ML19331B733
| ML19331B733 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 08/07/1980 |
| From: | Grossman H Atomic Safety and Licensing Board Panel |
| To: | NORTHERN INDIANA PUBLIC SERVICE CO. |
| References | |
| ISSUANCES-CPA, NUDOCS 8008120705 | |
| Download: ML19331B733 (72) | |
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- 80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 8
Ott;ce g b -11 Atomic Safety and Licensing Board M* ting j ry
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i, Herbert Grossman, Chairman 4
Glenn O. Bright, Member tu Dr. Richard F. Cole, Member In the Matter of
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NORTHERN INDIANA PUBLIC SERVICE
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COMPANY
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Docket No. 50-367 CPA
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(Bailly Generating Station,
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(Construction Permit Extension)
Nuclear 1)
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ORDER FOLLOWING SPECIAL PREHEARING CONFERENCE I.
PRELIMINARY MATTERS A.
Framework of this Proceeding A special prehearing conference was held March 12 and e
13, 1980 beginning at 9:30 a.m.
each day at the National Guard Armory, U.S. Route 30 and Lynwood Avenue, Valparaiso, Indiana 46383, pt$rsuant to 10 C.F.R. 5 2.751a, in this proceeding involving a proposed construction permit extension for the Northern Indiana 1/
Public Service Company ("NIPSCO" or " Permittee").
Subsequent 1/
A notice of this conference scheduled at a different site was sent to all participants on February 7, 1980.
The Order was published on February 14, 1980 at 45 Fed. Reg. 10098.
On Feb-ruary 15, 1980, Petitioner, the State of Illinois, moved for a two-week extension in order to allow its counsel more time to prepare its contentions.
The Board denied that motion on February 20, 1980 because of the unavailability for an extended period of one or more participants in this proceeding on any possible alternate dates.
The originally scheduled site of the conference was changed to the National Guard Armory by Order dated March 7, 1980,in order to accommodate the expected large ati:endance.
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. to the scheduling of the conference,
'Mr. Glenn O. Bright, a scientific member of the Board, was hospitalized with serious injuries suffered in an accident at his home.
Consequently, the conference was conducted by a quorum consisting of the Chairman and Dr. Richard F. Cole, as permitted under 10 C.F.R. I 2.721(d).
The Board denied a motion made at the beginning of the prehearing conference by the Porter County Petitioners (see later description),
to adjourn the conference until a full Board could be in atten-dance on the ground that it was not worth the extra delay in order to have both technical members present at a conference devoted primarily to procedural and legal matters.
The purpose of the special prehearing conference, as
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stated in the February 7, 1980 Order and under 10 C'.F.R.
5 2.751a, was tc discuss the intervention petitions, the requests of peti-tioners for waiver of, or exception to, 10 C.F.R. I 50.55(b),
specific issues that might be considered at an evidentiary hearing, and possible further scheduling in the proceeding.
On November 30, 1979, the N.R.C. had published a Notice of Opportunity for Hearing on the proposed extension of construc-tion permit in the Federal Register (44 Fed. Reg. 69061) requiring
that all petitions for leave to intervene be filed by December 31, 1979, in accordance with 10 C.F.R. 5 2.714.
By that date, individual petitions were received from Dr. George Schultz, Local
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1010 of the United Steelworkers of America, the Lake Michigan Federation, and the State of Illinois.
Joint Petitions were received from the Porter County Chapter of the Izaac Walton League of America, Inc., Concerned Citizens Against Bailly Nuclear 5ite, Businessmen for the Public Interest, Inc., James E. Newman, and Mildred Warner (" Porter County Chapter Petitioners"); the City of Gary, Local 6787 of the United Steelworkers of America, the Bailly Alliance, Save the Cunes Council, and the Critical Mass l
Energy Proj ect (" Gary Petitioners"); and George and Anna Grabowski.
The State of Illinois also sought intervention as an Interested State under 10 C.F.R. 5 2.715(c).
Certain of the petitioners also petitioned for a waiver of, or an exception to,
10 C.F.R. 5 50.55(b), to the extent that it might be interpreted as limiting matters to be considered in this proceeding to the reasons why construction was not completed by the latest date in the construction permit.
B.
Transcript Problems As permitted by 10 C.F.R. 5 2.751a(c), the special prehearing conference was stenographically reported.
- However, the transcripts were of such poor quality, that they were returned to the reporter as unacceptable, together with a request that they be retyped and that the stenotype tape be forwarded to the N.R.C.
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. for verificttion of the retyped transcript.
Simultaneously with our returning the transcripts as unacceptabie, we issued an order requesting the participants' opinions of the transcripts and their suggestions with regard to further procedures in view of the deficiencies.
The responses uniformally condemned the transcripts as largely inecmprehensible, garbled and unreliable.
Predictably, those who had said the least at the conference were inclined toward having the partici-
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pants correct their own statements; those who had been required to say the most, including the Chairman, recognized the hopeless-ness of the task.
The revised transcript (only the transcript for March 12, 1980 was revised) has now been received and represents a consider-able improvement over the original.
However, since most of the problem arose from the reporters' failure to stenographically tape with accuracy the statements of the participants, the revised transcript is still unsatisfactory.
Taking all of the responses into account, the Board determines that the best procedure for ameliorating this unprec-edented situation is as follows:
1.
This Order refers to the revised transcript pages for con-venience, not accuracy, and is also based upon the recollection of the Board as to what transpired at the conference and the filings
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' of the parties.
To give the conference participants the fullest opportunity to present their positions and preserve them in the record, the Board also issued this Order as a Provisional Order on May 30, 1980, and allowed objections (including argumentation, whether or not previously expressed, and requested revisions) to be filed within twenty-five (25) days of the service of the Pro-visional Order.
The Board has taken those objections into account and now issues this final Order.
Objections may now be filed to this Order (including those that may have been advanced to the Pro-visional Order) within the time limits prescribed by 10 C.F.R. 5 2.751a(d): 5 days after service of this Order by the parties, except the Staff; 10 days after service by the Staff.
The time for appeal under 10 C.F.R. 5 2.714a(a) is within 10 days after the date of service of this Order.
2.
The following order shall govern the use of the transcript and shall be stapled to the front cover of each volume of the special prehearing conference transcript:
l "Because of the poor quality of this transcript, which does not constitute a verbatim transcript of the proceedings, this cannot be considered an authoritative or official transcript of the I
proceedings, but may be referred to as a refer-ence tool, pursuant to the August 7, 1980 Order of the ASLB."
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. II.
STANDING TO INTERVENE IN THIS EXTENSION PROCEEDING Prior to the special prehearing conference, the Staff and Permittee objected to the petitions to intervene on the grounds that the petitioners had not demonstrated the possibility of their suffering an injury in fact from the Permittee's receiving the requested extension, and had not raised an " aspect" which would fall within the scope of the proceeding.
They also obj ected to the failure of organizational petitioners to submit the requisite statements specifying their members' personal interests in the proceeding and authorizations for the organizations to represent them.
According to the Permittee and Staff, only a petitioner who could demonstrate that he would be adversely affected in some interest cognizable by the statutes from the prolonged construction period could show an injury that might result from an extension proceeding.
In their_ view, insofar as the petitioners allege injuries arising from the operation of the facility they would have no standing to complain because the only effect of the requested extension would be to prolong the period of construction; the con-struction, itself, had already been authorized after lengthy hearings on the health, safety and environmental considerations relating to the use of the site for an operating nuclear facility.
Petitioners, on the other hand, argued (Tr. 24-26, 30-34)
I that granting the extension should be considered the same as l
7-granting a construction permit, because the Bailly facility could not be built without the extension.
Hence, anyone who might be adversely affected by the operation of the facility would have standing to intervene in the extension proceeding.
In the Board's Provisional Order, we agreed with petitioners that anyone who could claim standing in a construction permit proceeding because of injury from the operation of the facility could claim standing in an extension proceeding if the other prerequisites were satisfied, although for slightly different reasons than offered by the petitioners.
We di3 not view the granting of the extension to be the equivalent of
'9 issuance of a construction permit to build Bailly, as petitioners contended.
However, we recognized that the granting of an extension not only permits a prolonged period of construction but also permits con-l l
struction to proceed without requiring further health, safety or environmental hearings, which might protect persons affected by the operation of the facility, until the operating license pro-ceeding.
Consequently, the Board held that those persons who would have standing to intervene in new construction permit hearings, which would be required if good cause could not be shown for the extension, would have standing to intervene in this proceeding to show that no good cause existed an4 consequently, new construction permit hearings would be required to complete construction.
O w
. In their responses to the Provisional Order, the Staff and Permittee obj ect to this conclusion, but,.in our view, only confirm its correctness.
They object upon the ground that the Board's conclusion was based upon " prejudging the case" by specu-lating that the extension would be in violation of the Atomic Energy Act when, in fact, it might be based upon good cause and clearly provided for by.the Act.
(Permittee, p. 33; Staff, p. 6.)
The Board confesses that it has indeed prejudged certain assertions in petitioners' favor for the purpose of determining standing.
Clearly, the only way to determine whether a petitioner can claim injury in fact is to assume that its contentions are correct to determine whether it would suffer an injury cognizable by the Atomic Energy Act by not being admitted to the proceeding.
The Staff additionally contends (Response to Provisional Order, p. 5) that a petitioner's interests in operational safety issues should not confer standing since the fundamental purpose of an extension proceeding is not to assess the safety of the plant.
In this, the Staff confuses " standing" with the scope of the proceeding.
To determine whether standing exists, the Board must determine whether a result of the proceeding unfavorable to the petitioner (in this case the granting of an extension) would adversely affect petitioner's interests.
While the scope of the l
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9-proceeding is limited by the Notice of Opportunity for Hearing and 10 C.F.R. 50.55(b), it is the end result of the hearing ~(i.e.,
either the granting or denying of the requested extension) that must be considered to determine whether petitioners' interests will be affected.
