ML19338D356
| ML19338D356 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 09/15/1980 |
| From: | Osann E, Vollen R IZAAK WALTON LEAGUE OF AMERICA, PORTER COUNTY CHAPTER, OSANN, E. W., VOLLEN, R.J. & WHICHER, J.M. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-CPA, NUDOCS 8009230008 | |
| Download: ML19338D356 (14) | |
Text
' ^^
gl YK/
[9 Q
c=
$ USNac UNITED STATES OF AMERICA 2 SEPf7 N >
e 6 81 b Seestoy NUCLEAR REGULATORY COMMISSION -
[88** t BEFORE THE ATOMIC SAFETY AND LICENSING 4 APPE e?
)
In the Matter Of )
) Docket No. 50-367 NORTHERN INDIANA PUBLIC )
SERVICE COMPANY ) (Construction Permit (Bailly Generating Station, ) Extension)
Nuclear-1) .
BRIEF OF PORTER COUNTY CHAPTER INTERVENORS IN SUPPORT OF APPEALS OF THE CITY OF GARY, INDIANA et al. AND DR. GEORGE SCHULTZ FROM ORDER DENYING PETITIONS TO INTERVENE Porter County Chapter of the Izaak Walton League of
~
America, Inc. ; Concerned Citizens Against Bailly Nuclear Site; Inc.; James E. Newman and Businessmen for the Public Interest, Mildred Warner (" Porter County Chapter Intervenors") , by their attorneys , submit this brief in support of the appeals of the City of Gary, Indiana; United Steelworkers of America Local 6 Save the Dunes Council; the Bailly Alliance and the Critical Mass Energy Project (" Gary Petitioners") and of Dr. George Schultz from Conference i
the August 8,1980 Order Following Special Prehear ng ;
(" Order") , which denied their petitions
- for intervention in this construction permit extension proceeding.
- The Order (pp. 36-37) admitted Porter County Chapter d pursuant Intervenor file as parties to this proceeding, and this brief is submitte Although a.brief to 10 CFR 52.714(a) , which provides that any party may direct in . support of or in opposition to another party's appeal.
Porter County Chapter In.tervenors did not submit a contention l r raising the site evacuability issue presented by this fappea , ou interest in the entire subject and ultimate outcome of this this appea pro-ceeding make it appropriate that we submit our support o D503 50092se oo L
h _
I. INTRODUCTION 9
This proceeding is to determine whether Northern Indiana Public Service Company ("NIPSC0") has shown " good cause" for the amendment to the Bailly construction permit which it seeks, extending the latest completion date to December 1, 1987. (Section 185 of the Atomic Energy Act, 42 U.S.C. 52235; 10 CFR 550.55(b).)
The Licensing Board ruled that both the Gary Petitioners and Dr. Schultz have standing to intervene in this. proceeding. However, it denied their petitions to intervene solely on the ground that their contentions, which the Board charac terized as "regarding evacuation planning and alleged site unsuitability," are outside the scope of this proceeding. (Order, pp. 40-41, 41-42). Gary Petitioners' contention, set forth in " Contention of the City of Gary, Indiana, United Steelworkers of America Local 6787, Bailly Alliance, Save the Dunes Council and Critical Mass Energy Project,"
filed February 26, 1980, is as follows:
"Whether realistic evacuation and emergency plans can be implemented to adequately protect the populations surrounding the proposed site of the Bailly One Nuclear Generating Station in the event ;
of a nuclear accident."
Dr. Schultz' contention was viewed by the Licensing Board as being the same as that of the Gary Petitioners, except that the Board recognized that he emphasized that there can be no effective l evacuation of the Indiana State prison in the event of a serious i nuclear accident. (Order at 41).
_ s
(
' The Order discusses , at some length (pp.10-29) , the Licensing Board's-view of the appropriate scope of the matters to be considered in a good cause proceeding such as this , and attempts to articulate a standard as to that scope. In denying appellants' evacuability contentions , however, the Board ignores that discussion I]
i Instead, the entire basis and those standards (pp. 29-32, 40-42).
for the. Board's ddcision is that:
[1}n 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 (in the Provisional Order, issued May 30, 1980] to author-ize a re-litigation of a matter that was already determined by a licensing board in the construction 100 permit proceeding on standards in 10 CFR Part that have not yet been changed. (Order pp. 30-31) .
The Board found confirmation for its decision in Section 108 of Public Law 96-295 (June 30,1980) , in the Commission's May 30, 1980 !
