ML19275A743

Responds on Behalf of Northern in Public Svc Commission to Porter County Chapter of Isaac Walton League 791003 Motion to Consolidate Hearings.Consolidation of Proposed Extension Re Short Pilings Proposal Is Improper

ML19275A743
Person / Time
Site:	Bailly
Issue date:	10/10/1979
From:	Axelrad M LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
NUDOCS 7910190066
Download: ML19275A743 (6)

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October 10, 1979 Mr. Samuel J. Chilk, Secretary U. S. Nuclear Regulatory Cormission Washington, D.C. 20555 Re: Northern Indiana Public Service Company Bailly Generating Station, Nuclear-1 Docket No. 50-367

Dear Mr. Chilk:

On October 3, 1979, Porter County Chapter of the Isaac Walton League of America, Inc., and other organizations and individuals which have made various requests for hearings in connection with Bailly Generating Station, Nuclear-1, filed a " Motion to Consolidate." The motion asks "the Commission" to consolidate their requests for a hearing with respect to a proposed extension of the Bailly construction permit with their request for a hearing i;. connection with the "short pilings proposal."

No Cormission regulation specifically authorizes this

" Motion to Consolidate." Nor does any regulation authorize answers to the Motion. (10 C.F.R. S 2.730 appears to apply to motions filed in " proceedings" and there is presently no Bailly " proceeding.") Nevertheless, we take the liberty of filing this brief response. .

It is our understanding that the request for a hearing with respect to the "short pilings proposal," first filed with the NRC on November 1, 1978, remains pending before the Commiesion and that the requests for hearing in ,,nnection with the Licensee's request for extension of the cocstruction 791oir o

'o66 1179 124 5 C,

,LowENsTEIN, NEWS 1AN, REIs, AXEI. RAD & Tot.L Mr. Samuel J. Chilk October 10, 1979 Page Two permit are pending before the Staff of the Commission. We can conceive of no purpose to be served by " consolidating" separate requests for hearings on these separate matters pending before separate entities within the NRC; certainly, the motion identifies none.

As the Commission is aware, Licensee is fully convinced that no hearing with respect to the "short pilings proposal" is required as a matter of law and that no such hearing should be ordered as a matter of discretion. See letter, William H. Eichhorn to Samuel J. Chilk with attached Com-ments (January 8, 1979).

Similarly, no hearing prior to action by the NRC with respect to Licensee's request for extencion of the con-struction permit is required as a matter of law since, as noted in our request, the action does not involve a "sig-nificant hazards consideration." In such case, of course, notice is published after issuance of the amendment and members of the public may then request a hearing. In every prior case of which we are aware, a number totalling more than 35, that is the procedure which has been followed.

Elemental fairness as well as concern for an orderly regulatory process require that the extension of completion date requested for the Bailly facility be evaluated and treated procedurally on the same basis as other requested extensions. If the application filed by the Nortl ern Indiana Public Service Company should be singled out for treatment at odds with those precedents, it could not only prejudice the Licensee in the eyes of the public (including the financial community upon which all utilities necessarily rely) but it would set a disturbing precedent for other Commission license holders. If persistent intervenors, whose sole objective is to block or delay a project, are permi "ed to determine whether or when a hearing is to be held, a mockery will be made of the regulatory process. The Commission has previously declined to order institution of a proceeding to suspend and revoke the Bailly construction permit at the request of some of the present intervenors.

Memorandum and Order of the Commission, 7 NRC 429 (1978).

The Court of Appeals affirmed the Commission's denial of that requested proceeding. Porter County Chapter v. NRC, F.2d (D.C. Cir. 1979).

1179 125

LOWENSTEIN. NEWM AN, RErs, AXELRAD & TOLL Mr. Samuel J. Chilk October 10, 1979 Page Three Without regard to the merits of the requests, their consolidation would be pointless and improper. The factors to be considered as to each request are substantially dif-ferent. The scope of the requested hearings, if granted, would be substantially different. There is thus no reason for " consolidation" except the requestors' penchant for attempting to consolidate and make inter-dependent matters which are independent and can properly be reviewed on their own merits. For example, as the Commission will recall, some of these requestors asked the Court of Appeals to delay the argument in and decisicn on the case cited above pending completion of the administrative proceeding they requested on the proposed extension of the Bailly construction permit.

The Commission and NIPSCO objected to the unwarranted at-tempt to mix disparate subjects; the Court denied the Motion and, of course, ultimately ruled against the requestors on the merits of the appeal.

For all of the foregoing reasons, Licensee opposes the present " Motion to Consolidate" as unsupported and serving no useful purpose. We request its denial.

Respectfully submitted, William H. Eichhorn, Esq.

EICHHORN, EICHHORN & LINK 5243 Hohman Avenue Hammond, Indiana 46320 Maurice Axelrad, Esq.

Kathleen H. Shea, Esq.

LONENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036

' 't T s s

By I i MG -. 1

' - ~ ' - .

Maurice Axelrad Dated at Washington, D.C.

This 10th day of October, 1979 -

1179 i26

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

)

In the Matter of

)

NORTHERN INDIANA PUBLIC SERVICE ) Docket No. 50-367 COMPANY )

)

Bailly Generating Station, )

Nuclear-1 )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the letter from Maurice Axelrad to Samuel J. Chilk dated October 10, 1979, were served on the following by deposit in the United States mail, postage pre-paid, or by hand delivery this 1001 day of October, 1979.

Joseph Hendrie Chairman U.S. Nuclear Regulatory Conmission Washington, D.C. 20555 Victor Gilinsky Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard Kennedy Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Peter Bradford Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 John Ahearne Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Leonard Bickwit General Counsel Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.~. 20555 j 7g 7

. ., e Howard K. Shapar Director, Office of Executive Legal Director U.S. Nuclear Regalatory Commission Washi ngton , D. C. 20555 Harold R. Denton Director, Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washing ton , D.C. 20555 Ms. Marcia Mulkey Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Chief, Public Proceedings Branch Office of Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Robert J. Vollen Business and Professional People for the Public Interest 109 North Dearborn Street Suite 1300 Chicago, Illinois 60602 Edward W. Osann, Jr.

Wolfe, Hubbard, Leydig, Voit & Osann, Ltd.

One IBM Plaza Suite 4600 Chicago, Illinois 60611 Richard L. Robbins Lake Michigan Federation 53 West Jackson Boulevard Suite 1710 Chicago, Illinois 60604 Russell R. Eggert Assistant Attorney General Environmental Control Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60601 Michael I. Swygert 25 East Jackson Boulevard Chicago, Illinois 60604 ,

William Andrews President, United Steelworkers of America Local Union 1010 3703 Euclid Avenue East Chicago, Indiana 46312 Meredith Hemphill, Jr.

General Counsel Bethlehem Steel Corporation 701 East Third Street Bethlehem, Pennsylvania 18016 Robert L. Graham Jenner & Block One IBM Plaza Suite 4300 Chicago, Illinois 60611 s

ht, \. ., ,,

Maurice Axelrad LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 1179 129