As we see it, the result would not be merely a determination of whether each contention is correct and whether the construction period should be prolonged, but also a determina-tion of whether the permit should expire, requiring new construc-tion permit hearings that might protect the petitioners' interests before further construction could proceed.
Accordingly, the Board will admit as having " standing" to challenge Permittee's assertion of good cause for the extension those petitioners who are in a position to allege injury frem the operation of the facility if they otherwise qualify for intervention, including raising at least one contention within the scope of this pruceeding.
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III. SCOPE OF THE PROCEEDING A.
Positions of the Participants The Staff and Permittee would concede as valid only those contentions which relate to the reasons for the delay in completion of the facility, the reasonableness of the requested extension, and any alleged incremental adverse environmental and radiological effects of the prolonged period of construction.
They would relegate all other issues raised, to the extent not already covered in the construction permit hearings, to the operating license hearings under the bifurcated system in effect under the regulations in reliance upon the only decided N.R.C.
case in this area, Indiana and Michigan Electric Co. (Donald C.
Cook Nuclear Plant, Units 1 and 2), ALAB-129, 6 AEC 414 (1973).
Under that opinion, the Permittee would agree to the Board's considering safety or environmental issues only if they are related to the causes of the delay, "in and of themselves cast serious doubt upon the ability of the Applicant to construct a safe plant", and considering them could not abide the operating license proceeding. (NIPSCO Response, March 7,1980, p. 25, relying upon Cook,: supra, p. 420, emphasis in original.)
The Staff asserts that all of the safety issues raised here that are not directly related to the prolonged period of construction should abide the operating li-cense proceeding.
(Staff Response, January 23, 1980, p. 9, fn. 10.)
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i Pet'tioners also rely upon the Cook case but, as can be i
expected, urge a much broader scope to this proceeding.
They uniformly deny, as contended by the Staff and Permittee, that they are attempting to re-litigate any of the issues already decided at the construction permit stage.
However, they do not agree that the " good cause" that must be shown for the extension is equivalent to a showing of good cause for the' delay in construction.
The Porter County Petitioners (Tr. 104-106) raise four elements which they contend must be demonstrated by a permittee to establish good cause for an extension: 1) a showing of good cause why the construction was not completed by the completion date, 2) an absence of adverse effects from constructing the facility over the prolonged period, 3) a showing that there are no significant adverse safety or environmental effects which arise from the reasons leading to the noncompletion of the faci-lity (as petitioners contend was determined in Cook), and 4) a showing that no significant events have occurred since the initial completion date that could adversely affect the determi-nation to complete the facility.
The significant events, peti-tioners concede '(Tr.105),are only those that have occurred sub-sequent to the granting of the construction permit and therefore could not have been considered at the construction permit stage.
Petitioners further concede (Tr. 106) that the Board has
. discretion to consider which events are significant enough to fall within the fourth category, but argue for a broad exercise of discretion in this case because of the unique set of circumstances under which this plant is alleged to be only one percent completed, the requested extension is for a lengthy period, and the site of this plant would be considered unsatisfactory under proposed new siting requirements.
Petitioners strenuously deny that they are asking the Board to depart from the established bifurcated systen of first holding a construction permit proceeding and then offering an operating license proceeding.
The Porter County Chapter Petitioners (Tr.
92-99) and the Gary Petitioners (Tr. 134-135) contend that the requirement to show good cause for the extension pursuant to Section 189 of the Atomic Energy Act and 10 C.F.R. 50.55(b) already establishes a trifurcated system under which a hearing must be offered in the in-terim between the issuance of construction permit and the operating license proceeding upon the permittee's request for the extension, 4
in order to consider significant developments to that point.
In this they rely upon the difference in the wording between the FCC statute, which requires only a showing of good cause for the delay, and the Atomic Energy Act which requires a showing of good cause for the extension.
They contend that, by adopting this dissimilar language which suggests going beyond merely the reasons for the delay, Congress intended to afford a hearing on significant
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developments to the time of the extension proceeding.
The State of Illinois Petitioner adds to the position that there is a broad scope to the hearing of " good cause" by relying (Tr. 138-145) on 10 C.F.R. 5 50.91 which governs the amendment to construction permits and requires that the Commission be guided by the " considerations which govern the issuance of initial *** construction permits to the extent applicable and appropriate".
The Petitioner argues further that those considera-tions are articulated in 55 50.35(a)(4) and 50.40 which require that all health and safety questions be satisfactorily resolved so that the public not be endangered.
Like the other petitioners, the State of Illinois agreed (Tr.142) that only significant environmental or safety issues which are unrelated to the cause l
for the delay should be considered in the extension proceeding and that other environmental and safety issues could abide the operating l
license proceeding.
B. The Board's Determination of the Sc'oce of the Proceeding 1.
Matters Related to the Prolonged Period of Construction a)
In General In determining the' scope of this proceeding, we begin by noting that the appeal board in Cook, ALAB-129,' supra, did not interpret Section 185 of the Atomic Energy Ace or 10 CiF'.R.
l f 50.55(b) as rsstrictively as Section 319 of the Federal
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Communications Act, 47 U.S.C. 319, which requires a forfeiture 4
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. of the permit unless circumstance.beyond the control of the permittee prevented.ttaely completion of the facility.
Under Cook, a' licensing board must' consider at-least health, safety or environmental issues which'ari'se from the reasons assigned ~
for the extension that cannot abide the operating license hearing, even if not directly related to the prolonged period of construction.
(6 AEC, p. 420.)
One contention in dispute raised by more than one peti-tioner which may fit that category involves the short pilings issue, which was the subject of a Commission Memorandum and Order, dated December 12, 1979, Northern Public Service Co. (Bailly Generating Station, Nuclear 1),
CLI-79-11, 10 N.R.C. 733.
At the construc-tion permit
- hearing, NIPSCO's consultant had testified that the company anticipated that the foundation pilings for the faci-lity would be driven to bedrock or glacial till.
After the con-struction permit had issued, NIPSCO communicated to the N.R.C. Staff that it intended to install piles extending only to the glacial lacustrine deposits.
The State of Illinois and Local 1010 of the United Steelworkers, petitioners in this proceeding, petitioned the Commission to determine that the proposed change from installing f
pilings to bedrock or glacial till to installing shorter pilings l
l constituted a request for a construction permit amendment involving significant hazards considerations that required a hearing.
The Commission's Order denied that request.
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- Unquestionably, the change ~to short pilings is a safety issue that arises from a reason for the delay in the completion of the facility, since NIPSCO assigned, as one of its reasons for i
the delay, the cessation of construction since December 28, 1977, pending the completion of the N.R.C. Staff's review "of the method i
to be used for installation of foundation piles for the facility."
Spplication for Extension, February 7,1979, p. 2.)
Consequently, under Cook, we must determine whether that issue should abide the operating license proceeding.
To begin that determination, we must first decide on the standards that govern the question of which ' tens are to abide the operating license proceeding.
If we turn first to 10 C.F.R. $ $0.91, we see that, "In determining whether an amendment to a license for construction permit will be issued to the applicant the Commission will be guided by the considerations which govern the issuance of initial licenses or construction permits to the extent applicable and appropriate."
The standards which determine the matters to be heard during the construction permit proceeding are spelled out in 10 C.F.R. 5 50.34(a); the standards covering the matters to be considered in the application for an operating license are spelled out in 10 C.F.R. 5 50.34(b).
However, certain of the matters covered by 5 50.34(a) may be deferred to the operating license application under S 50.35(a) if they fit the first three categories specified in that section and there is reasonable assurance that
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. all safety questions relating to those items will be satisfactorily resolved before the latest date stated in the application for com-plation of construction and that the facility will not present an undue risk to the health and safety of the public.
For a discus-sion of the application of these sections to determine what matters may abide the operating license proceeding, see Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 776-778 (1977).
We first must ask whether, on the basis of the informa-tion now available, the safety issue raised would be considered at a construction permit proceeding by applying 55 50.34(a) and 50.35(a).
If the answer is in the negative, that should end our consideration of the issue under any theory advanced by the peti-tieners.
Clearly, the mere request for an extension is no reason to accelerate a consideration of issues that the rules provide for considering no' earlier than the' operating license stage.
But if we decide in the affirmative that, on the informa-tion now available, the safety issue would have been heard in the construction permit proceeding, we have not yet resolved the ques-tion of whether it should be heard here.
Cook, after all, tells us (6 AEC, p. 420) that the only issues arising from the reasons assigned for the extension that we should consider are those "nec-essary in order to protect the interests of intervenors or the public interest."
The Board saw no "possible prejudice to intervenors"
. if the consideration of lesser operational safety problems were to be deferred to the operating license hearing.
(Ibid. )
The test as we see it is whether, taking into consideration the construction permit board's determination under 10 C.F.R.
S 50.35(a)(4) that there was " reasonable assurance" that all safety matters would be satisfactorily resolved before the construction completion date in the original application, this Board has strong reason to believe that there no longer is such reasonable assurance with regard to a safety issue raised that the issue will be satisfactorily resolved by the new completion date.
If compelling reasons are offered with regard to the safety issue for not resting on a prior board's deter-mination (explicit or implicit) that reasonable assurance exists that all safety issues will be resolved, the current Board must hear the issue.
Cf. 10 C.F.R. 5 2.760a which permits a Board to raise serious safety, environmental or common defense matters on its own motion in operating license proceedings.
Not only does that interpretation maintain the integrity of the two-stage process favored by the Atomic Energy Act, as recently approved in the Commission's Order of December 12, 1979, supra, but it comports with 10 C.F.R. 5 50.'91 which requires that an amendment proceeding be guided by the same considerations which govern construction permit proceedings "to the extent applicable and appropriate".
Clearly, establishing a trifurcated system in place of the bifurcated one every time there is a request for an
' extension of a construction permit, as advocated by the Gary Petitioners, in order for the Board to consider all significant health and" safety or environmental issues that have arisen since the granting of the construction permit, is not appropriate under 5 50.91 without a conscious and explicit directive by either Con-gross or the Commission to modify the bifurcated system to that extent.
