ML19323A426
| ML19323A426 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 04/17/1980 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8004210209 | |
| Download: ML19323A426 (8) | |
Text
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h UNITED STATES OF AMERICA 4/17/80 NUCLEAR REGULATORY COMMISSION l
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NORTHERN INDIANA PUBLIC
)
Docket No. 50-367 SERVICE COMPANY
)
(Construction Permit Extension)
)
(Bailly Generating Station,
)
Nuclear-1)
)
F NRC STAFF RESPONSE TO LAKE MICHIGAN FEDERATION MOTION FOR ADDITIONAL TIME TO FILE CONTENTIONS AND FIRST SUPPLEMENT TO PETITION r
On March 28, 1980 the Lake Michigan Federation (Federation), which has petitioned to intervene in the captioned matter, filed a motion to serve its contentions on an untimely basis. Pursuant to the Board's " Order Setting Special Prehearing Conference" dated February 7, 1980, interven-tion petitioners were directed to supplement their petitions with a list of specific proposed contentions at least 15 days prior to the special prehearing c.onference scheduled for, and held on, March 12-13, 1980. The Federation failed to file such a supplement.
Instead, it sought to present its contentions on the record at the special prehearing conference (Tr.173).
The Board disallowed this but permitted the Federation to request leave to submit contentions in a subsequent written motion (Tr. 175).
The instant motion seeks to adopt all of the proposed contentions of PetitionersPorterCountyChapter,etal.exceptcontention2, proposed 8 004210 hh
contention 4 of the State of Illinois, and advances an additional 1/
contention.~ The motion is also accompanied by an affidavit of a member of the Federation which contains a statement of his interest in the pro-ceeding and authorization to the Federation to intervene on his behalf herein.-2/
The Staff believes that the motion fails to adequately justify the Federation's late filing and should be denied.
l Pursuant to 10 C.F.R. 1 2.714(a)(3), late-filed contentions must address the factors relative to non-timely filings contained in paragraph (a)(1) thereof. See Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 2), LBP-73-31, 6 AEC 717, appealed dismissed as I
interlocutory, ALAB-186, 6 AEC 1155 (1973). These factors are:
(i) good cause, if any, for failure to file on time.
l (ii) the availability of other means whereby the petitioner's intcrest will be protected.
t f
-1/ The gravaman of this additional contention is that the findings which underlied the grant of the Bailly construction permit are no longer legally binding and that all applicable contentions (particularly those relevant to construction dewatering) should be considered in light of "all new issues which have arisen since the construction permit process."
Motion at 6.
The Federation presents no legal authority for this pro-position and the Staff position to the contrary is a matter of record.
See, M., "NRC Staff Response to Supplemental Intervention Petitions,"
dated March 7, 1980.
2/ The affiant states that his recreational interest in Lake Michigan will
~
be adversely impacted by Bailly construction. Though lacking.the requisite degree of particularity, this statement of interest could serve as a basis to confer standing on the Federation in this matter.
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s.
.s (iii) the extent to which the petitioner's participation l
may reasonably be expected to assist in developing a sound record.
(iv) the extent to which the petitioner's interest will be represented by existing parties.
(v) the extent to which petitioner's participation will broaden the issues or delay the proceeding.
With regard to the first factor, the motion states that the single lawyer j
for the Federation underwent surgery during January, February and March, 1980 (Notion at 3). It is also stated that there were substantial absences from the office and shortened work days during this period.
Id. It is further noted that the lawyer is also the administrator and was busy com-piling information on the Bailly site which could not be completed simul-taneously with the preparation of contentions.
While counsel's surgery and competing administrative and research respon-sibilities between January and March,1980 could have provided grounds for a timely request for an extension of time to file contentions or a post-3/
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ponement in the special prehearing conference, no such request was made.
Timely motions to postpone the special prehearing conference were submitted by other petitioners. The Federation, however, remained silent until its appearance at the special prehearing conference before seeking to assert i
l 1
3/ Cf. Virginia Electric and Power Co. (North Anna Nuclear Power Station, l
Uriits 1 and 2), ALAB-568,10 NRC 554 (1979).
l
-4 contentions.
Further, as the motion manifests, all the Federation seeks is to adopt the contentions of other petitioners.
It is difficult to con-ceive why this position should have taken so much time to formulate and memorialize. Thus, there is no " good cause" why the proposed contentions could not have been advanced in a timely manner and consideration of this r
factor weighs against the Federation.
The Federation does not specifically address the second factor. The Federation's foremost interest seems to be the alleged adverse impacts upon Lake Michigan due to construction dewatering. Motion at 2.
