ML19338D223

Brief in Form of Pleading Supporting City of Gary,In,Et Al & G Schultz Appeal from ASLB 800808 Special Prehearing Conference Order.Urges Reversal of Portion Denying Admissibility of Evacuation Issues.Certificate of Svc Encl

ML19338D223
Person / Time
Site:	Bailly
Issue date:	09/15/1980
From:	Fahner T, Marc-Anthony Murray, Sekuler S ILLINOIS, STATE OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-CPA, NUDOCS 8009220177
Download: ML19338D223 (8)

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SEP09 5 UNITED STATES OF AMERICA NNEWf NUCLEAR REGULATORY COMMISSION 4 ,'

~Af BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

NORTHERN INDIANA PUBLIC ) Docket No. 50-367 SERVICE COMPANY )

) (Construction Permit Extension)

(Bailly Generating Station )

Nuclear.1) )

INTERVENOR, STATE OF ILLINOIS BRIEF IN SUPPORT OF APPEALS OF THE CITY OF GARY et al. AND DR. GEORGE SCHULTZ FROM ORDER FOLLOWING SPECIAL PREHEARING CONFERENCE NOW COMES, Intervenor, the PEOPLE OF THE STATE OF ILLINOIS, by its atttorney TYRONE C. FAHNER, Attorney General of the State of Illinois, and pursuant to 10 C.F.R. S2.714(a) submits its brief in support of the appeals from the August 8, 1980 Order Following Special Prehearing Conference [" Order"] which denied Petitioners City of Gary et al. and Dr. George Schultz the right to intervene in this proceeding.

Interest in this appeal is based on the situation of Illinois citizens who will be affected by the evacuation procedures to be implemented at the proposed plant which is located less than 59 miles from the Illinois State line and the Chicago Metropolitan area. Interest is also premised upon Illinois' duty to assure its citizens an opportunity for a full and fair airing of all issues material and relevant to this proceeding.

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-STATEMENT OF THE CASE *-

-The Board Order admitted that petitioners Schultz, City of Gary, United Steelworkers of' America Local 6787, Save the Dunes Council, and Critical Mass Energy Project each had standing to~-

intervene in this proceeding. Each was denied admission as a party because the Atomic Safety 'and Licensing Board [" Board"]-

determined that the sole contention raised by each intervenor was beyond the scope of the construction permit extension proceeding.

In so ruling the Board erred. Consideration of evacuation and emergency plans must take place now in order to assure the public that any plant construsted at the Bailly. site will not endanger the public welfare. Therefore Illinois supports the appeals.

j ARGUMENT I. THE LICENSING BOARD ERRED IN DENYING PETITIONER'S CONTENTIONS WHICH DEALT WITH EVACUATION IN THE EVENT OF AN ACCIDENT AT THE BAILLY PLANT.

The City of Gary et al. and George Schultz each have raised an issue-concerning the adequacy of present_and potential evacuation procedures in the event of an accident at the Bailly plant.

The Facts leading to.the Board's Ruling are fully set out in the City of Gary et al. "Brief in' Support of Appeal From Order Denying Petition to Intervene". filed August 29,'1980 at 3-8.

3-Each of these contentions fits squarely within the scope of the

~ hearing as' defined by the Board in.its Order. That Order, based on the Board's correctLinterpretation of' Indiana and Michigan Electric Company '(Donald C. Cook Nuclear Plant, Units 1 and 2) ,

ALAB-129, 6 3dX: 414 (1973), defined three broad areas to be relevant to-the proceeding: (1) reasons for the delay in construction, (2) consequences of extended construction, and (3) compelling safety issues which have arisen since the grant of the construction permit and which will not be satisfactorily resolved by the new completion date [ Order at 28-9].

The petitioners'

evacuation contentions fit squarely within the last area, which was defined by Cook to include considerations of health, safety or environmental issues where there is a prima facie showing that consideration is "necessary in order to protect the interests of intervenors or the public interest" (6 AEC at 420) . The Board accepted this definition as well as the admonition to apply a

" common sense approach" in consideration of compelling safety issues (Order at 27-8). The Board's error, then, was in failing to correctly apply the legal standard it adopted to the contentions raised by the petitioners.

The petitioners made a sufficient showing that evacuation will not be feasible by the new completion date of the facility.

The present population, both static and transient, the existing

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and planned roads',-the' proximity of a.high.. security prison-and l steel mills which1cannot be~ totally ~ evacuated all'go to show;that

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totaltevacuation willDbe. impossible in-the~ year -1987. This' showing

'alone-should befsufficient-to' compel the Board to consider at a hearing whether-theLexisting rules of the' Commission can be complied

.See," Emergency Planning" final rule, 45 Fed. Reg. 55402-55415,-

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August'19, 1980.