We have considered, but see no merit in, the objections to our applying 10 C.F.R. If 50.91, 50.34(a), and 50.35(a) to extension proceedings, expressed in the Staff's and NIPSCO's res-ponses to our Provisional Order.
While it is true (Staff Response to Provisional Order, p. 9) that the specific application of 550. 55 (b) to permit extension proceedings should prevail over the l
i more general provisions of those other sections, f 50.55(b) does not exclude a consideration of those other sections where matters are not specifa'Aly covered by i 50.55(b).
We see little in I 50.55(b) that offers us guidance in applying the Cook decision 1
to determine what matters are to abide the operating license stage.
Nor, can we agree with NIPSCO (Response to Provisional Order, pp. 7-13),that i 50.34(a) and 50.35(a) are " unhelpful" in identifying issues which should not appropriately a'oide the operating license proceeding because: 1) f 50.35(a) allows a construction per-mit applicant the complete freedom to defer to the operating license stage all aspects of the propcsed facility other than the principal
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' architectural and engineering criteria for the design and 2) under Cook, the only relevant standard is whether an "Lamediate" resolution of the issue is essential, which weuld imply that only a safety problem that might arise during construction should be considered.
As to the first point, it is our understanding (and undoubtedly the best practice) that when design plans are finalized by the time of the construction permit proceeding, they are ordinarily presented to the Staff and Board.
But even if they are not, the Board will attempt to resolve all safety issues arising from those designs to the extent capable of resolution at the proceeding, either when raised by intervenors or on the Board's own motion.
See River Bend, ALAB-444, supra, 6 N.R.C.,
- p. 766.
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As to the second point, we consider Permittee's concept of the Cook test much too narrow.
Had the appeal board intended to restrict an extension proceeding to safety problems during construction, it would not have assigned as an example to be con-sidered by a licensing board (Cook, supra, p. 420) issues that would cast serious doubt upon the ability of the applicant to " construct a safe facility" (rather than to " safely construct a facility,"as Permittee would have it).
Moreover, while Permittee recognizes (p. 7) that the Pro-visional Order established a "two-part test," its main criticism w
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. appears to be (pp.11-12) its erroneous assumption that the Board intends to entertain any issue that would be considered in a construc-tion permit proceeding.
However, only the-first part of the Board's two-part test requires that an issue not be hea d in an extension pro-ceeding if it would not be' ripe for determination were the construc-tion permit proceeding to be held at that time. 'Tha second part of the the test requires that, in order for the issue to be heard, the Board have strong reason to disregard.the presumption. inherent in the granting of the construction permit that there is a reasonable assurance that all safety issues would be resolved by the completion date of the construction.
b) The Short Pilings Issue Having discussed in general the standards that apply to hearing issues not directly related to the delay-in construction but that arise from the reasons asigned for the extension, we.now turn to the short pilings issue, which fits that category, to determine whether it should be heard.
The Permittee and Staff insist that the Commission has already determined in its Memorandum and Order of December 12, 1979, in Northern Public Service Co. (Bailly Generating Station, Nuclear 1), CLI-79-ll, supra, that the health and safety or environmental issues arising from the permittee's proposal to use short pilings rather than long pilings driven to bedrock must be deferred to the operating license proceeding, unless Staff, at
, its discretion, institutes proceedings pursuant to 10 C.F.R. 5 2.202.
We read that Order differently.
The Commission's Memorandum and Order was issued in response to petitions requesting hearings on the short pilings proposal on the grounds that Permittee's proposal to use short pilings required a construction permit amendment and represented a significant hazards consideration (which require an issuance of a Notice of Opportunity for Hearing).
In a split decision, the Commission disagreed by determining that the issue of pile design had been left unresolved at the time of the construction permit issuance, which meant tnat the short pilings proposal was not a change and did not require construction permit amendment.
Furthermore,' the Commission held that the type of pilings to be used was properly left t'or later resolution (i.e., the operating license proceeding) pursuant to 10 C.F.R. S 50.35(a), since further technical and design information was needed to complete the safety analysis.
That information could only be supplied af ter l
l tests for which the Permittee was required to have a construction permit and which would encompass a research program involving the I
sinking of test piles.
Finally, the Commission declined to offer a discretionary l
hearing on the short pilings plan on the ground that it saw no benefit in departing from the two-stage process of a mandatory t
. construction permit hearing and then an opportunity for hearing, available upon request at the operating license stage, in favor of an interim public hearing.
As we read the Commission's Memorandum and Order, it did not decide whether the short pilings proposal could be considered in a proceeding involving the pending requested extension, which the Commission never mentioned, and did not even suggest a policy with regard to hearing that matter in the extension proceeding.
It merely reaffirmed the licensing board's implicit determination that, as of the time of the construction permit proceeding, the design of the pilings and the health and safety or environmental issues arising therefrom should probably await the operating license stage.
Here, we are not concerned with the correctness of the licensing board's implicit determination that, at the time it conducted the construction permit proceeding, the issues arising from the design of the pilings should await the operating license proceeding.
Under Cook, our inquiry is directed towards determining whether, at the time of this extension proceeding, the short pilings issue should abide the operating license proceeding.
To begin that determination, we must first apply the standards that govern the question of which items are to abide the operating license proceeding discussed above.
The Board makes no determination at this point of whether the contentions regarding the short pilings issue will be accepted.
It, first, propounds
. these questions to the Staff, Permittee and those petitioners who have sufficient information and desire to respond, to be answered within ten (10) days after service.of the. Order:
(1) Are the Permittee's plans with regard to the pilings advanced to the stage where they would be considered at a construc-tion permit prnceeding?
If not, what remains further to be done to bring them to that stage?
(2) When does the Staff estimate it will complete its analysis of the short pilings proposal?
(3) What are the reasons (practical, legal or otherwise),
if any, why it would be preferable to defer the short pilings pro-posal to the operating license proceeding, rather than hear it at this proceeding before further construction commences?
(4) What'~ake the reasons if any, why the Board should or should not be reasonably assured, without hearing that issue in this proceeding, that all safety questions arising from the pro-posal to use short pilings will be resolved before the latest date mentioned in the request for the extension?
We recognize that this Board will be subject to the criticism of considering hearing the shortpilings issue contrary to the Commission's exercise of its discretion not to hear that issue in its December 12, 1979 Order.
Because of the different context within which this Board's determination must be made, we see no conf 31ct.
Following its holding that no construction
. permit amendment was necessary, the Commission decided not to exercise its discretion to initiate a wholly new proceeding in the nature of a show cause proceeding.
It left the Staff still free to bring such a proceeding in an exercise of the Staff's discre-tion.
(10 N.R.C., p. 743.)
Here, a proceeding has already been established because of the permittee's request for an extension and the Staff's issuance of a Notice of Opportunity for Hearing.
Furthermore, the legal nexus betwee'n the short pilings issue and this proceeding has been established in that the short pilings consideration was one reason given for the requested extension.
(See Cook, supra.)
The Commission's Order gives no indication of what the Commission would have -done had it been asked to consider the short f
pilings issue in the same context we have here of an established proceeding, a nexus between the issue and the subj ect matter of the proceeding, and the precedent of an appellate tribunal's direc-tion (Cook, supra, p. 420) to consider the " totality of the cir-cumstances" in deciding whether an issue such as this should be heard to protect the public interest.
2.
Matters Not Related to the Prolonged Period of Construction a.
In General A more novel question before the Board concerns the issues that do not arise from the reasons for the delay in construc-tion or are otherwise unrelated to the prolonged period of construction.
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. In Cook, supra, the intervenors apparently conceded (p. 421) that any design changes that did not contribute to the delay should not be explored in an extension proceeding. Here, the petitioners insist that a request for an extension automatically converts the bifurcated system into a trifurcated one, with the intermediate proceeding on the extension covering all significant health and safety or environmental issues that have arisen since the con-struction permit proceeding.
The Permittee and Staff would rule out from consideration any issue that is unconnected to the delay I
in the completion of construction.
In our Provisional Order, although we did not discern any such issues in the contentions raised, we hypothesized that issues that do not directly relate to the delay in construction and do not arise from the reasons assigned for the extension would be within the scope of this proceeding if the Board were to determine preliminarily that they must be heard in order to pro-tect the interests of the intervenors or the public.
We expressly disclaimed any intention of undermining the established two-stage process and, accordingly, recognized that our jurisdiction to hear matters not directly related to the delay or to the reasons assigned for the extension would be limited to matters compelling I
enough to warranc the Staff's initiating 5 2.202 order to show cause (whether or not it has done so).
. In its response to the Provisional Order, the Permittee objects (pp.18-22) to what it contends is the Board's enlargement of its own jurisdiction to consider issues beyond the scope of the hearing notice.
This argument, however, merely begs the issue, which is whether a consideration of compelling safety matters not directly related to the cause of the delay and the reasons assigned i
for the extension may be taken into account in determining if good cause has been shown for the requested extension, i.e., whether these matEers are within the scope of the hearing notice.
We do not find that the cases cited by Permittee (pp.19-20), to the effect that a licensing board has no independent authority to initiate an adjudicatory proceeding or expand its jurisdiction and authority to unrelated issues, illuminate the area of what falls within the scope of an extension proceeding.
We do not need the cases to instruct us that the Board cannot expand its own juris-diction to hear matters that are acknowledged to be beyond the,e scope of the proceeding in the first instance.
I The Permittee further argues (pp. 24-25) that, since a licensing board has no independent sources of information to equip it to determine whether a 5 2.202-cype hearing is warranted, and, since the licensing boards are not to prejudge the merits of fac-tual contentions under the principle of Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1) ALAB-590, 11 NRC 542 (1980), the Board's proposed standard
\\
- " threatens to destroy the two-stage licensing process."
As if to confirm Permittee's position that the Board's hypothesis might necessarily result in a full-scale trifurcated hearing process, contrary to the Board's intention and the Commission's reaffirma-tion of the two-stage process in its short pilings order of December 12, 1979, Porter County Chapter Petitioners' response to the Provisional Order suggests (p. 4) that the Board's refusal to accept a contention raising a safety matter, in the context of the Board's stated hypothesis, might be premature and improper.
