ML19323D209

Memorandum in Response to Presiding Officer 800313 Order. Urges Denial of CP Extension.Bases for Extension Were Under Util Control.Certificate of Svc Encl

ML19323D209
Person / Time
Site:	Bailly
Issue date:	04/09/1980
From:	Hansell D, Scott W ILLINOIS, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8005210264
Download: ML19323D209 (8)

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l e-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF:

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DOCKET 50367 NORTHERN INDIANA PUBLIC

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(Construction Permit Extension)

SERVICE COMMISSION

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(BAILLY GE'IERATING STATION

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NUCLEAR-1)

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MEMORANDUM OF ILLINOIS Pursuant to the March 13, 1980 Order of the Presiding Officer that parties submit within 30 days of the pre-hearing conference memoranda on the question of whether the reasons for not completing the construction of a power plant by the latest completion date specified in the construction permit are within the centrol of the applicant should be considered, the People of the State of Illinois (Petitioner) presents its Memorandum.

At the pre-hearing conference Petitioner offered its arguments regarding the need for a broad based hearing in this proceeding.

The Board must consider several different factors before a determination can be made that NIPSCO has demonstrated good cause for extending its construction permit.

These factors include:

1.

Significant new developments that were not and could not have been considered at the initial construction permit proceeding; 2.

The incremental effects of the additional construction at Bailly; 3.

The reasons for delay in completion of the plant within the latest completion date; a.

Whether the reasons given for delay were or were not within the control of the applicant; 6005210jQ(f [

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Whether the reasons given for the delay in construction of Bailly are in fact the real reasons for the delay; and c.

Safety or environment factors arising out of the reasons for the failure to complete the plant on time.

4 4.

The current status of construction on the facility.

This brief addresses only the question of whether tie reasons for not completing construction on time were within the control of the applicant.

10 C.F.R.

S50.55(b), governing the extension of a construction permit, provides in pertinent part:

"The Commission will recognize, among other thing, developmental probi tas attributable to the experimental naturc

.f the facility or fire, flood, explosion,s; tike, sabctage, 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.

(Emphasis supplied)

The plain import of these words is that in considering whether good cause exists the Commission will consider whether the reasons put forth by the applicant to excuse the delay in construction were beyond the control of the applicant.

The Atomic Safety and Licensing Appeal Board in Michigan and Indiana Electric Company (Donald C. Cook Nuclear Plant) ALAB-129, 6 AEC 414 (1973), which all parties in this proceeding rely-upon extensively, provides clearly that among the considerations the Commission will take into account in determining whether good cause exists is whether the reasons for the applicant's failure to

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complete construction by the latest completion date were beyond the i

control of the applicant:

"We are satisfied, on the basis of the agreed-upon statement of facts respecting the causes for the construction delay, that the applicants have carried their burden of establishing that the failure to complete the construction of the two units by the latest completion dates specified in cotFtruction permits was due (in large measure at least) to circumstances beyond their control.

Thus, assuming that the existence of " good cause" for an extension of the completion deadlines hinces totally upon the reasons why those deadlines were not met, there was " good cause" here.

(Emphasis supplied).

6AEC at 416."

The Appeal Board concluded that, in view of the advanced stage of construction of Cook, any consideration of factors other than whether the reasons for the delay in construction were beyond the control of the applicant need not be considered.

The NRC Staff has also interpreted 50.55(b) to require consideration of whether the reasons for the delay were beyond the control of the applicant.

In a letter of December 15, 1978 l

from the NRC staff to the Virginia Electric and Power Company

[

j regarding the extension of construction completion dates for the North Anna Nuclear Plants, Units 3 and 4 (attached hereto and incorporated herein) the staff stated:

" Justification for extending the latest date for completion of a Construction Permit consists of a showing of good cause based upon evsnts or circumstances beyond the control of the applicant which have occurred or will occur subsequent to the issuance of the Construction Permit."

(Emphasis supplied).

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• Thus where it cannot be shown that responsibility for circumstances which caused the delay of construction are beyond the control of the applicant, good cause does not exist to grant a construction permit extension.

If the applicant had control of the events causing the delay, and the applicant did not use its control to prevent the delay, it cannot latter, after the construction permit has expired, be allowed to assert that the failure to exercise its c::n controls be declared the basis of a finding of good cause.

In essence, the applicant is estopped to plead good cause, ba:sd on its own failure to prevent the delay.

Aside from serving alone as a basis to deny good cause, the fact that the reasons for delay of construction within the control of the applicant is also relevant as it applies to other issues raised by Petitioner's pleadings.