Order in Consolidated Edison Comoany 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 50-386, and in the advance notice of rulemaking contained in 45 Fed. Reg. 50350 (July 29, 1980), entitled " Modifications of the Policy and Regulatory Practice Governing the Siting of th; clear Power Reactors" (Order, pp. 31-32) .
In the following sections of this Brief we show that the First, we show in Licensing Board erred and must be reversed.
Section A that the Board misread the contentions as seeking to In fact, the contentions litigate broad site suitability issues.
raised by the Gary Petitioners and Dr. Schultz seek to litigate only the issue of site evacuability, a far more narrow and specific issue than site suitability generally. The authorities relied on by the Board to support its ruling simply are irrelevant to the
issue of the propriety of the evacuability contention. Next, in Section B we show that the proper scope'of.this proceeding, under Section 185 of the Atomic Energy Act, 10 CFR 550.55(b) , and this Board's ' decision in Cook, requires consideration of issues which could not have been heard at the construction permit stage The evacus-
~
and which should be heard now in the public interest.
bility contentions clearly fall within that scope. Finally, we show in Section C tnat even under the standard articulated by the Licen-sing Board, the evacuability contentions are pryper matters to be heard in this proceeding. The Board said that issues which are not directly related to the delay in construction or do not arise from the reasons for the extension or from the extended perio'd of construction, are within the scope of a good cause proceeding if they must be heard in advance of the operating license proceeding in order to protect the public interest or intervenors' interest.
In other words, intervenors must make a. prima facie showing that the matter will not be sacisfactorily resolved by the new requested latest completion date. (Order, pp. 28-29). These contentions !
concerning the evacuability of the Bailly site meet that test and I
should be admitted in this proceeding.
l 1
II. , ARGUMENT A. The Licensing Board Misread the Contentions Submitted, l and the Authorities Cited in Support of its Denial of j the Contentions are Inapoosite.
In contrast to the narrow evacuability contentions raised by Dr. Schultz and the GaIy Petitioners , the State of Illinois and Porter County Chapter In;ervenors submitted contentions more broadly O
C
$ raising issues concerning the unsuitability of the Bailly site.
' The Licensing Board failed to acknowledge the difference. The Licensing Board lumped together all of these different contentions under the heading of " Site Suitability" (pp. 29-32) , and ruled them inadmissible in this proceeding. The Board's misunderstanding of these contentions as being identical is illustrated by its denial of the 5 tate of Illinois' contention on site unsuitability in reliance upon its reasoning in denying the Gary Peticitioners' and Dr. Schultz' contentions on evacuability (Order, p. 65) .
The consequence of the Board's confusion of the two separate issues of site suitability and evacuability is that. its reasoning and the authoritics upon which it relies simply are inapposite to the matter of evacuability. In other words, the justifications Contention 6 of the Supplemental Petition of the State of Illinois, pp. 13-14, filed February 20, 1980, adopted by Porter County Chapter Intervenors in Joint Intervenors' Notice of Joinder and Adoption, filed February 27, 1980, roads as follows:
"6. The application for Construction Permit Extension is in-adequate in that there is no updated discussion of cl.e Bailly site. Among other siting questions such as proximity of the proposed plant to centers of large population, and effects of the construction on the ecology of the site, the Board should require a showing that the now acknowledged " unfavorable physical characteristics of the site" will be compenseted for by the " appropriate and adequate compensating engineering safe-guards" 10 CFR fl00.10(d). This is especially important as part of the showing of " good cause". Given NIPSCO s prior inability to adequately design engineering techniques that (1) compensate for inadequacies of the site such as the difficult geologic configurations and (2) do not create additional hazards or problems on the site c.g. dewatering complications, and soil changes attributabic to pile driving. No construction permit extension should be issued by the Board until NIPSCO ,
shows that that siti.n l accord with 10 C.F.f.g Part of100, the Regula_ory Bailly ranctor will Guide beNUREG 4.7, in !
0625, NUREG 0499 and any other NRC policies and regulations that control siting criteria."
which the Board offers for its denial of these contentions go, f While we dispute at most, to the site suitability contentions. ,
i '
i f the the adequacy of the offered justifications for reject on o his Q site suitability contentions , that issue is not present.ed by t f appeal.