Appar-ently, according to this reasoning, if the Board determines that compelling safety matters may be heard, even if unrelated to the reasons for the delay in construction, then it must admit any con-tention that merely alleges a compelling safety matter.
The Soard is not persuaded that, under Allens Creek, ALAB-590, supra, as Permittee and Petitioners imply, the discretion to hear a compelling safety matter in the context of an extension proceeding might foreclose the Board from refusing to admit a con-tention alleging a significant safety matter, where the petitioner has failed to establish the compelling nature of the safety matter a
prima facie matter to the Board's satisfaction to bring it within the scope of the proceeding.
In further support of hearing these issues, we can perceive of no reason why we should be permitted to use a commpn sense approach" (Cook, ALAB-129, supra, 6 AEC, p. 420) to consider issues
~~ '
o
. necessary to protect the public interest that cannot abide the operating license proceeding when they arise from the reasons assigned for the extension, but should not be permitted to use that approach if such compelling safety issues are otherwise present and apparent to the Board.
We note that the Commission did not re-affirm the two-stage process in its December 12, 1979 Order on short pilings tc the extent of an absolute refusal to initiate
. interim proceedings between the construction permit proceeding and l
the operating license proceeding.
Ir merely declined to exercise l
its discretion to establish such a hearing on the issue before it on the basis of the recommendations of the Staff and the ACRS that i
l the Permittee's decision to use short pilings did not constitute l
a construction permit anendment, and because of its further defer-ence (10 N.R.C.', p. 743) to the staff's discretion to institute proceedings pursuant to 10 C.F.R. $ 2.202 where substantial health and safety issues are raised.
On the other hand, we cannot gainsay Permittee's argu-ment that the Board's lack of independent sources of information and investigatory powers leaves it less well equipped than the Staff l
co make a preliminary judgment as to whether a compelling safety mat-j t.er exists.
For that reason, we recognize that any jurisdiction the Board may have to consider these matters is strictly limited to situations in which the petitioner has made a convincing prtsa me m.
.p2,.
y
29 -
facie showing that the safety matter alleged will not be satis-factorily resolved by the new completion date of the facility and, hence, is within the scope of an extension proceeding.
Whatever may be our views on this matter, we need not decide it here, for we find no issue in the contentions raised, not directly related to the delay in construction and not arising from the reasons assigned for the extension, that must be heard in advanceoftheoperatinglicensegroceedingtoprotecttheinterests of the intervenors or the publicT-We find that one prominent issue, involving emergency evacuation and siting, raised by the Gary Petitioners and Dr. Schultz as their sole contentions (and by other petitioners among.other issues), does not meet that stan-dard and will not be heard by this Board.
b.
Site Suitability The gist of the contentions regarding site suitability raised by the various petitioners is that, although site suitability was considered in the construction permit stage and the emergency evacuation plans will be considered in detail at the operating 2/
Since the Board does not find any issue not relating to the prolonged period of construction which must be heard here to protect the interests of the intervenors or public, it does not have to decide whether, if such an issue were present, it could be taken directly by the Board, as suggested above, or must first be certified to the Commission under 10 C.F.R. 5 2.758(d) for an exception to, or waiver of,10 C.F.R. S 50.55 (b).
Unless we later determine.to accept one of the newly-phrased con-tentions~ submitted by the Porter County Chapter and Illinois Peti-tioners after we issued the Provisional Order, we will leave it to a future Board faced directly with that situation to make a definitiv.e ruling.
O e
. license stage, significant changes have occurred in the N.R.C.'s siting requirements that should be considered at this hearing.
In particular, petitioners refe.: to the Report of the Siting Policy Task Force (NUREG-0625) which establishes six siting l
criteria and lists Bailly as the only nuclear plant operating or under construction that fails to meet all of them.
Petitioners contend that a consideration of evacuation plans at the operating l
license stage would be ineffectual because the site itself is unsuitable for a nuclear facility and no suitable evacuation plans could be devised.
They poinc to the very minimal investment in the plant at this point (which allegedly is only one percent com-pleted) as a justification for hearing that issue in this pro-ceeding, before the Pernittee recommences construction and makes it more difficult for the Commission to reconsider site suitability.
Petitioners have made a persuasive argument for recon-sidering the suitability of the Bailly site before further I
resources are committed to construction in the event that site suitability standards are changed.
In our Provisional Order, we recommend ed that.the Staff and Commission consider the Bailly site in particular when the new rules are formulated, as we were certain they l
would and as NUREG-0625 suggested they were doing.
However, in the absence of a final statement of policy by the Commission on new siting requirements which suggested the unsuitability of the Bailly site, we did not deem it appropriate to authorize a re-litigation i
- of a matter that was already determined by a licensing board in the construction permiu proceeding on standards in 10 C.F.R.,
Part 100 that had not yet been changed.
Since we issued our Provisional Order, Congress and the Commission have indicated their desire not to have new siting requirements applied to facilities authorized before a certain date, except by the Canaission on a case-by-case basis:
Public Law 96-295 (June 30, 1980), which authorizes the N.R.C.'s appropriations for fiscal year 1980 and directs the manner in which they can be spent, provides in Section 108 that regu-lations establishing demographic requirements for siting pro-mulgated under the authorization shall not apply to any faci-lity for which application for a construction permit was made on or before October 1, 1979; the Commission's May 30, 1980 Order in Consolidated Edi' son Company of New York, Inc.
(Indian Point, Unit No. 2) and Power Authority of the' State of New York (Indian Point, Unit 3), Docket Nos. 50-247 and 50-286, and its advance notice of rulemaking on the revision of reactor siting criteria, entitled " Modification of the Policy
. and Regulatory Practice Governing the Siting of Nuclear Power Reactors", dated July 23, 1980,~45 Fed. Reg. 50350 (July 29, 1980),
direct the Staff to review facilities situated in areas of high population density that already have construction permits, and submit a report to the Commission to be considered in the Commission's case-by-case determination on each site.
The Commission's issuances and Public Law 96-295 con-firm our d not to hear the siting issue in this pru-
_, u ceeding.
3.
Factors Within the Control of the Permittee A further disagreement exists.with regard to what may consitute " good cause" for the delay in completing the con-struction before the expiration date.
The State of Illinois Petitioner contends (Tr. 176-180; Memorandum of Illinois, dated April 9,1980) that only matters beyond the control of the Permittee can constitute good cause for the delay.
The Porter County Chapter Petitioners, while not contending that only factors beyond the control of the Permittee may consti-tute good cause for the delay in completion, argue (Tr. 164-171, l
177-178) that the question of whether the Permittee had con-trol over the reasons for the delay is relevant to determining whether good cause existed for the delay.
The Permittee
~
~v
. and Staff take the position that matters within the control of the Permittee can also constitute good cause for the delay in completion.
The Permittee (Memo, dated April 10, 1980, p. 7) cites Georgia Power Company (Alvin W. Vogtle, Units 1 and 2), LBP-77-2, 5 NRC 251, 273-275, aff'd., ALAB-375, 5 NRC 423 (1975),
as granting an extension of a construction permit even though the delay in construction was within the control of the applicant.
In that proceeding, the entire delay was attri-butable to the applicant's experiencing a shortage of con-ceruction funds due to inflation, an inability to sell secur-ities or bonds, and a delay in receiving increased rates from the Georgia Public Service Commission, which made it imprudent for the applicant to conticue construction.
Whether these conditions constitute matters within the control of the applicant is arguable.
Nor are we pursuaded by the Permittee's argument (Memo dated April 10, 1980, p. 3) 'that the wording of'10 C.F.R. S 50.55(b) requires a recognition of matters within the control of the licensee as constituting " good cause" in order to preclude an interpretation
. of the regulation that would make its words redundant or surplusage.
While, technically, the statement that the " Commission will recog-nize, among other things," (emphasis added) certain stated occur-rences and "other acts beyond the control of the permit holder",
would suggest an area within the " things" to be recognized, of acts within the control of the permit holder, we are not sure that that i
wordingis not in fact a redundancy arrived at through an overexercise of caution.
Since none of the stated occurrences appear t'o us to be matters within the control of the applicant, there might easily be inferred an intent that only matters beyond the control of the applicant be considered, notwithstanding the grammatical imperfections.
We do, however, incline towards the view that even matters within the control of the applicant may be considered as consti-tuting " good cause".
We do so only because we can think of no l
reason why Congress, in enacting Section 185 of the Atomic Safety Act, l
42 U.S.C. Section 2235, or the Commission, in promulgating 10 C.F.R. 5 50.55(b), would have intended to require the completion of a nuclear facility if good reason for delay were present, even for l
l matters within the control of the applicant.
We consider it espe-l l
cially unlikely that Congress or the Commission would have intended to discourage health or safety improvements that were not required 1
under the construction permit, which might entail some delay, by putting the applicant at the risk of losing its permit.
Stailarly, even though the need for power must be demonstrated at the construc-tion permit hearing, a changed situation could occur which might
. warrant a slowdown in construction.
In short, we cannot accept the position of the State of i
Illinois Petitioner that only matters beyond the control of the permittee may be considered as constituting good cause for the delay.
On the other hand, we must recognize what must be obvious, that reasons beyond the control of the permittee would generally be more weighty than reasons within its control.
We are not sure that the Permittee, Staff or the Porter County Chapter Petitioners have any real disagreement in that regard, however they may have expressed their respective positions at the conference or in their submissions.
O
~
. IV.
RULINGS ON INDIVIDUAL PETITIONS Porter County Chapter Petition As discussed later, Contentions 4 and 5 in Petitioners' supplemental petition, which relate to dewatering over an alleged prolonged period of time due to the requested extension, are within the scope of the proceeding and cannot be ruled out on the merits at this stage.
Furthermore, in the prior proceedings, the licensing boards had admitted these petitioners as having demon-strated the requisite standing.
