ML19310A003

Porter County Chapter Intervenors Oppostion to Util Position That Ash Pond Seepage,Dewatering & Drawdown Cannot Be Considered in Proceeding.Potential Environ Damage Dictates Consideration

ML19310A003
Person / Time
Site:	Bailly
Issue date:	04/10/1980
From:	Vollen R VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19310A004	List: ML19310A003 ML19310A007 ML19310A009 ML19310A012
References
NUDOCS 8005210007
Download: ML19310A003 (4)

Text

. _ _ _ - - - - _ _ ___ _

_o .c .

April 10, 1980

. tEtJ 49r N

UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION

{ USNR0

-1 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD C APR 15GM > C D

Officeof thag 3 00&% .

IN THE MATTER OF ) 7

)

• G NORTHERN INDIANA PUBLIC ) DOCKET No. 50-367 SERVICE COMPANY )

(Bailly Generating Station, ) (Constr.uction Permit Nuclear-1) ) Extension)

PORTER COUNTY CHAPTER INTERVENORS '

BRIEF REGARDING CONTENTIONS 4 AND 5  ;

AND ASH POND SEEPAGE 1 Porter County Chapter Intervenors' Contentions 4 and 5, contained in our First Sunclement to Petition for Leave l

to Intervene, dated February 26, 1980, deal with site de-l watering during the extended period of construction sought i by NIPS'CO.. In general, they assert that site dewatering by  ;

NIPSCO will cause a drawdown of the groundwater in the adjacent Indiana Dunes National Lakeshore (" National Lakeshore")

and that in turn will cause irreparable injury to the unique and fragile ecology of the National Lakeshore. Those con-tentions further assert that no remedial program can effectively prevent or mitigate that irreparable injury.

As we understand it, NIPSCO's position is that because site dewatering and its drawdown effects were considered in the proceedings which resulted in the issuance of the construction pernit, which expired on September 1,1979, the matters of 8605sJeno"7

site dewatering and drawdown after that date cannot be considered at all in this proceeding. At the Special Pre-hearing Conference on March 13, 1980, we argued that the prior proceeding did not consider the effects of dewatering after September 1, 1979, the latest completion date in the construction permit, or the effects of dewatering over the much longer period of time sought by NIPSCO's requested extention.

Contention 4 points out some of the differences between dewatering in the period before September 1,1979 as compared to dewatering after that time. One of those differences is that at the time NIPSCO's dewatering program was approved and the construction permit was issued in 1974, there was seepage into the groundwater of the National Lakeshore from NIPSCO's ash ponds at a rate in excess of 1 million gallons per day. Since then, NIPSCO has entered into a contract with the U. S. Department of the Interior pursuant to which NIPSCO l

is obligated to seal the ash ponds. Assuming that NIPSCO fulfills its contractual obligation, there will be no seepage into the ground water of the National Lakeshore from NIPSCO's ash ponds during most of the dewatering period sought by NIPSCO's extension.

At the Special Prehearing Conference on March 13, 1980, counsel for NIPSCO argued. that the change regarding seepage was irrelevant, because the Licensing Board which had authorized the issuance of the construction permit did not take the ash pond seepage into consideration. The Chairman of the Board requested, as we understand it, that briefs be filed , within 4 weeks of the Prehearing Conference, with respect to the

. .o . , -

question of whether or not the Licensing Board in this proceeding, can or'should ' consider the ash pond seepage issue, in light of the fact that the prior Licensing Board had passed on the general question of dewatering.

Counsel for NIPSCO was wrong in asserting that ash pond seepage was not considered by the Licensing Board in the construction permit proceedings. The Licensing Board in those, proc'eedings explicitly took into consideration the rechange effect of seenage from the ash ponds into the National Lakeshore.

The Board 'said: "In addition, ash cond seepage is likely co offset the drawdown to some extent (Annambhotla and Brisette, following Tr. 10334, p . 6) ." (LPB-74-19, at p . 589 ; emphasis added). For that reason and that reason alone, NIPSCO's position must be rejected. Site dewatering and its drawdown effect on the National Lakeshore during the period when there will be no ash pond seenage must be considered in this proceeding.

Moreover, even if the construction permit proceeding had not explicitly considered ash pond seepage, in view of the extraordinarily complex and fragile ecosystem of the National Lakeshore, a change in circumstances as significant as the sealing of the ash ponds , with the effect of a decrease in the flow into the National Lakeshore of approximately one million gallons per day, must be considered in this proceeding.

• Ordinarily we would not refer to oral positions or statements of other counsel or of the Board without a citation to the transcrint.

In the circumstances of this case, however, it is somewhat awkward to cite specific language in view of the apparent deficiencies in the transcript. (See Order Requesting Views Concerning Prehearing Conference Transcrint, March 28, 19 80 ;- Por ter County Chaoter Inter-

~

venors' Views Conceining Prehearing Conference Transcript, April 10, l

1980.) Nonetheless , counsel for Porter County Chapter Intervenors believe their description of the oosition of NIPSCO's counsel and the issue which the Chairman requested be briefed is accurate and

' 9&Mh Aa Rhio respect seems accurate.

To exclude the harm to the National Lakeshore caused by dewatering during the period of extended construction sought by NIPSCO is to say, in effect, that not even the incremental effects of the increased period of construction can be considered in this proceeding.

Finally, it should be noted that the Staff position concerning Contentions 4 and 5 is as follows: "Without considering the merits of these contentions,, the Staff believes that they are acceptable issues for adjudication in this proceeding..." (NRC Staff Response to Supplemental Intervention Petitions, dated March 7, 1980, p. 12).

CONCLUSION NIPSCO's position that the ath pond seepage, dewatering and drawdown and the consequent harm to the National Lakeshore, cannot be considered in this proceeding, must be rejected.

DATED: April 10, 1980

, Respectfully submitted, r

i Robert J. 'Volfen, one of the Attorneys for Porter County Chapter Intervenors Robert J. Vollen 109 N. Dearborn St.

Chicago, IL 60602 (312) 641-5570

-