Provided, however, That upon good cause shown the Commission will extend the completion date for a reasonable period of e
0 1#
800131
. time.
The Commission will recognize, among other things, developmental problems attributable to the experimental nature of the facility or fire, flood, explosion, strike, sabotage, domestic violence, enemy action, an act of the elements, and other acts beyond the control of the permit holder, as a basis for extending the completion date.
The Petition is filed pursuant to 10 C.F.R.
S 2.758 which prohibits attack on NRC regulations in individual licensing proceedings except through use of the procedures set out in 2.758(b) and (c).
Under those procedures, a " party" to an adjudicatory proceeding may request waiver of or exception to a specified NRC regulation for that particular proceeding. /
The only ground for requesting a waiver is that special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule or regulation (or provision thereof) would not serve the pur-poses for which the rule or regulation was adopted.
The petition shall be accompanied by an affida-vit that identifies the specific aspect or aspects of the subject mate r ci the proceeding as to which application of the rule or regulation (or provi-sion thereof) would not serve the purposes for which the rule or regulation was adopted, and shall set forth with particularity the special circumstances alleged to justify the waiver or excepti on reques tu l.
(10 C.F.R.
S 2. 75 8 (b). )
-*/
Since none of the Petitioners have been admitted as a party, the Petition is, of course, premature.
In any event, there is no need for the Board to rule on the Petition unless and until one or more of the Petitioners is admitted as a party.
1844 035 On the basis of the petition, affidavit, and any response thereto, the presiding officer is required to determine whether the petitioning party has made a " prima facic showing that the application of the regulation to a particular as-pect or aspects of the subject matter of the proceeding would not serve the purposes for which the regulation was adopted.
(10 C.F.R.
S 2.758 (c).)
If the presiding officer concludes that the prima facie onowing has not been made, the matter is considered no further.
If he determines that a prima facie showing has been made, he certifies the matter to the Commission / for a decision as to whether the regulation should in fact be waived or an exception made.
(10 C.F.R.
S 2.758(c) and (d).)
These provisions establiah three criteria which the Petitioners must satisfy to obtain a waiver of Section 59.55(b):
1)
Petitioners must state with particularity what "special circumstances" exist.
2)
Pctitioners must establish that application of Section 50.55(b) in the context of these special circumstances would not serve the purposes for which it was adopted.
3)
Petitioners must make a prima facie case for the waiver of Section 50.55(b).
Since the Petitioners have not satisfied these requircments of 10 C.F.R.
S 2.758, the Petition should be denied.
~*/
Certification to the Commission is an explicit excep-tion to the usual rule.
i844 036 Special Circumstances The Petitioners have failed to set forth "with particu-larity" the special circumstances which allegedly justify a waiver of Section 50.55 (b) in this case.
The Petition does not attempt to identify any special circumstances, but merely incorporates "the Petition to Intervene." /
Only paragraph 5 of that document appears to be relevant.
It identifies three possible special circumstances.
These are that construc-tion of Bailly is approximately one percent complete, that the extension sought by the Licensee is for a longer period than that contained in the original construction permit, and that "significant developments" have occurred since the issuance of the construction permit.
The Petitioners have not of fered any explanation of why these f actors constitute special circumstances, and therefore they have not satisfied their burden under Section 2.758.
With regard to the fact that the facility is far from complete, we note that, in substantial part, some of these Petitioners are responsible for that fact.
Within six days after the date of the Licensing Board's Decision which authorized issuance of the Bailly construction permit, sone of the present Petitionerc (in their former role as " Joint
~*/
The " Petition to Intervene" may be taken as that of either the Illinois or Porter County Char;ter Petitioners; they are essentially identical.
1844 037 Intervenors") were seeking "a stay of the construction permit."
They repeatedly requested stays of
.str : tion from the Appeal Board. /
When their appeals within the Commission were ex-hausted, they (joi"ed by Gary Illinois) requested and obtained from the U.S. Court of Appeals for the Seventh Cir-cuit a stay of construction at the site pending their appeals of the Commission's decision--appeals which were ultimately determined to be entirely without merit.- /
Having pressed for and obtained s tays which in ef fect prevented construc-tion at the Bailly site for approximately two years, Peti-tions would be hard pressed to allege that the failure to complete construction is a "special circumstance" requiring NIPSCO to show, in effect, that there is good cause for issuance of a construction permit.