In view of the fact that this Board has determined, above, that those who may allege injury in fact from the operation of the facility satisfy that requirement with regard to this extension proceeding, these Petitioners would appear to have met all the requirements.
However, in appa-rent reliance upon their being admitted in prior proceedings,
~
Petitioners did not file deatements from individual members demon-strating the members' geographic interests and the authorization l
for Petitioners to represent them in this proceeding.
Both the Staff (Tr. 12) and Permittee (Tr.18) obj ected to the failure of l
the organizational petitioners to file the individual statements, and the Board ordered (Tr. 17) that, considering that the member-ship of the organizations might have changed between the pro-ceedings, there be some renewal of the statements.
I l
l
-~
. Petitioners have since complied with the Board's request by submitting individual affidavits of one member of each of the three constituent organizations indicating residences of three, three and one-half,and nine miles from the proposed facility and
~
containing authorizations for Petitioners to represent them in this proceeding.
In its April 14, 1980 response, Permittee contends that the affidavits are insufficient because they do not identify a personal interest that might be affected by the proceeding or a.
potential injury that may be sustained as result of the proceeding.
The Board determines that these affidavits are sufficient.
Each of them refers to the use of the Indiana Dunes National Lake-shore and its resources, the adj acent waters of Lake Michigan, and the public highways passing within a mile of the Bailly site.
These affidavits must be read in conjunction with the underlying petition and supplemental petition of Petitioners which alleged potential injuries to each of these interests from the operation of the plant or from construction activities, either of which are sufficient to confer standing.
The Porter County Chapter Petitioners have satisfied all of its prerequisites and are admitted.
Anna and George Grabowski These Petitioners reside in Cedar Lake, Indiana, approxi -
mately 25 miles from the Bailly site, within the geographical zone of interest.
In their second supplemental petition, they contend l
that the dewatering due to continued construction would injure them because of their use of the Indiana Dunes National Lakeshore
. for recreation.
The Permittee assumes (Response, dated April 14, 1980, p. 20), as does the Board, that this contention alleges an incremental injury based on the alleged extended period of de-watering, as discussed during the special prehearing conference.
On that basis, the Permittee does not object to,the admission of the Grabowskis and the Board admits them.
Local 1010 of the United Steelworkers of America Subsequent to the special prehearing conference, Peti-tiener submitted the affidavit of Joe Franz, who was a representa-tive of the Union during the second day of the conference, which indicated his residence approximately 8 miles from the proposed site and his authorization to the Union to represent him in this
~
proceeding.
In its April 14, 1980 response (p.14), Permittee concedes that the affidavit satisfies the technical organizational requirements and establishes the Union's standing to intervene based upon an allagation in the Franz affidavit regarding harm to the interests of Mr. Franz from "further site-dewatering."
How-(
ever, Permieces continues to object to admitting the Petitioner on the ground that the contentions which it seeks to raise are outside of the scope of this proceeding.
l l
Permittee, however, reads the affidavit and attached supplemental statement of Mr. Franz in isolation from the conten-tions stated f.n Local 1010's pe.tition.
Contention 10-B of the L
petition contends, inter alia, that the impact of the construction l
i l
l l
l
' of the Bailly plant will exacerbate the harm currently being caused the Indiana Dunes National Lakeshore from the operation of the fos-sil fuel plant on the same site, and also refers to recommendations for the improvement of the monitoring program for the Bailly con-struction to mitigate other damage done to the Lakeshore.
Reading together all of the documents submitted by Petitioner, we must conclude that the Petitioner has attempted to fashion, out of its originally-submitted, broad Contention 10-B, a narrow contention limited to the incremental effects of the further period of site-dewatering, pursuant to the suggestions at the prehearing conference that such contention would be admissible.
As so limited, we accept that contention and admit the Petitioner.
It may be, however, as suggested in ?ermittee's response to our Provisional Order (pp. 35-38), that Petitioner did not intend to transform Contention 10-B into a narrow contention limited to site dewatering, so as to afford a firm basis for being admitted to this proceeding.
We note that, if Petitioner has no interest in pursuing actively that limited contention, which will be liti-gated in any event by other admitted organizational petitioners, the Board's admitting that contention will effectively foreclose Petitioner from presently appealing our denial of its other con-tentions (if the short pilings issue is not admitted), as discussed later.
, Petitioner is given 10 days from the service of this Order to indicate that it did not intend to offer a contention limited to dewatering during a prolonged construction period, if that is the situation.
Gary Petitioners Prior to the special prehearing conference, Petitioners submitted unexecuted affidavits from members of 4 of the 5 consti-tuent organizations, that were executed and resubmittad after the conference.
In its April 14, 1980 response, Permittee concedes that the affidavits satisfy the technical organizational require-ments of standing, and the' Board agree's.
As we have stated above, although the Staff and Permittee do not agree, we consider the potential injury from the operation of the plant as satisfying the injury in fact requirements for standing in this proceeding.
However, the Gary Petitioners have raised only one e,
concention, regarding evacuation planning and alleged site unsuita-bility.
As discussed above, emergency evacuation planning is a matter to be considered at the operating license proceeding.
To the extent that allegations are made regarding site unsuitability because of the inability to devise satisfactory evacuation plans, the Commission has taken it upon itself to consider all reactors under construction in areas of high population density,which removes this issue from consideration in this proceeding.
. Consequently, having failed to advance an admissible contention, Petitioners cannot be' admitted as a party under 10 C.F.R. 5 2.714.
One of the organizations comprising the Gary Petitioners, as stated in the petition for leave to intervene, is the City of Gary, Indiana.
As indicated by the attorney for the Gary Peti-tioners at the conference (Tr. 62), an interested municipality may participate in the proceeding under 10 C.F.R. I 2.715(c).
Accordingly, the Board directed that, within 15 days of the filing of our Provisional Order, the City of Gary indicate whether it desires to participate under 5 2.715(c) notwithstanding that its sole contention, regarding emergency evacuation and siting, is not admitted.
We have now received the response, which indicates that the City of Gary does not desire to be admitted as an interested municipality.
The Board, therefore, denies the petition to intervene.
Dr. George Schultz l
According to Dr. Schultz' petition, he lives within 10 miles of the Bailly site.
He is also employed as a clinical psychologist at the Indiana State prison, located within 10 miles of the site, and petitions the Board for intervention because of his concern that there can be no effective evacuation of the prison in the event of a serious nuclear accident.
m
-nn
..n.-
^
^
^
^
. Without question to the Board, Dr. Schultz has established his geographic zone of interest and potential injury in fact to intervene.
However, for the same reason stated with regard to the Gary Petitioners, we cannot accept his sole contention relating to emergency evacuation and site unsuitability as being within the scope of the proceeding.
His petition for intervention is denied.
l The State of Illinois The State of Illinois is represented by the Attorney General's Office and petitioned for intervention as a party under the 10 C.F.R. 5 2.714 and as an Interested State under 10 C.F.R.
$ 2.715(c).- Prior to the special prehearing conference, the Staff and Permittee obj ected to granting party status to Illinois under 5 2.714, although they did not object to the State's participation under 5 2.715(c) if any of the other petitioners were granted i
intervention.
In its April 14, 1980 response to various filings, filed after the conference, Permittee agreed to the State's admis-sion under 5 2.714, presumably because of its Contention 3, relating to site-dewatering, as discussed later.
The Board agrees to the l
admission of the State of Illinois as a party under 10 C.F.R. $ 2.714 l
and as an Interested State under 10 C.F.R. 5 2.715(c).
The Lake Michigan Federation l
Petiticner filed a timely petition explaining its member-l ship of over 700 individuals and over 100 civic and environmental organizations, and their interest in the use and enjoyment of many 2
i l
l l
. of the natural landmarks near the Bailly site (Indiana Dunes National Lakeshore, Cowles Bog National Landmark, Lake Michigan, etc.).
The Petition, however, did not raise any aspect of the proceeding as to which the Petitioner wished to intervene, stating only that the Petitioner wished to intervene "as to all respects l
of the subj ect matter of the proceeding."
(Petition, 1 5.)
No supplemental petition was filed, as required by 10 C.F.R. 5 2.714(b) and the Board's Order of February 7, 1980, at least 15 days prior to the special prehearing conference, and nothing further was heard from Petitioner until its counsel appeared at the special prehearing conference.
On the second day of the conference when individual contentions were discussed, counsel had absented himself but was replaced by an individual member of the Federation who sought to present oral contentions, since no written ones had been prepared.
(Tr. 172-173.)
The Board ordered (Tr.175) that no oral conten-
" tions be heard at the proceeding but that Petitioner could submit a late-filed supplemental petition with contentions, together with l
I a\\ statement of reasons why the Board should exercise its discre-tion in accepting those contentions.
Subsequent to the prehearing conference, Petitioner sub-mitted the affidavit of an individual member, authorizing the Federation to represent his interest in this proceeding, which he indicated resided in his utilization of Lake Michigan as a sailor, swimmer and fisherman.
He claimed that his health and safety would
. be Jeopardized in the event that the waters of Lake Michigan were adversely impacted by the construction of the plant at the Bailly site.
On the basis of our discussion, above, regarding potential injury-in-fact, with which the Permittee and Staff disagree, we accept the affidavit as satisfying the requirements of standing.
l i
At the same time, Petitioner also submitted its first supplement to the petition containing its " contentions", together with a motion to grant additional time for them to be filed (i.e.,
accept them out of time).
These contentions consisted of a state-ment adopting Contention 4 of the State of Illinois and all of the contentions except Contention 2 of the Porter County Chapter Petitioners.
Petitioner also requested that an additional conten-tion be considered, which amounted to an argument in favor of rehearing all of the issues already decided in the construction permit proceeding on the ground that the five-year period of the f
original construction permit should be the limit for which the con-struction permit findings are considered as res judicata or collateral estoppel.
As indicated at the conference (Tr. 175) and as required by 10 C.F.R. 5 2.714(b), a granting of additional time for filing these contentions must be based upon a balancing of the factors listed in 10 C.F.R. 5 2. 714(a) (1).
