ML19337A380

Response,Submitted on Behalf of City of Gary,In,United Steelworkers of America Local 6787,Bailly Alliance,Save the Dunes Council & Critical Mass Energy Project,To NRC & Util Opposition to Petition to Intervene.Draft Affidavits Encl

ML19337A380
Person / Time
Site:	Bailly
Issue date:	02/26/1980
From:	Cohn D, Schultz W GARY, IN, PUBLIC CITIZEN LITIGATION GROUP
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19337A370	List: ML19337A374 ML19337A377 ML19337A380
References
NUDOCS 8009090635
Download: ML19337A380 (20)

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UNITED STATES OF'Af1 ERICA

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[ .' NUCLEAR REGULATORY cot 1 MISSION

'BEFORE TILE ATOMIC SAFETY AND-LICENSING BOARD

.In:The Matter of- -) ,

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NORTilERN-INDIANA.PUBLIC -) DOCKET NO. 50-367 SERVICE COMMISSION- )'

(Bailly-Generating Station ) (Construction Permit

" Nuclear 1)z ) Extension)

REPLY TO NRC STAFF AMD NIPSCO RESPONSE-

-TO PETITION FOR LEAVE TO INTERVENE

' Pursuant'to~the notice published ~at 44 F.R. 69061

(' November .' 3 0, 1979), the City of Gary, Indiana, United Steel--

-workers of America-Local-6787, the Bailly Alliance, Save the

- -Dunes Council,_and the Critical Mass Energy Project have peti-tioned to intervene in this construction permit extension

_ proceeding. The'.NRC-staff and the Northern Indiana Public

> Service Commission '("NIPSCO") have opposed intervention on-the.groun'ds that petitioners ~have failed to demonstrate an interest that could' confer standing to participate in this

. proceeding or:onc that. falls within the' scope of~the required-

" good'cause" finding of 10 C.F.R.'S 50.55(b).

PetitionersIherebyisupplement'.their petition'to intervene

by addressing-both of1these_c.ontentions.

.l . Petitioners.Itave Stianding to Intervene.

Infits response, the NRC staff does not challenge the-standing of-_the City of. Gary,. Indiana to intervene in this

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E y-proceeding,-fgiven its . governmental character and prc,ximity.

tolthe/Bailly sihe; JNRC-Response at 27. ~NRC challenges the standing of 7theKremaining'; petitioners, however, on the grounds

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that:they 'are general 1"public< interest" organizations which have-~not~ demonstrated as 'ai factual matter that the personal interests of their. individual-members will be affected by

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While' petitioners Steelworkers Local

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..this' proceeding. lid. .

6787,;Save-.the-Dunes Council and the Dailly Alliance alleged

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Lin.their' original filing that they have sought intervention on-behalf.of their members whose health and' safety will be directly affected by.the outcome here,-these petitioners sup- .

plementit heir allegations with the affidavits attached hereto,

' demonstrating ~both that they are authorized to appear on be-half?of their individual members,-and that their members

!will suffer " injury-in-f act" should an extension of the con-7 struction permit be granted. 1!

The U.S. Supreme Court recently clarified.the " injury-in-fact" test' inLDuke Power Co. V. Carolina' Environmental Study

- Group', 438'U.S. 59 (1978). 'In that case, the plaintiffs who resided nearfa' nuclear plant-under construction were found to have standing.due to the risk of future radiation injury

- from1the routine emissions of a nuclear reactor. .Just as-11/4 Pet'itioners'-affidavits have been approved by each of the Individuali representatives. of the petitioner groups, but due tol:the sh. ort time available,~ counsel has not yet received the executed orig.inals. . --As-soon.as they are received, executed copies willfbe filed and^ served on all parties.