The length of the extension sought potentially would be at issue in any proceeding--in that, if challenged, the licensee must demonstrate. that the period requested is
" reasonable."
We fail to understand how that length is
- /
Joint Intervenors' Verified Petition for a Stay of Construction Permit (4/11/74), Verified Motion to Extend Temporary Stay Pending Application to the Court of Appeals (4/30/74), Verified Motion for Stay of Con-struction (5/21/74), Motion to Continue Stay Provided By ALAB Orders 200 and 201 (8/16/74), and Emergency Motion for Stay (8/30/74).
- /
Porter County Chapter v.
AEC, 515 F.2d 513 (7th Cir.
1975), rev'd, 423 U.S.
12 (1975), petition for review denied on rorand, 533 F.2d 1011 (7th Cir. 1976), cert, denied, 429 U.S.
945 (1976).
1844 038 a "special circumstance" to which application of Section 50.55(b) would not serve the purposes for which it was adopted.
The " developments" since May 1, 1974 (when the construc-tion permit was issued), which Petitioners cite as "special circumstances" are various; some are said to have been iden-tified in " Prior Requests" filed by the Petitioners, some are identified in the Petition to Intervene, and "still others may be identified during discovery and prior to the connencement of hearings (Petition to Intervcne,
- p. 5.)
The fact that safety and other developmen~s have arisen c
since the issuance of the construction permit certainly is
.not unusual.
Given the long period needed to construct a nuclear plant, similar developments have occurred during the construction of most, if not all, plants.
Thus, recent developments can hardly be classified as " unique and special circumstances" as the Petitioners have attempted to do.
In our view, none of the " developments" is relevant to the question whether " good cause" has been shown for exten-sion of the Bailly construction permit.
We note that some of them were previously litigated in the Bailly construc-tion permit proceeding.
For example, anticipated transients without scram (referred to in Joint Supplement to Requests litigated and the Licensing Board for Hearing, pp. 7-8) was concluded that:
1844 039 adequate provisions will be incorporated in the design of the Bailly nuclear facility to assure adequate protection against the effects of common mode failures and anticipated transi-ents without scram.
(Northern Indiana Public Service Com7ans; (Bailly Generating Station, Nuclear-1), 7 AEC 557, 578 (1974), aff'd, ALAB-224, 8 AEC 244 (1974).)
Need for power and potential impacts of the nuclear facility upon the Indiana Dunes National Lake-shore (referred to in Joint Supplement to Requests for Hearing, p.
- 10) were fully litigated before the Licensing Board.
(7 AEC 557, 587-61?, 615-20 (1974), aff'd, ALAB-224, 8 AEC 244, 258-64, 270-71 (1974).)
The decisions reached by the agency were ulti.mately affirmed on appeal.
(Porter County Chapter v.
AEC, 515 F.2d 513 (7th Cir. 1975),
rev'd, Northern Indiana Publ.ic Service Co. v.
Porter County Chapter, 423 U.S.
12 (1975); petition for review denied on romand, Porter County Chapter v.
AEC, 533 F.2d 1011 (7th Cir. 1976), cert denied, 429 U.S. 945 (1976).)
Other " developments" now cited by Petitioners were pre-viously alleged by some of the same Petitioners to require the Commission to institute a show cause proceeding and/or suspend construction of the Bailly facility.
For example,
" Mark II containment design quections" (referred to in Joint Supplement to Requests for Hearing, p.
- 5) fall into this category.
They were raised by Petitioners in a " Request to Institute a Proceeding and Motion, to Suspend and Revoke 1844 040 Construction Permit No. CPPR-104" filed NovenJ.. 24, 1976 (see pp. 30-31).
The NRC Staff concluded that the action requested was not warranted.
(Response to Request for Order, April 15, 1977.)
That determination was affirmed by the Commission (CLI-78-7, 7 NRC 429 (1973)) and sustained on appeal.
(Porter County Chapter v. URC, 606 F.2d 1363 (D.C.
Cir. 1979).)