The Board also erre'd in~ making the determination that petitioners contentions were attempts-of relitigating issues previously' considered at the construction permit hearing. Petitioners' contentions' deal with the question of Class 9 accidents and their effects on~ evacuation. Such issues were not discussed'at the construction permit hearing *. Since the permit was granted Commission poli'cies and regulations have been significantly altered to accomodate the inclusion of Class 9 accident assessments. See 45 Fed. Reg. 40101, June-13, 1980 and letter from Gus Spith, Chairman, Council on Environ-

-mental Quality..toLAttorney General Fahner, August 18, 1980 (attached' as: Exhibit B)' Evaluation of evacuation and other measures to protect the'public-are also now to=be required. See 45 Fed. Reg. 55402, 55411, Au' gust.19, 1980.. i l

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'Ihe Board may have confused questions; of site suiubility under 10 C.F.R. Part 100 Lwith Petitionsrs', Ca h 2. ions. If so, the Board was in error. . Illinois has'previously objected 'to such confusion'.in regacd toLthe Board ruling on Illinois CuienLion 6,

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'which didfitvWd hl .with issues of physical' site. suitability that had arir.at sincejthe. construction; permit was granted. Illinois then raised the distinction.

ibetween the City"of Gary and. Schultz contentions'en. evacuation and Illinois ,

. Contention'6b 1Seel" State'of Illinois Response to Provisional Order Following b Special Prehearing Conference" filed June 30,1980 at-5-9: attached hereto as Exh bit A .

and~irwrated by ' eference r herein.

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The Board's, reliance 1on;the A'dvance Notice ~of-Rulemaking.

-(4 5 F.R. 50350-51,1.(July?29, 1980)ientitled'"Modific'ation of the Policyiand RegulatoryiPracticeJGoverning the Siting of Nuclear

-Power Reactors")fis! misplaced.- See Order at pp'.~31-32. To the extent that theLRulemaking-may deal'with site' evacuations, it does' not precludeiconsiderationfof this issue'in an individual licensing l proceeding.

Generally, once the Commission orders a rulemaking so as to' resolve an issue, adjudication of that issue in' individual  ;

licensing proceedings should be avoided. See In The Matter of Potomac Electric Power Company- (Douglas Point Nuclear Generating Stations-Units 1 and - 2) , ALAB-218. 8' AEC 79, 85 (1974); In the Matter of' Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power 1 Station) ALAB-179 7AEC 159, 163 (1974). ' Absent-any.such rulemaking, such issues are to be considered in individual licensing proceedings. pee-Douglas Point, supra, 8 AEC at 84, NRDC v. NRC 547 F2d 6?3'641 (D.C. Cir 1976).

-In the-Advance Notice of Rulemaking, supra, 45 F.R. 50350, the Commission recognized the need to consider issues involving plants already having. construction permits on a case by case basis.

The Commission directed the Staff to submit a. report for consideration by:the Commission of these issues. This does not

.amountito'an. order from the Commission that such issues cannot be-considered in' individual licensing proceedings. .There.is thus no m

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~;6-current Commission action which would_ prevent-the Board from considering evacuation issues in this proceeding.

CONCLUSION For the foregoing reasons, the Licensing Board erred in denying the admissibility of the evacuation issues submitted by the City of Gary, et.al. and Dr. George Schultz. This portion of the Board's Order should be reversed and remanded with directions to admit the City of Gary et.al. and Dr. George Schultz as intervenors in this proceeding and to admit their evacuation contentions.

Respectfully submitted, TYRONE C. FAHNER Attorney General State of Illinois BY:

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BtfSAN N. SEKULER V Assistant Attorney General OF COUNSEL:

MARY JO MURRAY Assistant Attorney General Environmental Control Division 188 West Randolph Street Suite.2315.

Chicago, Illinois 60601 312-793-2491 DATED: SEPTEMBER 15, 1980

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

-BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the-Matter of )

)

NORTHERN INDIANA PUBLIC ) Docket No. 50-367 SERVICE COMPANY )

) (Construction Permit Extension)

(Bailly Generating Station )

Nuclear 1) )

CERTIFICATION OF SERVICE I hereby cer'ify t that copies of "INTERVENOR, STATE OF ILLINOIS BRIEF IN SUPPORT OF APPEALS OF.THE CITY OF GARY et al. AND DR. GEORGE SCHULTZ FROM ORDER.FOLLOWING SPECIAL PREhEARING CONFERENCE" in the above -

captioned proceeding having served on the following by deposit in the United States mail,-'first class postage prepaid this 15th day of September, 1980.