, On the issue which is presented by this appeal - whether f this pro-the evacuability contentions are within the-scope o ceeding - the Qrder of the Licensing Boa,rd simply offers ** no ;
c justification for its rejection of'the contentions. ;
The principal groun'd for the Board's rejection of the I contentions is that it viewed them as an efforb to relitigate100, the question of whether the Bailly site complies with 10 CFR Part since the the standards in which have not yet been changed
~However, regardless of whether construction permit proceeding.
i that would or would not be a proper basis to reject the s te cannot be a basis to reject the evacua-suitability contentions , it 100 of the regulations simply is not ;
bility contentions. Part l directed to emergency evacuation planning and, therefore, a conten-ffort to tion concerning such planning cannot be viewed as an e litigate compliance wich it. __
l
- Because the site suitability contentions were raised by parties l i l who have been admitted to the proceeding to litig ;
1s not appealable. 10 CFR 52.714a. l denial of then is not discussed here.
- The only possible claim for justification in the i evacuation plans will be considered in detail at the operat ngand license stage" (pp. 29-30) the operating license proceeding" is a -matter to be considered at Of course, the mere fact that a subject will be con-(p. 40).
sidered at the operating license stage is not, by itself, a reason why that subject Such aisposition outsidewould the scope of this goodwith be inconsistent. causethepro-standard ceeding.
articulated by the Licensing Board as well as with the proper scope of this proceeding, as discussed in Section B, infra _.
e-h - i.'
. The Licensing Board compounded its error '.n failing to understand that the evacuability contentions are different from the site suitability contentions by relying upon three develop-ments occurring since the issuance of its Provisional Order on May 30, 1980. Each of those developments -- Section 108 of Public Law 96-295, the Commission's May 30, 1980 Order in Indian Point, and the July 23, 1980 advance notice of rule-making -- deals with site suitability, not with evacuability. The Commission's case-by-case review noted by the 30ard (pp. 31-32) and described in the advance notice, 45 Fed. Reg. 50350, is a review of site suitability and design and equipment modification for certain existing sites.
It in no way signifies the Commission's desire to preclude liti-gation of evacuability in this proceeding. Thus, even assuming that those develentants indicated a " desire" by Congress and the Commission '.r.at the issue of the suitability of the Bailly site not be heard in this proceeding, they would not be a basis for rejecting the quite different issue of evacuability of the Bailly site.
In sum, the Board has misunderstood the contentions in issue and, as a result, has offered no authority that is supportive of its ruling rejecting evacuation planning.
I i
i 1
- Indeed, the advance notice explicitly refers to the separate matter of emccgency planning requirements. (45 Fed. Reg. 50350,
.luly 29, 1980).
l u J
g 2 - N 4
B. The Evacuability Contentions of the Gary Petitioners and Dr. Schult are Within the Scope of this Construction Permit Extension Proceeding and Should Have Been Admitted.
The construction permit for the Bailly facility, issued in May, 1974, includes a latest completion date of September 1, 1979. That date passed more than a year ago without any substan-tial construction having taken place. The facility presently is only one percent complete and NIPSCO has applied for an amendment '
extending the latest completion date to December 1,1987.
Section 185 of the Atomic Energy Act,442 USC 52725, provides in part:
The construction permit shall state the earliest and latest dates for the completion of the con-struction or modification. Unless the construction or modification of the facility is completed by the completion date , the construction germit shall expire, and all rights thereunder se forfeited, unless upon good cause shown, the Commission extends the completion date.
Accordingly, unless NIPSCO receives the extension it seeks, the Bailly plant cannot be built.
While it is clear that NIPSCO must show " good cause" --
not for having failed to complete construction on time, but for obtaining the required Commission approval for an extension to allow completion of the facility -- it is less clear precisely what constitutes " good cause". Neither the statute nor the Commis-sion's regulations provide an unequivocal answar.
10 CFR 550.55(b) states: "(b) If the proposed construction or modification of the facility is not coupleted by the latest con-completic: data, the permit saall expire and all rights thereunder shall be forfeited. Provided, however, That upon good cause shown the Commission will c.stend the completion date for a reasonable period of time. The Commission will recognize, among other things, developmental problems attributable to the experimental na"tre of the facility or fire, flood, explosion, strike, sabotage, comestic violence, enemy action, an act of the elements, and other acts beyond the control of the permit holder, as a basis for extending the completion date "
.g.
,9 _ '
q y/ 3,
. ~.
! In Indiana and Michigan. Electric Co. (Donald C. Cook Nuclear Plant, Units ~1 & _2), hLIB-119, 6 AEC 414 (J.973) , this Board stated that whether " good cause" for an extension exists depends in each instance on the facts of the particular case. -
"[T]he factors which the adjudicator should take into account in making its ' good cause' determination should...be influenced by the ih ,
totality of the circumstances .wliich confront it." ,6 AEC at' 420.