Another " development" on which Petitioners have pre-viously sought a hearing is the proposed use of shorter piles in the foundation for Bailly (referred to in Joint Supplement, pp. 5-6).
They requested a hearing, with a stay of construction pending that hearing and judicial review.
(Petition with Respect to Short Pilings Proposal, filed by the State of Illinois, Porter County Chapter, Concerned Citizens Against Bailly Nuclear Site, Business and Professional People for the rublic Interest, James E.
Newman, Mildred Warner, George Hanks, City of Gary and Lake Michigan Federation on November 1, 1978.)
The Commission recently denied that request, holding that the Petitioners were not entitled to a hearing on the piles question as a matter of right and that there was no reason to order a hearing as a matter of discretion:
[U]e believe that the operating license review is the appropriate forum for a hearing on the licensee's piling proposal.
1844 041 As we view the record before us, especially the views of the ACRS, we find nothing to suggest that there would be any benefit in injecting an interim public hearing at this time.
(Memorandum ar.d Order of the Commission, slip op. at 16 (December 12, 1979).)
The Petitioners are attempting to use Section 2.758 to relitigate issues which have already been considered by the Commission and the courts.
These issues are not relevant to whether NIPSCO has shown good cause for an extension, and they hardly constitute "special circum-stances" which justify a waiver of Section 50.53 (b).
Sec-tion 2.758 was not intended as a means of reopening issues which have been reviewed in previous proceedings.
A number of the " developments" cited by the Petitioners are related to the accident at TMI-2--e.g.,
the report of the Kemeny Commission, the licensing " pause" announced by the NRC, Final Report of the Lessons Learned Task Force (NUREG-0585).
(Petition for Leave to Intervene,
- p. 7.)
Petitioners are certainly correct in observing that these
" developments" have occurred since the Bailly construction permit was issued.
However, they do not even suggest how these developments justify waiver of 10 C.F.R. S 50.55(b) in connection with the Bailly construction permit extension.
We submit that these " developments" do not justify waiver of Section 50.55(b).
Reviews and analyses of the 1844 042 TMI-2 accident have produced many reports, recommendations, and new initiatives, with more to follow in all probability.
Some new requirements have already been imposed upon opera-ting reactors as a result of the TM' Lessons Learned.
The NRC Staff has prepared a draft Action Plan for implementing other recommendations, with suggested schedules for the implementation.
The Plan is now being reviewed by the ACRS and the Commission.
An orderly, systematic, generic approach has been adopted for evaluation of the TMI acci-dent, deselopment of new policies, and implementation of new requirements flowing therefrom.
Section 2.758 was not intended as a means by which a licensing board could preempt or anticipate the Commission's consideration of generic issues.
Purposes of S 50.55(b)
The Petitioners must establish that the application of Section 59.55(b) in the context of the circumstances men-tioned above would not serve the purposes for which it was enacted.
However, the Petitioners' request for waiver of Section 50.55(b) is almost totally devoid of any dis-cussion of the purposes of Section 50.55 (b) and offers no e::planation of why these purposes would not be served by application of the Section in this case.
Petitioners do not explicitly state what effect they desire to achieve through the requested waiver of or excep-1844 043 tion to 10 C.F.R. S 50.55(b).
However, they state that the Petition will be moot and may be deemed withdrawn if their
" position with respect to ' good cause' is sustained in the proceeding."
(Petition, paragraph 3. )
They also charac-terize that position as requiring "that a broad range of issues be considered in the proceeding in order to make a for determination of whether NIPSCO has shown good cause the construction of the Bailly plant."
(pd., paragraph 2, emphasis added. )
Thus, apparently Petitioners want 10 C.F.R.
S 50.55(b) waived or excepted to in order that NIPSCO vill be required to prove in this proceeding that there is good for the construction of the Bailly plant.
cause As support for cheir conclusion that Section 50.55(b) was intended to require a licensee to show good cause for construction of a plant, the Petitioners state only the obvious:
that Section 50.55(b) was adopted to implement Section 185 of the Atomic Energy Act.
The Petition does not specifically address the purpose of that statute.
As discussed above, one can surmise that, in Petitioners' view, the purpose of Section 185 is to require the applicant for a construction permit extension to demonstrate again that the plant should be constructed.
