ML19337B302

Reply Brief in Form of Pleading,In Opposition to Util Contention That ASLB Has Erroneously Found That City of Gary,In,Et Al Have Standing for Intervention.Certificate of Svc Encl

ML19337B302
Person / Time
Site:	Bailly
Issue date:	09/29/1980
From:	Cohn D, Schultz W COHN, D.B., GARY, IN, SCHULTZ, W.B.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19337B297	List: ML19337B293 ML19337B302
References
ISSUANCES-CPA, NUDOCS 8010020055
Download: ML19337B302 (10)

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O UNITED STATES OF AMERICA

- NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of ) Docket No. 50-367

)

NORTHERN INDIANA PUBLIC SERVICE ) (Construction Permit COMPANY ) Extension)

)

(Bailly Generating Station, ) September 29, 1980 Nuclear-1) )

)

REPLY TO NIPSCO'S BRIEF IN OPPOSITION TO APPEALS In its Order of August 8, 1980, the Licensing Board concluded that the City of Gary, et al._have standing to challenge NIPSCO's assertion of good cause for an extension of construction, but ultimately denied intervention on the ground that the City of Gary, et al. had failed to raise a contention within the scope Order at pp. 40-41. In its brief in opposition of this proceeding.

to the Gary petitioners' appeal, NIPSCO urges standing as an The alternate ground upon which intervention should be denied.

City of Gary, et al. submit this brief in response to NIPSCO's standing arguments.

"It is settled that the Commission will apply judicial concepts of standing to determine hearing and intervention rights under S 189a of the Atomic Energy Act." Public Service Ca. of Indiana (Marble Hill Nuclear Generating Station), CLI-80-10, 11 NRC 438, 439 (1930). In Marble Hill, the Commission recognized that they under applicable case law, petitioners must demonstrate that will suffer " injury-in-fact" as a result of the challenged action.

The Commission defined this criterion as 'whether c cognizable 80100ao 05 6 . - .-

interest of the petitioner might be adversely affected if the proceeding has one outcome rather than another." Id., quoting Nuclear Engineering Company (Sheffield Low-level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978).

The Gary petitioners have demonstrated that they will be adversely affected if NIPSCO's request for an extension is granted.

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.

The City of Gary, located only six miles from Bailly, represents its approximately 160,000 residents; United Steelworkers of America Local 6787 represents approximately 6,000 workers employed adjacent to the site; the Bailly Alliance represents persons living in communities very near to, in many cases within a few miles of the plant; and Save the Dunes Council represents the interests of thousands of visitors to the Indiana Dunes National Lakeshore, which borders the Bailly site. See Affidavits of Charlotte Read, David Wilborn, Jack Weinberg, and Charles A. Ruckman. The risk posed by completion of a plant at a site where these surrounding populations cannot be readily evacuated is a direct and present injury to persons .living and working nearby. Most importantly, the risk of such injury will be directly determined by the out-come of this proceeding since, in the absence of an extension of the construction permit, the plant may not be built and operated. -1/

1/ Contrary to NIPSCO's suggestion (footnote at p. 25), petitioners do not have to prove the merits of their contention to demonstrate standing. Warth v. Seldin, 422 U.S. 490, 500 (1975).

The allegations of the petition should be taken as true for purposes of deciding ubether the Gary petitioners have standing to intervene. Id. at 502.

In a directly analogous case, the U.S. Supreme Court recently clarified the " injury-in-fact" test, Duke Power Co. v. Carolina In Duke Power Co.,

Environmental Study Group, 438 U.S. 59 (1978).

the plaintiffs, who resided near a nuclear plant under construce'on, challenged the constitutionality of the Price-Anderson Act, which imposes a limitation on liability for accidents resulting from the operation of nuclear power plants. The Supreme Court held I

1 that the plaintiffs did have standing, due to the risk of future i

radiation injury from routine emissions during operation of a nuclear l

reactor which would'be released if the construction on the plant were completed, an operating license granted, and if Duke Power chose to operate the plant. The Court then found that that this injury was causally related to the challenged action because the plaintiffs had shown a "substantiel likelihood" that they would benefit from the relief they sought. In other words, the Court

' found that there was a substantial likelihood that, if the plaintiffs prevailed, the plant would not operate.

Just as the Supreme Court concluded in Duke Power Co. that the

! potential for future " emission of non-natural radiation (from a nuclear reactor is al direct and present injury given our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about emissions like those concededly at 74, the risk of future emitted by nuclear power plante," 438 U.S.

emissions from the Dailly plant is also a direct and present injury.'In addition, the link between petitioners' injury and this proceeding is much stronger than it was in Duke Power Co. because here there is a certainty that if petitioners' contention prevails, NIPSCO will not operate the Bailly plant. In Duke Power Co., on the other

hand, the plaintiffs were able to show only a substantial likelihood that their victory would influence the utility's decision whether to operate the plant.

9 Moreover, the risk of injury from radiation exposure in the event of a nuclear accident is a direct and present injury to i persons living and working near the Bailly site. As in Duke Power _

i Co., petitioners have shown a substantial likelihood that they will benefit from the relief they seek in this proceeding, since their health, homes and jobs will not be put at risk if construction of Bailly is discontinued. Since the risk of radiation emitted from such a reactor, either during an accident or during normal operations, is an injury sufficient to give petitioners' standing, the Gary petitioners should be allowed to intervene.