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"the emission of non-natural radiation [from a nuclear reactor is a] direct and present injury, given our generalized concern about exposure to radiation and the apprehension flowing from the unc,crtainty about emissions like those concededly emitted by nuclear power plants," Duke Power Co., 438 U.S. at 74, the risk posed by completion of a plant at a site where surrounding populations cannot be readily evacuated is also a direct and present injury to persons living and working nearby. See also United States v. SCRAP, 412 U.S. 699 (1973). As the Supreme Court further stated in Duke Power, parties have demonstrated " injury-in-fact" if they can then show that there is'a " substantial likelihood" that they will benefit from the relief they seek. 438 U.S. at 72. Petitioners here will benefit if NIpSCO's request for an extension is denied, since their health, homes, and jobs will not be put at risk if con-struction of Bailly is discontinued.

As the petitioners' affidavits show, these organizations represent individuals who reside or work in, or who regularly visit for recreational purposes, areas in close proximity to the Bailly site. United Steelworkers of America Local 6787 represents approximately 6,000 workers employed adjacent to

-the site, the Bailly Alliance represents citizens who live very near to, in many casos within a few miles of, the plant, and Save the Dunes Council represents the interests of thousands of visitors to the Indiana Dunes IIational Lakeshore, which borders the-Bailly site. All three groups are membership organizations, whose members have, either directly or through l

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their electediropresentatives', authorized ~ Local.'6787,:Save

! the: Dunes! Council andEth'e-Bailly Alliance to represent.their I'- respective. ' interests in challenging.BaillyEin'this proceeding.

on thcE groundsf of .:the -lack of' euergency response capability.

'ScoLAffidavits.of: David C. Wilborn,~ Char 1~otte Road, and Jack Weinberg, attached hereto as Exhibits A, As the-B,'and C. .

NRC staff recognizes (Response at 6) Land as the Supreme Court has-madeJclear,.such organizations'have. standing so long as t

l -their' members,.or any one of them, suffer the injury complained

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of. Warth v. Soldin,.422 U.S. 490, 511 .(1975). Petit oners" have demonstrated that they represent a health and safety

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f interest'of their members that will be affected by the outcome of th'is proceeding, and thus have standing to proceed.

[- The Critica1LMass Energy Project seeks-discreti'onary intervention -in: these ' proceedings , on the grounds that'its

'exper*.iselwith respect to the issue of emergency planning will

!- contributo substantially'to.the' development of a sound record.

b Y See Portland General- Electric Company (Pebble Springs Nuclear

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l l' Plant, Units.'l and 2),-CLI-76-27, 4 NRC 610 (1976). As the h

I attached affidavit ~of-Richard Pollock demonstrates (Exhibit: D) ,

Critical 1 Mass h-asiparticipated in' numerous proceedings before NRC a6d1 Congress on.the issue.of emergency; planning, has served t

.as-consultantLto special NRC study groups relating to c'mergency -

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planning,-and has; assisted local governments in conducting t

lemo'rgency- evacua tion L drills. Critical Mass has no property or n o.ther financial ~intercet in:this proceeding,-but its aim in- q

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- promoting; consideration-of cmergency-planning and' proper. siting c ,

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2 in *he conunercial licensing process may be affected by the outcome here. Given its expertise, CMEP's participation will

- enhance, not delay, the proceeding, particularly if intervention as of right is granted to other petitioners who seek to partici-

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pate with respect to the emergency planning issue,

.2. Consideration of Whether Bailly is Evacuable

-in the Event of a Nuclear Accident is Properly Within the Scope of this Proceeding.

The NRC staff and NIPSCO contend that, even if petitioners can demonstrate a health and safety interest that would confer standing to intervene, their interest in emergency planning is not.cognizible within the scope of this proceeding. They suggest that NIPSCO should now be permitted to proceed to construct an entire plant, and that only at the operating-license stage should the question of emergency response capability be addressed.

Petitioners submit that it would be contrary to'the Atomic' Energy Act and to all notions of protection of the public interest to con-sider only after a plant has been built whether it has been built

-in a safe place.