If so, this is probably the best forum within which to protect such interest. Therefore, consideration of this factor weighs in favor of the Federation.
With regard to the third factor, the Federation states that it published the " definitive" report on the " dewatering controversy" in March, 1980 (Motion at 2). A copy of the report is not provided. The Federation also claims to have " engineering and natural science capacity" to further address i
the dewatering issue. The Federation does not profess to have any " expertise" on any other issue. The dewatering concern is not a novel one or one which I
the construction permit extension will necessarily impact. See "NRC Staff Brief on the Finality of Ash Pond Seepage and Construction Dewatering Con-siderations at the Bailly Construction Permit Stage," April 10, 1980.
In any
l event, the motion fails to delimit the precise nature of the perceived impact that the Federation believes will accrue from continued construc-tion dewatering or identify the substance of its March, 1980 report. With-out this information, at a minimum, the Staff cannot conclude that the l
l Federation's participation will reasonably contribute to the development of the record, With regard to the fourth factor, the Federation merely adopts the contentions of the porter County Chapter petitioners and the State of Illinois.
If these petitioners are admitted, the Federation's assistance with their intervention would probably be welcomed.
In any event, the issues of joint concern Would be adjudicated. Therefore, this factor weighs heavily against the Federation.
With regard to the fifth factor, since the Federation essentially seeks to litigate contentions previously advanced by others (thus making consolidation likely), their participation should not affect the scope or pace of the proceeding. Therefore, consideration of this factor does not weigh against the Federation.
CONCLUSION After balancing the foregoing considerations, the Staff concludes that the motion to supplement fails to make an adequate showing upon the requirements i
of 10 C.F.R. f 2.714(a) governing non-timely filings and should be denied.
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. If the Federation is, nonetheless, granted intervention, the Staff believes that it should be confined solely to the issue of construction dewatering.
Respectfully submitted, k
2 a
Steven C. Gol g
Counsel for NRC Staff Dated at Bethesda, Maryland this 17th day of April,1980.
6
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0W4ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NORTHERN INDIANA PUBLIC Docket No. 50-367 SERVICE COMPANY (ConstructionPermitExtension)
(Bailly Generating Station,
)
Nuclear-1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO LAKE MICHIGAN FEDERA-TION MOTION FOR ADDITIONAL TIME TO FILE CONTENTIONS AND FIRST SUPPLEMENT TO PETITION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal amil system, this 17th day of April,1980.
- Herbert Grossman, Esq., Chairman Edward W. Osann, Jr., Esq.
Atomic Safety and Licensing Board Panel Suite 4600 U.S. Nuclear Regulatory Commission One IBM Plaza Washington, D.C.
20555 Chicago, Illinois 60611
- Dr. Richard F. Cole Robert L. Graham, Esq.
Atomic Safety and Licensing Board Panel One IBM Plaza U.S. Nuclear Regulatory Commission 44th Floor Washington, D.C.
20555 Chicago, Illinois 60611
- Mr. Glenn 0. Bright George and Anna Grabowski Atomic Safety and Licensing Board Panel 7413 W. 136th Lane U.S. Nuclear Regulatory Commission Cedar Lake, Indiana 46303 Washington, D.C.
20555 Dr. George Schultz Kathleen H. Shea, Esq.
110 California Street Lowenstein, Newman, Reis, Axelrad Michigan City, Indiana 46360 and Toll 1025 Connecticut Avenue, N.W.
Richard L. Robbins, Esq.
Washington, D.C.
20036 Lake Michigan Federation 53 West Jackson Boulevard obert J. Vollen, Esq.
Chicago, Illinois 60604 g/oBPI 109 North Dearborn Street Chicago, Illinois 60602
John Van Vranken, Esq., Chief
- Atomic Safety and Licensing Northern Region Board Panel Environmental Control Division U.S. Nuclear Regulatory Commission l
188 West Randolph Street Washington, D.C.
20555 i
Chicago, Illinois 60601
- Atomic Safety and Licensing l
Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Clifford Mezo, Acting President
- Docketing and Service Section
)
Local 1010 Office of the Secretary i
United Steelworkers of America U.S. Nuclear Regulatory Commission 3703 Euclid Avenue Washington, D.C.
20555 East Chicago, Indiana 46312 William H. Eichhorn, Esq.
Eichhorn, Morrow & Eichhorn 5243 Hohman Avenue Hammond, Indiana 46320 Diane B. Cohn, Esq.
Suite 700 2000 P Street, N.W.
Washington, D.C.
20036 Stephen Laudig, Esq.
445 N. Pennsylvania Street
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Indianapolis, Indiana 46204
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