't
- The .special circumstances surrounding the Bailly plant ,
and the request for the construction permit ' extension, are totally unique. The permit expired a year ago with or.ly 17. of the plant completed. The period of the requested extension is, longer than the original construction period in the origir.al permit and no construction has taken place for over thrt.e years. The design of the foundation for the plant still has not, finally been agreed upon.
Coupled with the lack of construction progress are a number of significant developments whic'h have taken place since the permit was issued,in 1974 and which, therefore, could not have been
- considered at the construction permit hearings. Indeed, in light of the recent developments in the area of nuclear power, such as NUREG-062'5, and the new Commission regulations concerning emergency _
w In Cook / the Appeal Board, on the basis of the circumstances of tha-particul,ar case, saffirmed a Licensing Board determination limitine the chope of the,'! good cause" inquiry to the reasons assigned for the need for the extension. 6 AEC at 422. Among the most important of thagparticular~ circumstances of that case was the fact char ~at the time of the good cause proceeding, construction of the plant was substantially completed and the operating license hearing had already been noticed. Id. at 419. Thus the Board could perceive no possible prejudice'.to intervenors by deferring safety issues to that hearing. Id. at 420. The opetating' license hearing on
' Bailly , if one is ever held , 'is at least 7 years away.
Y '
- 6
9 planning (45 Fod. Reg. 55402, August 19, 1980) , for examplo, it i l
is doubtful that a construction permit could be issued today for l
~ ~
the'Bailly facility. ,
-Under the totality of the particular circumstances surrounding the Bailly plant, a common sense approach to " good cause" requires consideration of.significant health and safety issues arising subsequent to the issuance of_the construction permit. The issue of site evacuability clearly f alls within this scope.
On the other hand, it is very difficult to perceive any reason why that issue should not be considered at this stage.
J To consider it would not be the relitigation of any issue previousi litigated at any stage of the Bailly proceeding. Since there will be a good cause hearing in any event, there will be little incre-mental. litigation burden on NIPSCO or any of the other parties. In-short, the evacua5111ty contentions submitted by the Gary Peti-tioners and Dr. Schultz should have been admitted. The Licensing Board's ruling denying them is in error.
I C. Even Under the More Restrictive Scope of This ,
Proceeding Articulated by the Board, the Evacuability !
Contentions Should Have Been Admitted. .
The Licensing Board articulated a more narrow standard for the scope of this construction permit extension proceeding.
As to issues such as evacuability, which are not directly related <
to the delay in con.struction or do not arise from the reasons for ;
the extension, or do not arise from the prolonged period of construction, the Board said they are within the scope of a " good cause" proceeding if they. must be heard in advance of the ci erating !
license proceeding in order to protect the public interest or 9 - .- -- . . . ,
s
e the intervenors' interest. The test as to whether the issue must
/
be heard in advance of the operating license hearing is whether intervenors can make a prima facie showing that the matter will not be satisfactorily resolved by the new requested latest completion date. (Order at pp . 28-29)~.
While we disagree that the Board has articulated the appropriate standard, the evacuability contentions meet this test, and a prima facie showing is evident. The contentions should therefore have been admitted even under the Board's restrictive standard.
The thrust of the contentions submitted by the Gary Petitioners and Dr. Schultz is that it is impossible to develcp a workable evacuation plan for the Bailly site. Because the site is not evacuable, good cause for the extension of the construction permit cannot be shown.
The evacuability of a site is dependent on a number of factors; for example, demography, typography, land. characteristics and access routes. See 10 CFR 550.47(c)(2) , 45 Fed. Reg. 55409 (August 19, 1980). It is these very characteristics which pre-clude the development of a workable evacuation plan by the latest requested completion date or, indeed, at all. Because of the location of the Bailly plant in proximity to a steel planc employ-ing 8,500 workers, a National Lakeshore having large numbers of people in transient and scattered populations , and Lake Michigan as the northern boundary of the plant site, effective evacuation is impossible. These and~other factors which make evacuation impossible will not be changed by the latest completion date.
This alor.e is sufficient to meet the prima facie showing required 1 l
-~
~- 7
.~
- by the Board. This issue must be heard now, before the plant is l
built. At the operating license hearing, NIPSCO must submit detailed evacuation plans. 10 CFR 6550.33(g), 50.47, 50.54, 45
?