Finally, as ratepayers, pecitioners have standing to intervene.

If NIPSCO prevails in its argument,then the construction extension could be granted, the construction of the plant completed, and the evacuation issues raised by petitioners deferred until the operating license hearings. If an operating license were then denied on the ground that the site is not evacuable in the event of an accident, then the ratepayers, including petitioners, would 4

probably be required to bear part of the cost of the useless facility. That financial loss, which will not occur if the construction permit extension is denied, is also a sufficient interest to give petitioners standing.

In nevertheless arguing that the Gary petitioners have not alleged an injury sufficient to confer standing to intervene, n..-., , ., .

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NIPSCO has, as the Licensing Board found, confused standing with th; question of which matters fall within the scope of this proceeding.

Consistent with its argument that the scope of this proceeding must be confined to a consideration of issues related only to the reasons for its delay, NIPSCO contends that standing can be found only with respect to persons suffering injury related solely to a prolonged period of construction. Obviously, if NIPSCO's interpretation of the scope of this proceeding were correct, the contention raised by the City of Gary, et al. would not be admitted. But this result is not required by " judicial concepts of standing." Marble Hill, supra. Under Marble Hill, the petitioners have standing since they have met the requirements enunciated by the Supreme Court in

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Duke Power Co.

For all the reasons stated above and in petitioners' opening brief, the City of Gary, et al. should be granted intervention in this proceeding.

Respectfully submitted, JP Diane B. Cohn William B. Schultz Suite 700 2000 P Street, N.W.

Washington, D.C. 20036 (202) 785-3704 Attorneys for the City of Gary, et al.

2/ The Federal Communications Commission cases upon which The NIPSCO Appeal relies (Dr. at 21-22) do not support a contrary result.

Board has empnasized the difference in scope between extension and pro-ceedings authorized under Section 185 of the Atomic Energy Act See Indiana and Section 319 of the Federal Communications Michican Electric Company (Donald C. Cook Act.

Nuclear Plants, Units 1 and 2) ALAB-129, 6 AEC 414, 413 (1973). As the Board found in Cook, the FCC Act " explicitly (footnote continued) 0 l

(footnote, continued:)

decrees that there will not be a forfeitute of the permit if circumstances beyond the control of the permittee prevented timely completion of the facility -- a mandate not to be found in Section 185 of our Act." Id. In any event, as the Commission's decision in Marble Hill makes plain, the NRC's standing rules are based on controlling judicial precedents, not the narrower rule adopted by the FCC.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COf24ISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of ) Docket No. 50-367

)

NORTHERN INDIANA PUBLIC SERVICE ) (Construction Permit COMPANY ) Extension)

)

(Bailly Generating Station, )

)

Nuclear 1) )

CERTIFICATE OF SERVICE I hereby certity, this 29th day of September, 1980, that copies of petitioners' motion for leave to file reply brief and reply to NIPSCO's brief in opposition to appeals have been served by hand' upon those on the following list marked by an asterisk, and by mail, first class and postage prepaid, upon the remainder:

• Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Thomas S. Moore Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Herbert Grossman, Esquire U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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• Glenn O. DrLght U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard F. Cole, U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ifoward K. Shapar, Esquire Executive Legal Director U.S. Nuclear. Regulatory Commission Washington, D.C. 20555

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

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 1

i Dr. George Schultz 110 California

' Michigan City, Indiana 46360 Robert J. Vollen, Esquire e/o DPI 109 North Dearborn Street Suite 1300 Chicago, Illinois 60602 1

Edward W. Osann, Jr., Esquire One IBM Plaza Suite 4600 4

Chicago, Illinois 60611 Robert L. Graham, Esquire i

One IBM Plaza 44th Floor Chicago, Illinois 60611 William H. Eichorn, Esquire 5243 Hohman Avenue Hammond, Indiana 46320 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana 46312 Tyrone C. Fahner Attorney General, State of Illinois Environmental Control Division 188 West Randolph Street Suite 1215 Chicago, Illinois 60601 e

p ._- , m - - , - . -- e-

i Richard L. Robbins, Lsquiro l

j 53 West Jackson Boulevard 4 .

Chicago, Illinois 60604 i

j Mr. George Brabowski j

Ms. Anna Grabowski 7413 W. 136th Lane 9

' Cedar Lake, Indiana 46303 Stephen Laudig , Esquire 21010 Cumberland Road Noblesville,

' Indiana 46060

• Maurice Axelrad Kathleen Shea Lowenstein, Newman, Reis, Axelrad & Toll 1

l 1026 Connecticut Avenue, N.W.

i Washington, D.C. 20035 l

1 Robert W. Hammesfahr, Esquire

! 200 East Randolph Street i Suite 7300

Chicago, Illinois 60601 i

' John Ahearne, Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555

- Peter Bradford, Commissioner l U.S. Nuclear Regulatory Commission Washington, D.C. 20555 I

4 Joseph Hendrie, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i

i Richard Kennedy, Commissioner U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 Victor Gilinsky, Commissioner U.S. Nuclea'r Regulatory Commission Washington, D.C. 20555 Director of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission

! Washington, D.C. 20555

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• Atomic Safety and Licensing Appeal

- Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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

Diane B. Cohn Suite 700 2000 P Street, N.W.

Washington, D.C. 20036 (202) 785-3704 Attorney for the City of Gary, et al.

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