Eerbert Grossman, Esq., Chai= man Edw'rd a W. Osann Jr. Esq.

At=mic Safety and Licensing Scard Panel Suite 4600 U.5.-Nuclear Regulatory C== mission One I3M Placa Washi gton, D.C. 20555 Chicago, Illincis 60611 Dr. Richard F. . Cole Rcher: L. Graham, Esq.

Atcmic Safety and Licensing Scard One I3M Placa Panel 44th Flecr U.S. Nu clear Regulatory Cnmmissics Chicage, I111scis 60611 Wash' gton, D.C. 20555 Mr. Glenn O. Bright- Gecrge and Anna Grabcwski

'Atcmic Safety and Licensing 3 card 7413 7. 136th Lane Panel Cedar Lake, Indi=-a 46303 4

U.5. Nuclear Regulat==f Ccmmissics

Wash',g =n, D.C. 20555 Kathleen E. Shea, Esq. Dr. George Schult Lcwensta# , Newman, Reis, Axelrad 110 Califernia Street and Tc11 _

Michiga= City, 5d'ana 46 1025 C=nnecticut Avenue, N.W.

I Washingt=n,'D.C. 20555 Rcbort J._vollen, Esq. Richard L. Rchbins, Esq.

c/o13PI Lake Michigan Federaticn 109 N. Daarbcrn Street- 53 W. Jackscn Blvd.

&4 cage,-Ilii cis.60602 &dcage, Illincis'60604 L

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i Cliff =rd Meco,;Ac 4ng President William E. Eichhczn, Esq.

Local:1010 Eichcrn, Mc is & Eichhczn Uniced Steelwc kers of America -5243 Echman Avenue 3703 Euclid Avenue- Hammend, NA#ana 46320 East Chicago, Indiana 46312 Diana v. Cohn, Esq. Michael I. .Swygert, Esq.

Suice 700 25 E.. Jackson 31vd.

2000 P Street N.W. .

Chicago, Illinois 60604 l Wnshington, D.C. 20036 At=mic Safsty and Licensing Stephen.Laudig, Esq. 1 Scard Panel 445 N. Pennsylvania Street U.S. Nuclear Regulatory Commission Indianapolis, Indiana 46204 Washingten, D.C. 20555 Steven Goldberg Counsel of.the NRC Staff Office of the Executive Legal Dirq Deckering and Services Sect:.cn

. U.S. Nuclear Regulatory Commissica-O c. . .crce c.,. the Secretary Washington, D.C. .,0_:_:_

U.S. Nuclear Regulatcov C.cmmission Washing cn, D.C. 20555~-

Accmic Safecy and Licensing Appeal Scard Panel C.S. Nuclear Regulatory C=mmissicn Washington, D.C. 20555 i

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l$lbb'b MARY J ItTRRAY Alddl .

I

/ 1 SUBSCRIBED AND SWORN TO l BEFORE ME THIS 15TH DAY '

OF SEPTEMBER, 1980.  !

GLCo

" 'NO' e u RY PUBLIC l

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UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION .

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

)

NORTHERN INDIANA PUBLIC )

SERVICE COMPANY, ) DOCKET 50-367 (Bailly Generating Station, )

Nuclear I) )

)

(Construction Permit Extension) )

Dated June 23, 1980 )

STATE OF ILLINOIS RESPONSE TO PROVISIONAL ORDER FOLLOWING SPECIAL PRE-HEARING CONFERENCE The State of Illinois (Illinois) pursuant to the directions contained in the Provisional Order Following Special Pre-Hearing Conference (Provisional Order) issued May 30, 1980 hereby files its response to said Order. Illinois has attemoted to make a timely filing of this Response. In the event that Illinois' interpretation of the Board's order in regard to time of filing was incorrect, Illinois noves the Board for leave to file this response instanter.

1 The Provisional Order was docketed on May 30, 1980 and was received by Illinois June 5, 1980. It is being filed within 25 days of service as specified by 10 C.F.R. Section 2.710 and by the Provisional Order.

On Page 49 of the Provisional Order, it is stated that reworded contentions "should be filed at the same time as the comments to this Provisional Order (25 days after service of the Provisional Order)".

A conflicting statement on page 5 directs that objections should be filed 25 days after issuance. To _.

adhere to the rule in 10 C.F.R. S the statement on page 49. DUPLICATE DOCUMENT Entire document previously entered into system under:

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• No. of es: /O goo wroo g fxh,