On balancing these five factors, as listed below, the Board determines that Petitioner should not be admitted _.
These factors are:
l
. (1) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's parti-cipation 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 the petitioner's partici-pation will broaden the issuas or delay the proceeding."
As good cause for its failure to file on time,. Petitioner states that its sole attorney and administrator underwent surgery during Janu'ry, February and March, requiring substantial absences from the office and shortened working days, and further states that a major cause of the delay was the over 250 hours0.00289 days <br />0.0694 hours <br />4.133598e-4 weeks <br />9.5125e-5 months <br /> spent by its staff in analyzing the dewatering issue necessary to present the In light of the fact that'fthe attorney was not totally contentions.
l incapacitated, we cannot consider his medical condition as good cause for failing to submit the contentions on time, since he was apparently able to file a timely request for an extension of time (which he chose not to), the granting of which would have permitted a timely filing of contentions.
Furthermore, although Petitioner alleges spending over 250 hours0.00289 days <br />0.0694 hours <br />4.133598e-4 weeks <br />9.5125e-5 months <br /> on the issue of dewatering, its attempt to adopt the dewatering contentions of other petitioners without any further specificity or elaboration casts some doubt on its dedication to this proceeding because of its having expended
46 -
those hours in analyzing the problem without allocating a small portion of that time for formulating the contentions and presenting them in a timely fashion as required by the rules.
Although the Federation does not address the question of whether other means are available to protect its interest, it is clear that only by its participating in this proceeding would Petitioner be heard on the issues before the Board.
In view of the fact that Petitioner's foremost interest relates to construction dewatering, which the Board has agreed to hear, this factor weighs heavily in favor of the Fereration's participation in this proceeding.
Petitioner also presents a persuasive argument for its abi1Ity to assist in developing a sound record by claiming to have
" engineering and natural science capacity to work with the dewatering issue and to bring substantial and credible information to the Board l
for decision."
It claims further that its " Lake Michigan Science Task Force has the skills of biolgists, chemists and others who t
provide technical assistance to the Staff and public."
- However, Petitioner has not provided any of the specifics with regard to the qualifications of members of its staff or task force or any of the results of its claimed concentrated analysis of the dewatering issue.
Even if its claimed expertise were substantiated, it appears that Petitioner, as an independent party in this proceeding, is unable to communicate any of its expertise to the Board.
The only role that the Board can perceive for the Federation that would e
_.47 -
assist in developing a sound record is for the Federation to render technical assistance to one of the admitted parties to the proceeding
--not as a consolidated party, but as a technical advisor.
We do not profess any insight into which party would benefit the most from having Petitioner's assistance.
l It appears that the Federation's interests will be fully represented by existing parties, without Petitioner's intervention:
Petitioner has merely attempted to adopt the contentions presented by other parties without any further elaboration or specificity; Ebtitioner's. interest in the subject matter of the proceeding does not appear to be any more extensive or of a different kind than that of the other petitioners; and the performance of counsel for the other petitioners in presenting the common interest of the petitioners to the Board has until now been commendable and has far surpassed that of the Federation's representatives.
There is no reason to
~
believe that the participation of the Federation as a party would add anything to the representation of Petitioner's interests by the other intervenors.
1 In view of the Federation's mere adoption of the conten-tions of other parties, its participation would not be expected to broaden the issues.
Even though Petitioner has not fulfilled its requirements under the regulations and prior Board orders in a timely fashion, its delay has so far not affected the pace of the proceedings and it is not anticipated that Petitioner 3 s. demonstrated
. lack of diligence would delay the proceedings in the future.
How-aver, since only that factor and the factor of the unavailability of any other means whereby Petitioner's interests will be protected weigh in Petitioner's favor, and all of the other factors weigh heavily against Petitioner, the Board sees no advantage to Peti-tioner's participation in this proceeding as a party.
Petitioner also suggests (First Supplement to Petition, pp. 1, 4) that it should be considered as having adopted Porter County Chapter Petitioners' Contention 8 since there were no objec-tions to its orally adopting that contention at Tr. 269.
We do not accept that proposition.
The Board had already ruled (Tr. 175) that it would not accept any oral contentions at the conference and, in that context, it was not necessary for objections to be interposed each time the Federation embraced one of the other petitioners' contentions in furthering the discussion.
Nor, do we even think it likely that any of the participants considered the Federation's statement at Tr. 269 as offering the contention at that point, in advance of its prospective written submission.
- 49.-
V.
RULINGS ON CONTENTIONS Although we had not ruled on specific contentions in our Provisional Order, except for the site suitability issue, the short pilings issue and ash pond seepage (discussed below), the Board had hoped to rule on the a6aissibility of each contention in this Order.
However, the Porter County Chapter Petitioners' Contention 12 (("PCCP 12") and the opening paragraph of the State of Illinois' Supplemental Petition attempted to incorporate by reference as contentions in this proceeding unspecified issues that had been raised in documents filed with the N.R.C. during 1979, pursuant to requests for hearings in other proceedings.
Petitioners contended that there was insufficient time given them to distill specific contentions from these documents for presentation to the Board in their supplemental petitions or at 3/
the special prehearing conference.-~
These prior documents were not submitted with the petitions or supplemental petitions and had not yet been received by the Board.
Petitioners claimed that these unspecified contentions should be considered as having been filed on time.
The Permittee obj ected (Tr. 326-327) on the ground that l
l this incorporation by reference of documents that do not contain a formulation of specific contentions does not achieve the specifi-city required by 10 C.F.R. f 2.714 and that there exists ample
--3/
The full discussion regarding the propriety'of raising. con-tions by incorporation by reference is found at Tr. 324-336.
l
. authority, Tennessee Valley Authority (Brown's Ferry Nuclear Plant, Units 1 and 2), LBP-76-10, 3 NRC 209, Feb. 16 (1976); Alabama Power Cat. (Allen R. Barton Nuclear Plant, Units 1, 2, 3 and 4), LBP-75-32, 1 NRC 612, June 15 (1975), for not accepting contentions based upon incorporating documents by reference.
Without knowin~g the nature of the documents, their scope, l
and the voluminousness of the contentions that could be fashioned therefrom, the Board (Tr. 329-335) declined to accept those conten-tions at that time as timely filed.
It ordered, as proposed by counsel for the participants, that they confer with regard to the wording of the " contentions" that might be contained in these documents.
~
In our Provisional Order, we clarified the Board's posi-tion.
We ordered that all contentions that petitioners argue should be treated as timely filed because they were incorporated by reference in the supplemental petitions should be filed within 25 days after service of the Provisional Order.
We indicated that we would review these reworded contentions if they were filed within that time limit to determine whether they should be treated as timely-filed contentions that could be ruled upon with regard to admissibility without further submissions in support of, or opposition to, the Board's accepting the contentions at its dis-cretion under the test provided by 10 C.F.R. f 2.714(a) (1).
. We have since been notified that the parties have met and have not reached any agreement with regard to the wording of contentions, and have received, within the 25-day time limit, specific contentions based upon the documents incorporated by reference formulated by the Porter County Chapter Petitioners and adopted also by the State of Illinois.
Taking into account the full circumstances, including the short time (approximately two weeks) between service of the Order Setting the Prehearing Conference and the date on which the supplemental petitions were due, the promptly filed Motion for Continuance of the Conference based upon the Petitioners' attorneys having other obligations, the diligence and thoroughness with which all other matters have been handled by Petitiloners, and the complexity of the newly-filed contentions, the Board determines that the incorporation by reference constituted a substantial effort to file timely contentions and will be accepted as such by the Board.
Obviously, these circumstances would also amount to a showir.g of good cause for not having filed these specific contentions before the prehearing conference but, because we are not viewing our acceptance of the contentions (as to timeliness) as a discretionary matter, we need not discuss the other four elements in the 5 2.714(a)(1) test.
In viewing these newly-filed contentions we note that, in general, they appear to be matters not directly related to the l
. requested extension, matters that are not fundamental to the con-struction of the facility (as are the issues of siting and founda-tion pilings), and/or matters that would not appropriately be heard before the operating license proceeding under any circum-stance.
However, in the interests of fairness to all the parties (even though, if we assume that these contentions were actually filed before the prehearing conference by their incorporation by reference Petitioners had opportunity to speak in their favor at the prehearing), we will schedule further filings with regard to the admissibility of these contentions.
The parties have 15 days after service of this Order to submit arguments in support of, or opposition to, the admissibility of these newly-filed conten-tions.
Within ten days after the service of these submissions, the parties may reply to them.
The Board will now rule on the other contentions.
PCCP 1, 3: Illinois 2 Porter County Chapter Petitioners' Contentions 1 and 3, and the State of Illinois' Contention A assert that the reasons given by NIPSCO for the delay in completing construction were not the real reasons for the delay; the real reasons do not constitute good cause for the delay; and, with regard to the reasons that constitute good cause, the period of extension is unreasonably long.
To the extent of those assertions, the Staff (Tr. 186) and l
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Permittee (Tr. 191, 197-198) do not object to admissibility.
How-ever, included in the contentions is an assertion that only matters beyond the control of the Permittee may constitute good cause for the delay in construction and the suggestion that the Board must look into the merits of every matter, the mere presence of which may have contributed to the delay.
As an example, PCCP 3 seeks to liti ate all TMI-related issues because the Staff's allocation 6
of resources to TMI-related project, may have delayed its review of issues arising during the construction of Bailly and contributed to the delay in construction.
As discussed above, the Board has already determined that matters within the control of the Permittee may constitute good cause for the delay in construction, although they may not be as weighty as reasons beyond Permittee's control.
Furthermore, the Board has reserved judgment, pending receipt of answers to questions propounded in this Order, on the admissibility of the short pilings issue, one of the matters, the presence of which may have contributed to the delay in construction.