Fed. Reg._55408 (August 19, 1980). To wait until that hearing to consider the feasibility of evacuation is to ignore the inevitab8
~
effect.on the_ decision-maker of the fact that the plant is already built at a cost of over- $1 billion. Cf. , In the Matter of Public Service Company . of New Hampshire (Seabrook Station, Units 1 and 2) , _
7 NRC 952, 959. (1978) . 2.-
+
III. CONCLUSION The Licensing Board erred in its denial of the evacuabili contentions submitted by the Gary Petitioners and Dr. George Schultz. This aspect of the Board's Order should be reversed, and remanded with directions to admit the Gary Petitioners and
.Dr. Schultz as intervenors in this proceeding and to admit their contentions.
DATED: September 15, 1980 Respectfully submitted, Robert J. Vollen Jane M. Whicher Edward W. Osann, Jr.
Robert L. Graham By:
Robert J. V611en Attorneys for Porter County Chapter Intervenors
- It cannot be contended that the issue lacks sufficient ripeness for present consideration. A study for the Federal Emergency Management Agency by Wilbur Smith & Associates,'An Independent Assessment of Evacuation Times for Bailly (June 1980)(Vol. II) at.p. 13 scates that-the NIPSCO evacuation plan, prepared by Lester B. Knight and~ Associates Inc. , is scheduled ~to be published in September 1980, and that the Indiana State Department of Civil Preparedness has developed an evacuation plan for Bailly scheduled
- to be reviewed by the NRC and FEMA in July 1980.
~ Robert J. Vollen ,
i Ja'ne M. Whicher '
}.-
109 -N. Dearborn S t.
Chica 60602 my !
-(312)go, IL 641-5570 ,,
W s je Edward W. Osann,-Jr.
g , ,
One IBM Plaza l Suite 4600 5 Sc% C l
$ -3 60611
./'y k i
Chicago, IL (132) 822-9666 q O )
Robert L. Grahcm l
One IBM Plaza V #
Chicago, IL 60611 m (312) 222-9350 CERTIFICATE OF SERVICE I hereby certify that I served copies of the foregoing Brief upon each of the persons named on the attached Appeal Board Service List by causing them to be deposited in the U.S. Mail, first class postage prepaid, l 1
this 15th day of September, 1980. l
}
}*
~Attornet l
i h
)
1
-. ..-- . _ . . . _ . . ; _r . . c _ - _ . i
~_ : - . . - . - . '
} APPEAL BOARD SERVICE LIST Alan S. Rosenthal, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Board _
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 _ Washington, D.C. 20555 Dr. John H. Buck Atomic Safety and Licensing
-Atomic Safety and Licensing Appeal Board Panel Appeal Board U.S. Nuclear Regulatory U.S. Nuclear P.egulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Thomas S. Moore George _and Anna Grabowski Atomic Safety and Licensing 7413 WZ.136th Lane-Appeal Board Ccdar Lake, IN 46303 U.S. Nuclear Regulatory Commission Dr. George Schultz Herbert Grossman, Chairman 807 E. Coolspring Rd..
Atomic Safety and- Licensing Michigan City, IN 46360 Board Panel U.S. Nuclear Regulatory Commission Richard L. Robbins, Esq.
Washington, D.C. 20555 Lake Michi'gan Federation 53 W. Jackson Blvd.
Dr. Richard F. Cole Chicago, IL 60604' Atomic Safety and Licensing Board Panel Mr. Mike Olszanski U.S. Nuclear Regulatory Commission Mr. Clifford Mezo Washington, D.C. 20555 Local 1010 United Steelworkers of Mr. Glenn O. Bright America Atomic Safety and Licensing 3703 Euclid Ave.
Board Panel Eas t Chicago , IN 46312 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Steven C. Goldberg, Esq.
Office'of the Executive Maurice Axelrad, Esq., Legal Director Kathleen H. Shea, Esq. U.S. Nuclear Regulatory Lowenstein,.Newman, Reis, Commission Axelrad and Toll Washington, D.C. 20555 1025, Connecticut Ave., N.W. Susan Sekuler, Esq.
Washington, D.C. 20036 Assistant Attorney General
" William H. Eichhorn, Esq . John Van *Vranken, Esq. ,
Eichhorn , Eichhorn & Link Environmental Control Div.
5243 Hohman Avenue 188 W. Randolph St. -Rm.2315 Hammond, IN .46320 Chicago, IL 6060.
Di ane B . Cohn , Es q . Docketin and Service Sectior William -P. Schultz, Esq. - Office o the Secretary Suite. 700 U.S. Nuclear Regulatory 2000 P. Street, N.W. Commission Washington, D.C.
20555 Washington, D.C. 20555