That the reasons for not completing the plant were with the applicant's control raises the issue of whether the applicant is technically qualified to complete construction and operate the nuclear plant.

10 C.F.R. 50.40(b).

As the delay appears to have resulted at least in part from a lack of technical competence an inquiry into those factors is warranted.

Thus it is clear from 50.55(b), past precedent of the Commission. and prior interpetation by the staff itself of 50.55 (b) that reasons which are within the control of the applicant as to

why the construction of a power plant did not get completed by the latest completion date are significant as a basis to deny an extension of the construction permit, a

Respectfully submitted, PEOPLE OF THE STATE OF ILLINOIS l

WILLIAM J. SCOTT Attorney General State of Illinois DEAN HANSELL t

Assistant Attorney General Environmental Control Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60601 312-793-2491 OF COUNSEL JOHN VAN VRANKEN, Chief Northern Region SUSAN N.

SEKULER Assistant Attorney General DATED: APRIL 9, 1980 t

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CERTIFICATION OF SERVICE I, JESSIE GIBSON, hereby certify that I have served a copy of the foregoing Memorandum Of Illinois upon each of the following persons by deposit in the United States Mail, first class postage prepaid, this 10th day of April, 1980.

Herbert Grossman, Esquire U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Glenn O.

Bright U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Richard F. Cole U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Howard K.

Shapar, Esquire Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Steven Goldberg, Esquire Office of the Executive Legal Director i

U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Dr. George Schultz 110 California Michigan City, Indiana 46360 William H.

Eichorn, Esq.

5243 Hohman Avenue Hammond, Indiana 46320

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I SUBSCRIBED AND SWORN TO BEFORE ME THIS 10TH DAY OF APRIL, 1980.

NOTARY PUBLIC i

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DEC 151378 cocxe: Fiie NRC PDR Local PCR LWR #3 File I

0. Vassallo Docket Nos.

50'-404

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F. Williams i

and 50-405

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I t M. P.ushbrook ELD SCC:

NSIC Mr. W. L. Proffitt.

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Senior Vice President - Power.

Virginia Electric & Power Company P. Leech, ACRS (16)

P. O. Box 266661 W. Regan l

Richmond, Virginia 23251 i

Dear Mr. Proffitt:

j SUBJECTi EXTENSION OF CONSTRUCTION COMPLETION DATES FOR NORTH ANNA POWER STATION, UNITS 3 AND 4 '

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Qe have reviewed your request of November 21,.1978 for extending the.1atest completion dates for Construction Permits CPPR-ll4.and CPPR-115 for your

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North Anna Power Station, Units 3 and 4. -You requested that the Construction Pemit for Unit No. 3 be extended from December 31,197E to November 1,1986 j

and for Unit No. 4 from December 31, 1979 to December 1,1987.

While there exist no definitive guidelines for the length of time a Cpnstruction Pemit j'*

can be-extended, the requested ' extensions of nearly eight years per unit substantially exceed the length of_ time -for which previous Construction j

.Pemits have been extended for other permittees. We will. evalua.te.your request to extend the latest completion dates of your Construction Pemits using the standard of "a reasonable length of time" as stated in 10 CFR i

50.55(b).

In this case, a reasonable length of time may be. interpreted l

as the End of the calendar year in which your current. schedule calls for fuel loading of Units 3.and 4 i.e. December 31, 1983 and December'31, 1984, l

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respectively.

. Justification for extending the latest date for completion of a Construction' Fermit. consists of a showing of good cause based upon events or circumstances

- beyond the control of.the applicant which have occurred or will ' occur subse-quent to the issuance of the Construction Pemit.

In addition, the delayed activities must be cumulative to support the recuested latesi; date for comple-l !.'

tion to its appropriate extent.

We will need this type of detailed information as a basis for evaluating your request., Pleas,e provide the following additional infomation:

In your request, you show same-' good causes for your delays; however, you (1)

,al so =ention"...addi tional 'unquanti fiabTe potential, dela.ys...".

Please indicate.how you arri.ved at your latest completion dates and provide detailed infomation to suceort those dates:

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1373 (2)

In ycur recuest, you also state that "...dasign changes are being made ::

nferm with current regulatory requirements."

With respect to these design changes which have caused delays, clease f.dentify these changes and specify their impect on your recuest for an excension.

i If;ycu have any questions regarding this matter please contact us.

Sincerely,

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U i.:.a seed y Oh Pm Olan 0. Parr, Chief Light Water Reactors Branch No. 3 Division of Project Management 3

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