The Atomic Energy Act has created a mechanism for triggering public scrutiny through hearings at various stages of the licen-sing process. Section 185 provides that if construction of a facility is not completed by a date specified in the construction

- permit, "that permit shall expire and all rights thereunder . . .

forfeit'ed . . .." A presumption is thus created which requires tue applicant to.make a showing of " good caus^" to overcome a statutory bar to completion. And the Appeal Board has specifically n

recognized in the decision upon which the NRC staff so heavily relics, that a finding of " good cause" may require consideration of safety or environmental issues beyond the narrow question of the applicant's excuses for non-completion, if the " totality of the circumstances" demonstrate in a particular case that consideration is "necessary in order to protect the interests of intervenors or the public interest." Indiana and Michigan Electric Company _, 6 AEC 414, 420 (1973).

The fundamental question of whether a plant proposed to be built in a highly populated area is capable of being safely evacuated in the event of a nuclear accident is one which, we submir, cannot reasonably abide eventual review at the operating license stage. The NBC staff's contention that it is only the utility that bears the ris arring such consideration until after full construction ot the plant ignores the effect on the equities of the question of whether a plant is 1% constructed, or 99% complete. Moreover, such an approach ignores the implication for utility ratepayers of the question of who will bear the costs of an eventual decision, after construction is complete, that the Dailly site cannot be safely evacuated and thus that the plant will never operate.

While NIPSCO and the NRC staff contend that the issue of emergency response capability was preliminarily considered at the time a construction parmit for Bailly was issued, this argument ignores the fact that even the NRC now concedes that its prior requirements on emergency planning were inadequate.

As NRC stated recently in issuing proposed rules, the Commission

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, -7 now regards " emergency planni ng as equiva len t to, rather than secondary to, siting and design in public protection," c position which it acknowledges is a " depart [urel from its prior regulatory approach to emergency planning." '4 F.R. 75169 (Dec. 19, 1979).

In contrast to Bailly's 2,400 meter low population zone, the Commission has now proposed that an emergency planning zone of at least 10 miles serve as the minimum distance from a plant within which workable evacuation must be a condition of operation.

Although experts contend that even this figure is too low,2/ it is at least clear that the Commission now views its prior standards, upon which emergency response capability at Bailly was considered 3/

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in only the most limited way, as wholly inadequate.

The NRC staff and NIPSCO suggest that the Board need not address the emergency planning issue in this proceeding because petitioners can alternatively seek the initiation of a 2/ See the recently released Rogovin Report, Three Mile Island,

-X Report to the Commissioners and to the Public, at p. 131.

3/ The Commission's reevaluation of its prior standards stemmed In large part from the accident at Three Mile Island. See 44 F.R.

at 75169-75170. Even NIPSCO suggests that TMI has given rise to changed circumstances which are relevant to the question of whether " good cause" for an extension exists, by stating that additional time will be required due to " indications that NRC reviews arising from the Three Mile Island incident will extend the schedule of all plants under construction." If issues arising from the accident at TMI can provide the basis for granting more time for construction to proceed, they are equally relevent for A showing why " good cause" exists for denial ofisanc1carly extension.

required new consideration of emergency preparedness as a result of~Three Mile Island.

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-.show cause proceeding pursuant to 10 c.P.R. S'2.206.

It is-fplain,.however, that petitioner's rights to develop a record through, hearing; procedures'are far more circumscribed under the alt'ernative.NIPSCO and.the staff suggest. 'Moreover, under part

/ 2.206, the. burden wouldnot be on NIFSCO to demonstrate that BaillyLean-be safely operate'd, which is where the burden should

! lic,'but.upon petitioners to demonstrate.that. construction should .

not! continue. Such a proceeding could also be duplicative of offortLwhich-the Licensing Board will expend'in the current proceeding. Most. importantly, however, it is petitioners' view

.that the'public health and safety demand that. construction at

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[' Bailly simply should not continue until it has been determined r

l L thatlevacuation' is possible around this site, and petitioners i

I should not'be directed to pursue alternative and possibly time-

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consuming; review-rout'es-when the Board-is considering' approval of t-a construction permit extension at this time.