But, the unsupported assertion can scarcely be said to make a prima facie showing.
Petitioners' views as to the purposes of Section 185 are not only unsupported, but are contrary to the two-step 1844 044 licensing process established by the Atomic Energy Act.
As the Appeal Board concluded in Indiana and Ilichigan Electric Company (Donald C.
Cook Nuclear Plant, Units 1 and 2), ALAB-129, 6 AEC 414, 420 (1973), under Section 185 and 10 C.F.R.
S 50.53(b), the purpose of a proceeding on an extension of a construction permit is not to determine the safety or environmental aspects of the reactor.
In the two-step licensing process established by the Atomic Energy Act, those questions are determined first at the construction permit stage.
At the operating license stage, opportunity for a hearing is afforded to examine safety and environ-mental aspects of the completed plant, including develop-ments which have arisen since the construction permit was issued. /
Thus, the Atomic Energy Act establishes a two-step process, not a continuous hearing process, and Section 185 does not conflict with the statutory scheme.
Under the Atomic Energy Act, the question in connection with an extension of a construction permit is the " good cause" for the extension, not whether construction should be authorized.
Finally, the Petitioners have also f ailed to discuss why the purposes of Section 185 would not be served if
- /
Between those two stages, members of the public who wish to raise timely questions about safety or environ-mental aspects can request institution of a show cause proceeding.
(10 C.F.R.
S 2.206.)
1844 045
. Section 50.55(b) is applied in the context of the alleged "special circumstances" of this case.
The Petitioners have not shown why the circumstances of this caso demand dif ferent treatment than the circumstances in other construction per-mit extensions, and they have not offered any reasoning for their conclusion that application of Section 50.55 (b) would be contrary to the purposes for which Section 185 was enacted.
Prima Facie Case Section 2. 758 (c) requires that the Petitioners make a prima facio showing that the application of Section 50.55 (b) in this case would not serve the purpose for which it was adopted.
The Petitioners have failed to satisfy this burden.
The Petition for Uaiver consists of nothing except unsupported allegations.
Consequently, it must be denied under Section 2. 758 (c).
y ditional Comments e
It is apparent from the Petition to Intervene and the Petition for Waiver that the Petitioners have developed an interpretation of Section 50.55 (b) and seek its adoption by the NRC.
The Petitioners are not asking that Section 50.55(b) be waived because of the alleged existence of special circumstances; they are only requesting that Section 50.55(b) be waived if the Board does not accept the Peti-tioners' interpretation of Section 50.55(b).
i844 046
. However, Section 2.758 was not designed as a mechanism by which a
,-ty, dissatisfied with a licensing board's inter-preation of a regulation, could seek a more favorable inter-pretation from the Commission.
A more disagreement among the parties or between a party and the Board regarding the inter-protation of a reculation is not an apprcpriate ground for certifying an issue to the Commission under Section 2.758.
As Section 2.75S(b) states, the " sole ground" for certifica-tion is that application of Section 50.55(b) to the "special circumstances" in this case would not serve the purposes for which Section 50.55 (b) was adopted.
Consequently, the Peti-tioners' attempted use of Section 2.758 as a method of obtain-is not con-ing a favorable interpretation of Section 50.55(b) sistent with the purpose and language of Section 2. 758 and should be rejected.
Conclusion The Petitioners have failed to establish a prima facie showing that application of Section 50.55 (b) to the alleged "special circumstances" in this case would not serve the pur-pose for which Section 50.55(b) was promulgated.
It appears that the Petitioners are employir, Section 2.758 improperly to obtain an interpretation of Section 50.55 (b) which is 1844 047
\\ favorable to them.
Consequently, this petition should be denied.
Respectfully submitted, William H.
Eichhorn, Esquire EICIIIIORN, EICIIIIORN & LINK 5243 IIohman Avenue llammond, Indiana 46320 Maurice Axelrad, Esquire Kathleen II. Shea, Esquire LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 BY:
/((g,,f t<[ h WILLIAM II. tI'CrilIORN of
)
t f
<f *~ t. / i BY:
il h
hhk N KI/flILEEN II. SIIEA 1844 048