Except for that short pilings issue, the Board admits these contentions only to the extent that they assert that the reasons for the delay are other than offered by Permittee, that the actual reasons do not constitute good cause for the extension, and that the period of extension requested is unreasonable.
Although discovery can now proceed on these contentions as so Ibnited, we will require that e
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. the facts underlying these assertions be specified before we go to hearing.
PCCP 2 In its August 31, 1979. letter to the Director of Nuclear j
Reactor Regulation, NIPSCO requested that the construction permit "should be extended to December 1, 1987, or 98 months after the N.R.C. concurs in resumption of pile placement."
The contention asserts that the request of an extension in the alternative, not to a specific date, but for a period of time, is improper under Section 185 of the Atomic Energy Act and 10 C.F.R. 5 50.55(b). At the conference (Tr. 189-190), Permittee resolved that issue by indicating that the reference to 98 months after pile placement was merely explanatory of the requested extension to December 1, 1987, the date certain required by the statute and regulation. With that clarification, the contention is no longer viable and is not admitted.
4 PCCP 4, ~ 5; ~ Illinois 3 : Grabowskis' Dewatering (2nd Supp.' Pet.,
- p. 7)
These contentions assert that the granting of the extension would have adverse effects because it would prolong the period of dewatering necessary in order to complete construction over the prolonged period of time.
During the discussion (Tr. 203-230), the Porter County Chapter Petitioners and the State of Illinois unequivocally represented that they had no intention of relitigating matters covered in the prior proceedings, and that all that would
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be considered under these contentions are the incremental effects on the environment from the additional period of dewatering.
With thosa limitations, the Staff and Permictee indicated that they had no objection to the admissibility of these contentions.
(Tr. 203, 214). The Board admits these contentions as so limited and, in further clarification, excludes from consideration in this proceeding any effect from-the prolonged period of construction that was considered.co be an effect of the initially-authorized construction and determined to be de-minimis; Porter County Chapter Petitioners allege (Tr. 221-227) that one difference between dewatering during the extended period and during the original period considered at the construction permit proceeding was the contract entered into by NIPSCO and the U.S. Department of Interior to seal ash ponds on the Sailly site to prevent seepage from those ash ponds estimated to approximate 1,000,000 gallons of water per day.
Petitioners contend that this would eliminate the recharging effect of the seepage on the dewatering that was taken into account by the licensing board at the construction permit hearing.
Permittee contends (Tr. 221-222) that the issue of ash pond seepage had already been resolved at the construction permit proceeding by the Board's not taking any recharging impact of the seepage into account in the first instance so that the sealing of ponds prior to the extended construction period would not alter the factual context in which that prior
. board's determination had been made.
The Board requested (Tr. 223, 227-230) that the parties brief this issue involving ash pond seepage to aid the Board in determining whether that issue could be disposed of at this stage in the proceeding.
If,in fact,-the prior licensing board had clearly resolved this issue the Petitioners would be collaterally estopped from relitigating this issue, as they concede.
In our Provisional Order, we determined that the question of ash pond seepage could not be resolved at this stage in the pro-ceeding.
We referred to the construction permit board's discussion of dewatering and ash pond seepage at Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), LBP-74-19, 7 AEC 557, 589-591 (1974) to determine whether the discussion was disposi-i tive of the issue, and decided that it was not.
We referred to the briefs on this issue submitted by the Staff and Permittee in support of resolving this issue at this stage, an'd noted that they relied not only upon the face of the licensing board's decision, but also upon the underlying record in the proceeding.
Then, on the basis of Houston Lighting and Power Co. (Allens Creek Ncclear Generating Station, Unit 1), ALAB-590,11 NRC 542 (1980) and Mississippi Power and Light Co.
(Grand Gulf Nuclear Station, Units 1 and 2),
ALAB-130, 6 AEC 423, 424 (1973), we concluded that, since we could not resolve the matter only by referring to the face of the prior decision, we could not resolve the issue in advance of motions for I
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summary disposition or evidentiary hearings that might be necessary to formally bring the record of the prior proceeding before this Board.
In its response to our Provisional Order, pp. 27-28, Per-mittee points out (correctly, we agree) that both the initial decision and the hearing transcript of the prior proceeding are part of the official record, and that the Board may rely upon all parts of that official record without violating the principals of Allens Creek, ALAB-590, supra.
If this Board can establish from viewing the entire record in the prior proceeding that the prior Board had resolved an issue, that issue should be considered as having been resolved for purposes of this proceeding under the doctrine of res judicata or collateral estoppel.
With that in mind, we reviewed the prior record more carefully and reread the briefs submitted by the parties here.
We note that the Staff has changed its position, although that change is not acknowledged.
While it initially concluded (Staff brief, dated 4/10/80, p. 5) that the " interrelationship between ash pond seepage and construction dewatering ***was fully and finally decided during the Bailly construction permit hearings and is not a proper subj ect for relitigation in this matter", it now (Staff Response to Provisional Order, dated June 24, 1980, p. 11) asserts that collateral estoppel applies only to an issue relating to the g
effect of continuing ash pond seepage on dewatering.
But, the
. Staff continues, "To the extent that construction dewatering con-tinues following the elimination of the effects of ash pond seepage, this represents a litigable issue in this proceeding'."
Considering
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that Petitioners intend only to raise the issue of ash pond seepage in the context of the absence of seepage being a changed circum-stance from what was taken into account by the prior board, the Staff, apparently, now supports Petitioners' position that that issue should be heard.
Whatever may be the respective positions of the parties, it is the record in the prior proceeding that must govern the dis-posit. ion of the ash pond seepage issue.
Reading the portions of the record cited to us by the Permittee, it does appear that Per-mittee's experts represented to the prior board that the recharging effect of the ash pond seepage was not taken into account in their analysis, which made the analysis more conservative than the true conditions (testimony of Annambhatla and Brissette, following CP. Tr. p.10, 335, pp. 5-6), and that the board accepted their analysis.
To the extent, therefore, that the analysis did eliminate the recharging effect of ash pond seepage, Petitioners' assertion that the sealing of the ash pond brings changed circumstances before this Board with regard to the extended period of construction, can-not be accepted.
However, notwithstanding the assurances of those experts, we cannot be satisfied merely from their statements that the full recharging effect of ash pond seepage was eliminated from their calculations.
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We will permit Petitioners to attempt to establish that the calculations relied upon in the prior proceeding did not fully eliminate the recharging effect of the ash pond seepage and that, if they did not the elimination of the recharging effect of ash pond seepage over the prolonged period of construction would create an adverse environmental impact.
As so limited, we l
admit the ash pond seepage aspect of these contentions.
PCCP 6 In this contention, the Porter County Chapter Petitioners allege that two of the reasons why the construction of Bailly was not completed by the expiration date in the construction permit were the decrease in the need for power and the increase in the estimated cost of building the proposed plant, which Petitioners allege do not constitute " good cause" for the extension of the permit.
To the extent that the contention suggests reasons other than those given by Permittee for the delay in construction, the contention is unnecessary and duplicative of PCCP 1, 3 and Illinois 2, which the Board has adaitted so as to allow Petitioners to dis-cover the actual reasons for the delay in completing construction and offer those reasons as not constituting good cause for the extension.
To the extent that PCCP 6 goes further and attempts to litigate the issues of need for power and financial capability that were decided at the construction permit proceeding, the contention is not admissible.
Since the admissible portion of this contention l
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. is already covered by admitted prior contentions, Contention 6 is noc admitted.
PCCP 7; Illinois 5 These contentions bring into question the alleged lack of technical competence of Permittee, its contractors and its sub-contractors, as allegedly demonstrated by the failure to complete Bailly by the expiration date of the construction permit.
To the extent that Petitioners seek to establish that the delay was attributable to technical incompetence which brings into ques-tion Permittee's ability to construct a safe facility, we admit the contentions as falling within the scope of this proceeding as deliniated by Cook, ALAB 129, supra.
To the extent, however, Petitioners seek to litigate any alleged lack of technical ability not actually manifested in the delay in construction, that matter has already been determined in the construction permit proceeding
' and is not admissible here.
We specifically do not admit the portion of Illinois 5 which requires that NIPSCO and its contractors prove in this proceeding that they are technically competent in order to receive the extension.
As limited above, these contentions are admitted.
l PCCP 8 Illinois 7A and 7B; Local 1010 2 l
These contentions raise the short pilings issue, discussed above.
We will determine whether to admit these contentions after,
. we receive responses to the questions we posed.
PCCP 9; Illinois 4: Local'1010 4 These contentions attempt to bring TMI-related ar.d other Class 9 accidents into this litigation.
Petitioners have not demonstrated any nexus between those types of occurrences and the requested extension, or any special circumstances that would require considering those types of occurrences in this proceeding.
The contentions are_ denied.
r PCCP 10; Illinois 1 These contentions seek to compel the Staff to prepare an Environmental Impact Statement with regard to the construction permit extension.
It was agreed by the parties (Tr. 302-305) that these contentions would be deferred until the Staff completes its evaluation and presents it in this proceeding in whatever manner it deems appropriate.
At that point, Petitioners can raise what-ever contentions are appropriate to that evaluation.
PCCP 11 This contention consists of Petitioners' statement on the scope of the proceeding.
No specific issues are raised.
The Board has ruled on the scope of the proceeding, above.
This con-cention would serve no further purpose, and is denied.
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' PCCP 12 This contention incorporated by reference documents previously filed with the N.R.C. discussed above.
Specific con-tentions based upon these documents have now been received and will be ruled on after the parties have had their opportunity to comment, as provided above.
t Unnumbered Contentions Raised in' the'PCCP Petition 1.
Significant Hazards Consideration.
In their petition to intervene, the Porter County Chapter Petitioners questioned whether the Commission's finding in the Notice of Opportunity for Hearing that the proposed amendment Joes not involve a significant hazards consideration was justifiable, correct, or supportable.
In view of the fact that the Commission has exercised its discretion to provide the opportunity for a hearing prior to the issuance of the proposed amendment, the deter-mination of whether the action involves a significant hazards con-sideration is Lamaterial.