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l For'~all of these reasons, the contention raised by petitioners, h ~i.e., that NIPSCO cannot demonstrate " good cause" for an extension i- absent-a showing that' realistic avacuation and emergency plans i

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which petitioners'~should be permitt'ed to address.

Respectfully submitted, i

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( Diane B. Cohn

- William B. Sc ltz

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Washington, D.C. 20036 (202) 785-3704 Attorneys for Petitioners February 26,11980 i

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Exhibit A

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. - o-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

, BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD e

i In the Matter of NORTilERN . INDIANA PUBLIC ) DOCKET NO. 50-367

• SERVICE COMPANY -).

.(Bailly Generating Station, ) (Construction Permit Nuclear 1)' ) Extension)

AFFIDAVIT OF DAVID C. WILBORN David C. Wilborn declares and states as follows:

1.'I am President of the United Steelworkers of America Local' Union 6787, which is seeking to intervene in this construction permit extension proceeding.

2. Local 6787 represents approximately G,000 em-ployees of the Bethlehem Steel Company's Burns Harbor Plant, which\is'immediatelyadjacenttothesiteoftheBaillyOne Nucloak.GeneratingStation. -

3. In the event of a nuclear acci, dent at Bailly, the health and jobs of these memberslof Local 6787 would be seriously

= threatened. This fact is compounded by-the lack of adequate L

evacuation plans to protect employees of the Burns Harbor

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Plant-in the event that an-accident should occur..

'4. For-this reason,.on April'5, 1979, a meeting of the general membership overwhelmingly. approved a resolution autho-

rizing the officers'and executive board of Local 6787 to take appropriate action to challenge-the_ construction of Bailly in

= view of'the lack of cmergency evacuation planning. A-true

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, t, p j'1 l ' copy o'f. the resolution is attactied to this:.af fidavit. .

-, S"..Because of the risk to the health and livelihood of the members of Loca'1.6787, NIPSCO's request for a construc-tion ' permit..should. be denied .unless 'it can demonstrate that realistic evacuation and emergency, response plans can be implemented.

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In'accordance with 28 U.S.C. S 1746, I declare under penalty of perjury that the foregoing is true and correct.

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David C. Wilhorn

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Whereas The Northern-Indluna Public Service Company proposes to build the Bailly v.

Nucicat One Generating Station on n site immediately adjacent to Beth-ichem Stect's Burna liarbor Plant and Whereas The recent Nucicar accident at Three Mile Island Nuclear Generating Station near liarrisburg, Pennsylvania is, _ although the most serious, only thE latest,in a long series of accidents in Nuclear Power Generating facilities, and Whereas: Such an accident,'should.it occur at the proposed Bailly Nuc1 car One i

' Plant would seriously threaten the. health, and jobs of the members of Local 6787 working at the Burns liarbor Plant and ,

Wherens: 'If in the event _ of such an accident the evacuation of the employees of Bethlehem. Steel should become necessary, the present evacuation plan would prove inadequate in that it is inspecific, out of date, and un-tested, and Whereas: The radioactive emisulons of nuclear generating facilities in normal operation have been shown to cause'significant and unacceptable in-creases in the rates'of cancer, genetic birth defects and infant mor-

• tality among populations immediately surrounding the plants and Whereas: It is the responsibility of Local 6787 USWA to protect the lives, health and Jobs of its membership and the surrounding community.

' Therefore be it resolved that, 1

.The membership of Local 6787 USWA hereby goes on record as being opposed to the. construction of the Bailly Nuc1 car One Generating Station and hereby in-structs, the of ficers and exect,itive board of Local 6787 USWA to take whatever ac-tions it deems necessary to.stop th.c construction of Bailly Nucicar One including accepting the offer'of the Public Citizen's Litigation Group to take Icgul action against' N1PSCO and the Nuclear Regulatory Commiusion in regard to the proposed evacuation plan.for the Burns liarbor Plant. ,

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, ' UNITED STATES ~OF' AMERICA ~

• NUCLEAR-REGULATORY COMMISSION .

BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD-In1The Matter of- )

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DOCKET NO. 50-367

-NORTHERN INDIANA PUBLIC .).

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. SERVICE COMPANY (Construction Permit

' (Bailly- Generati,ng' Station, )

Nuclear 1). ) Extension)

AFFIDAVIT-OF CHARLOTTE READ Charlotte Read declares and states as follows:

1. I am a member-and' Executive' Director of Save'the Dunes Council, a 27-year old membership organization established for the. sole purpose of presor.ing v and protecting the Indiana

• Dunes for public~use and. enjoyment. In the 2-1/2 decades L

since the group's formation, we have spearheaded citizen efforts to pass legislation. establishing the-Indiana Dunes National L Lakeshore-in 1966, and enlarging it in 1976. We are cuyrently.

l. w y I ' engaged Lin1 similar efforts' to pass ' federal legislation which

(-' ,would again ' enlarge- the park.:

L 12. Save the Dunes Council seeks to~ intervene in these

-proceedings on behalf o'f its approximately 2000 members who

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<are visitors;to', 'and users and supporters of the Indiana Dunes Nat'ional 'Lakeshore. Some of the members of the Council,

.. including ~myself, also.r'eside within or near the. boundaries l

of.the Lakeshore.

[3i 'The continued enjoyment of the Indiana Dunes is now ithreatened by constructioniof'the-Bailly One Nuclear Generating

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. Station. .The Indiana Dunes National Lakeshore extends east, west, and south of the site of the proposed Bailly nucicar plant, with the boundary'of the Lakeshore's Cowles Bog Area lying a mere 800 feet from the site of the reactor building.

Despite the close proximity of Bailly to the Lakeshore, which ,

attracts thousands of visitors each day-during peak season, it has never been shown that these populations could be evacuated within'a reasonable time in the event of a nuclear accident. Of course, due to the fact that the Lakeshore is located directly adjacent to the Bailly site, visitors to the lakeshore could be unknowingly exposed to radiation in .

the event of a release before any evacuation measures can be undertaken.

4. Because of the lack of consideration given emergency planning, on September 5, 1979, the Board of Directors of Save the Dunes Council, which is elected by our general member-

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ship,. voted to take all appropriate action to oppose construction of Bailly. The Board voted specifically to join the City of Gary, Indiana, United Steelworkers Local 6787, the Bailly Alliance, and the Critical Mass Energy Project in petitioning the Nuclear Regulatory Commission to stop construction, unless and until it has been demonstrated that evacuation of the Lakeshor^ can be accomplished in the event of a nuclear accident.

5. Unless NIPSCO makes such a showing in this proceeding, Save'the Dunes Council contends that the requested construction L

permit extension should be denied.

In accordance with 28 U.S.C. S 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on ,

t CliARLOTTE READ 1

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- Exhibit C' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

e UEFORE Til'E ATOMIC'SAFETYLAND LICENSING BOARD I

e In The Matter of. ). ,

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• NORTi!ERN -INDIANA- PUBLIC ~) DOCKET NO. 50-367 SSRVICE' COMPANY )

(Construction Permit

^  :(Bailly Generating Station, ) Extension)

Nuclear 1) ).

w AFFIDAVIT OF JACK WEINBERG Jack'Weinberg declares and states au follows:

1. I reside at 7515 Oak Avenue in the City of Gary, -

Indiana. . My residence is located approximately 8 miles from the proposed site of the Bailly One Nuclear Generating Station.

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12. .I am a member of the Bailly Alliance, a coalition of individuals and community groups representing persons residing

' in"12 northwest Indiana communities in close proximity to the

.Bailly site. I am also~a' member of the Bailly Alliance steering committ,ee, which consiscs of representatives elected at meetings o'f the general- membership,- as well as representatives of member community groups. I have voted along with the membership and the steering committee to authorize the Bailly Alliance to intervene in this; proceeding on our beh.alf.