Furthermore, since Petitioners' only concern was that the Staff might take action on the application before the Board decided whether it would initiate a hearing, and the Staff represented that it would not (Tr. 342), the issue has been satisfactorily resolved.
2.
Timeliness and Sufficiency of the Amendment Applications.
Petitioners question whether the application for the extension dated February 7, 1979, and August 31, 1979, were " timely 4--.
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and sufficient" within the meaning of the Administrative Procedure Act, 5 U.S.C. 5 558(c).
The construction permit was due to expire on September 1, 1979, and Permittee filed an application on February 7, 1979, for an extension of the construction completion date to September 1, 1985.
That application was docketed by the NRC Staff, pursuant to 10 C.F.R. 5 2.109, which provides that, if an application for a renewal of a license'is filed at least 30 days prior to the expiration of an existing license, the existing license will not be deemed to have expired until the application has been finally determined.
Subsequently, on August 31, 1979, Permittee filed an amendment to its February 7, 1979 request for the purpose.of extending that completion date until December 1, 1987.
That amendment of application was duly docketed by the N.R.C. Staff.
At the prehearing conference (Tr. 349-350),. it was dis-closed that Petitioner's basis for its contention was Permittee's filing of the amendment on August 31, 1979, only one day before the expiration of the construction permit, rather than at least 30 days before, as provided by 5 2.109.
Petitioner construes the August 31, 1979 filing as having the twofold effect of making the February 7, 1979 filing incomplete and, then, completing it after the expiration of the time limit specified by 5 2.109.
We rule that contention out on the merics and because it misapplies the Administrative Procedure Act, The February 7, o
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. 1979 application for extension was sufficient by itself, and we do not understand Petitioner to contend to the contrary.
We can-not accept tha position that a later attempt to amend that suf-ficient application should have the effect of rendering that original application insufficient,'unless the proposed amend-ment discloses an existing insufficiency - a situation not present here, nor even alleged.
Furthermore, we would rule out on the merits any attack on the August 31, 1979 application amendment, since it was filed at least 30 days before the expiration of the latest construction completion date requested in the February 7, 1979 application (to September 1,1985), and, in any event, it appears unlikely that any action on the February 21, 1979 application could have resulted in the granting of an extension to a date before September 30, 1979.
As to the application of the Administrative Procedure Act, we agree with Permittee and the Staff (Tr. 346-349) that the Staff is charged with the responsibility for accepting the exten-sion application for docketing, and that it is outside of the juris-diction of the Board to review the correctness of the decision to docket the application as being timely and sufficient - at least in the absence of any allegation suggesting something in the nature of fraud in the filing or docketing.
Petitioner misconstrues the purpose of 5 U.S.C. 5 558(c), as affording a basis to attack a renewal application on the ground of being untimely or insufficient.
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. Rather, the thrust of the section is to protect applicants and licensees by requiring the agency to afford them the appropriate administrative procedures once the renewal application has been timely filed.
S ee County o f Sullivan, N. Y. vs. CAS, 436 F. 2nd 1096,1099 (2nd Cir.1971); Attorney General's Manual on the Administrative Procedure Act, 91-92 (1947).
It would be grossly unfair to adopt a system under which the applicant would be assured of che timeliness and sufficiency of its application by the agency's docketing the application and, after the time-for filing has expired, be told that the timeliness and sufficiency are still open to ques-tion - unless there is an allegation of fraud involved in the filing or docketing.
The contention is denied.
Illinois 6; Local 1010 13 These contentions seek to bring the issue of site unsuit-ability into this proceeding.
For the reasons stated above, with regard to the sole contentions of the Gary Petitioners end Dr. Schultz, the contentions are denied.
Illinois 7C; Local 1010 1 These contentions alleging the inadequacy of the Mark II containment, unlike the siting and short pilings issues which are l
matters preliminary to constr':: tion, appear to be construction design issues of the type that 10 C.F.R. S 50.35(a) envisions will be resolved
% A a during construction and reviewed at the operating licensing pro-ceeding.
The propriety of raising this issue before the operating license proceeding has already been litigated with regard to this facility in Porter County Chapter vs N.R.C., 606 F.2nd 1363 (D.C.
Cir., 1979), in the context of the Staff's denial of petitions under 10 C.F.R. $ 2.206 for the revocation of the construction permit.
In upholding the Director's denial of the petitions, the Court of Appeals accepted his reliance upon the continuing generic efforts by the Staff to ensure the resolution of the problem as supporting his being reasonably assured of a satisfactory resolu-tion of the safety issue during construction.
Petitioners, here, have raised no matters that would constitute a prima facie showing i
that the generic efforts listed in the Circuit Court's opinion (p. 1370, fn. 17) would not amount to the reasonable assurance required under 10 C.F.R. I 50.35(a).
These contentions are denied'.
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., ' VI. ~ WAIVER OF 10 C.F.R. S' '50'. 5 5 (b)
Together with their petitions for leave to intervene, the State of Illinois and Porter County Chapter Petitoners have filed petitions for waiver of, or exception to, 10 C.F.R.
S 50.55(b) in the event thaIt that regulation is interpreted as limiting a " good cause" proceeding to the reasons why construc-tion was not completed oy the latest completion date in the' construction permit.
They contend that the application of f 50.55(b) in that manner would not serve the purpose for which the rule was adopted, to wit, implementing Section 185 of the Atomic Energy Act, 42 U.S.C. S 2235.
.To the extent that we have discerned the Commission's intent in promulgating the regulation, we have applied the regulation to this proceeding as broadly as that intent and can find no ground for certifying the petitions for waiver of the regulation to the Commission.
Stated another way, the Board does not find that petitioners have made a prima facie showing that any contention raised that is not related to the delay in construction should be heard in order to further the purpose for which 10 C.F.R.
S 50.55(b) was adopted.
Had petitioners made such a showing, the Board would have admitted that contention as falling within i
the scope.of 5 50.55(b) (which the Board finds as broad as l
4
, Section 185 of the Atomic Energy Act) without having to certify 4/
the matter to the Comission under 5 2.758(d)-
The petitions for waiver of, or exception to, 10 C.F.R. 5 50.55(b)' are ' denied.
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See, however, fn. 2, above.
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.. VII.
FURTHER SCHEDULING A. Discovery shall commence forthwith on the admitted contentions.
B. Objections to this Order may be filed within the time limits prescribed by 10 C.F.R. 5 2.751a(d):
5 days after service of this Order by the parties, 10 days after service by the Staff.
C. Appeals may be taken within the time limits prescribed by 10 C.F.R. 5 2.714a(a):
10 days after service of this Order.
Briefs in support of, or in opposition to, any appeal may then be filed within 10 days after service of the appeal.
D. Responses to the Board's questions on the short pilings issue shall be filed 10 days after service of this Order.
E. Local 1010 is given 10 days after service of this Order to indicate that it did not intend to transform Contention 10-B into a narrow contention limited to dewatering over a prolonged construction period, if that is the case.
F. Arguments in support of, or opposition to, the admissibility of Porter County Chapter Petitioners and the State of Illinois shall be filed within 15 days after the service of this Order.
Replies may be filed within 10 days after service of the arguments.
Mr. Glenn O. Bright, member, and Dr. Richard F. Cole, member, join in this Order.
BY ORDER OF THE BOARD FOR THE ATOMIC SAFETY AND LICENSING BOARD 4.
Ww Herbert Grossman, Chairman Dated at Bethesda, Maryland this 7th day of August, 1980.
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(Bailly Generating Station, Unit
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SERVICE LIST Herbert Grossman, Esq., Chairman Jack R.
Newman, Esq.
Atomic Safety and Licensing Board Newman, Reis, Axelrad & Toll U.S.
Nuclear Regulatory Commission 1925 Connecticut Avenue, N.W.
Washington, D.C.
20555 Washington, D.C.
20036 Dr. Richard F.
Cole Mr. John van Vranken, Chief
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Atomic Safety and Licensing Board Environmental Control Division U.S.
Nuclear Regulatory Commission Northern Region Washington, D.C.
20555 188 West Randolph Street, Suite 231' Chicago, Illinois 60601 Mr. Glenn O.
Bright Atomic Safety and Licensing Board Mr. Mike 01szanski, Chairman U.S.
Nuclear Regulatory Commission Environmental Committee Local 1910 Washington, D.C.
20555 United Steelworkers of America 3703 Euclid Avenue Counsel for NRC Staff East Chicago, Indiana 46312 Office of the Executive Legal Director U.S.
Nuclear Regulatory Commission Edward W.
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Esq.
Washington, D.C.
20555 One IBM Plaza, Suite 4600 Chicago, Illinois 606L1 1
Northern Indiana Public Service Co.
ATTN:
Mr.
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Lyle Robert J.
Vollen, Esq.
l Vice President - Electric c/o BPI t
Production & Eur,ineerin8 109 North Dearborn Street 5265 Hohman Avenue Suite 1300 Ham =ond, Indiana 46325 Chicago, Illinois 60602 1
William H.
Eichhorn, Esq.
Robert L.
Graham, Esq.
One IBM Plaza, 44th Floor Eichhorn, Eichhorn and Link 524.3 Hohman Avenue Chicago, Illinois 60611 Hammond, Indiana 46325 0
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Board and partfes - continred 50-367 9
Richard L.
Robbins, Esq.
Lake Michigan Federation 53 West Jackson Boulevard Chicago, Illinois 60604
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Diane B.
Cohn, Esq.
William B.
Schultz, Esq.
2000 P Street, N.W.,
Suite 700 Washington, D.C.
20036 Stephen Laudig, Esq.
445 North Pennsylvania Street Suite 815-816 Indianapolis, Indiana 46204 George Schultz, PH.D.
110 California Michigan City, Indiana 46360 Mr. & Mrs. George Grabowski 7413 West 136th Lane Cedar Lake, Indiana 46303 Dean Hansell, Esq.
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Assistant Attorney General 188 West Randolph Street Suite 2315 Chicago, Illinois 60601 l
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