'3. Because I.and other members of the Bailly Alliance reside

'in communities _ adjacent to-or in close proximity to the Dailly site, our health and safety will be jeopardized in the~ event of a" nuclear accident. This risk.is aggravated by the lack of

. ' acceptable evacuation plansLfor.the highly populated areas

' surrounding:the1Bailly site.

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4'.-?For this reason, tile.Bailly Alliance socks .to intervenc in this proceeding to oppose extension of s

the construction u

. . unless NIPSCO demo 4.strates that realistic emergency

. permit; evacuation plans can.be implemented..

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, o In accordance with 28 U.S.C.

S.1746, I declare under-penalty of perjury that the-Executed foregoing is.true and correct.

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JACK WEINBERG a

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O ,7 Exhibit D i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

. BEFORE THE ATOMIC SAFETY AND LICENSING BOARD _

In The Matter of )

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) DGCKET NO. 50-367 NORTHERN INDIANA PUBLIC

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SERVICE COMPANY (Bailly Generati,ng Station, ) (Construction Permit Nuclear 1) ) Extension)

AFFIDAVIT OF RICHARD P. POLLOCK Richard P. Pollock declares and states as follows:

1. I am Director of the Critical Mass Energy Project, a branch of Public Citizen, Inc. in Washington, D.C.

2. CMEP is a public interest organization dcdicated to As the development of safe and efficient energy technology.

part of its activities, Critical Mass has participated in numerous proceedings before Congress and the NRC in an effortito promote the implementation of. effective requi ements for' preparedness in the event of nuclear emergencies.

3. On August 6, 1975, CMEP, in conjunction with the Public Interest Research Group, filed a petition for rule-making with the NRC on emergency planning for nuclear accidents.

On May 9, 1979, CMEP filed a second rulemaking petition with the NRC on emergency planning, which is still pending before

.the Commission. CMEP has also filed numerous comments in response to NRC proposals on emergency planning for nuclear accidents, most recently in response to proposed new rules for 10 C.F.R. Part.50 and Appendix E, published,in the Federal l

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- Register on-December l'), 19.79.

~4. As Director of CMEP, I have testified in numerous f

Congressional hearings on-the subject of. nuclear emergency and evacuation planning. These inclu'de hearings before the !!ouse Subcommittee on Environment, Energy and Natural Resources (May 7, 1979) .and the U.'S. Senate Government Affairs Committee (May 9, 1979).

5. I have'also served as a consultant to Sandia Laboratories under contract to the NRC for the transportation of radioactive Part of the panel's work materials in trban environments.

revolved around emergency. planning for radio. logical accidents related-to nuclear cargo shipments.

Most recently, I served as consultant to the National Academy of Public Administration for the 'NRC's Special Inquiry Group into the accident at Three Mile Island. .The. subject wrs " Reactor. Crisis Management - Emergency Planning".and is part.of Volume II of the Rogovin Report.

N 6. I have also appeared before the U.S. Civil Defense Council and the U.S.. Conference of Mayors and the National d s.

. League of-Cities to address emergency planning and prepare nes I authored a feature article on emergency planning for the monthly magazine of the National League of Cities, entitled (Nation's

" Planning.Against'a Nuclear Emergency in Your City."

Cities _,-February 1978).

.7.- Finally,-CMEP has directly promoted the need for I assisted the officials routine : evacuation tests and drills.

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of.Waterford, Connecticut'in 1978-wh'enLth'e1 township prepared an evacuation drill for'the three cities surrounding.the 7 Millstone nuclear si e.- I served as an observer for the evacuation test conducted in December, 1979 in Wilmington,

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North' Carolina'for;an exercise. conducted around the Brunswick nuclear power plant 8...Because o' f my extensive work related to issues con-cerning emergencp planning, I!would be prepared to testify and believe that I could:substantially contribute to the develop-ment.of a-fuller record in this proceeding.-

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In accordance with 28 U.S.C. S 1746, I declare under penalty of perjury that the fore' going is true and correct. Executed on

' RICHARD P. POLLOCK D, -

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