ML19338F350

Reply in Opposition to NRC & Util 800822 & 28 Responses, Respectively,To State of Il Newly Filed Contentions.Changes in Regulations & ACRS Consideration of Safety Questions Form Basis for Admissibility.Certificate of Svc Encl

ML19338F350
Person / Time
Site:	Bailly
Issue date:	10/14/1980
From:	Fahner T, Sekuler S ILLINOIS, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8010200184
Download: ML19338F350 (11)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD .

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In the Matter of ) N

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NORTHERN INDIANA PUBLIC ) Docket Nos. 50-367 Construction Permit Extension Ba yG a ing Station, Nuclear 1) ) , . -

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G ! CfJ INTERVENOR STATE OF ILLINOIS REPLY TO STAFF AND NIPSCO RESPONSES ON NEWLY FILED CONTENTIONS The People of the State of Illinois, by its attorney, TYRONE C. FAHNER, Attorney General of the State of Illinois hereby reply to "Nipsco's Response tc Revised Contentions" dated August 28, 1980 and to "NRC Staff Position on Newly Filed Contentions..." dated August 22, 1980.

NIPSCO raises a question as to the admissibility of certain contentions which are not supported by a " convincing prima facie showing that the safety matter alleged will not be satisfactorily resolved by the new completion date of the facility. . ."(citing " Order Following Special Pre-Hearing Conference"). Among the contentions that NIPSCO has placed in the category which would require such a showing for admission as contentions are: safety issues related to new NRC requirements stemming from the re-evaluation of rules and regulations made necessary by the accident at TMI; _ 'nt fuel storage 8010200 G

2-ATWS; and the Mark II containment.

Intervenor contends that changes in regulations, and active and ongoing consideration of safety questions by the ACRS, NRC Staff and other official. arms of the NRC constitute a prima facie showing sufficient for admission of contentions. Similarly, the-.very existence of the spent fuel reprocessing moratorium and the resulting inundation of applications for license amendments to increase storage capability of spent fuel pools serve as sufficient bases to support Intervenor's allegation that the design of the Bailly. reactor, as it exists at present, is outmoded, and that without further review the Board cannot be " reasonably assured" of plant safety.

If the Board should find that these allegations do not constitute an adequate showing for the purposes of this proceeding Porter County Chapter Intervenors IPCCI] have requested sufficient discovery to. enable them to establish a prima facie showing that

. the . safety matters cannot be timely resolved ["PCCI. Arguments in Support of the Admissibility of ' Newly Filed Contentions'" filed August 28, 19 8 0 at 2 ~.'] . Illinois-does not find PCCI's request unreasonable or unpermitted by the Commission's-Rules and j

-Regulations.'

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3-The rules for judging admissibility of contentions'hsve

-been clearly stated'by the. commission in its regulations and in case law.

t Normally under 10 C.F.R. 52. 714 (a) a petitioner's burden regarding contentions at the special pre 1 hearing conference stage is merely to present valid issues open to factual dispute. Although a licensing board may under certain circumstances reject contentions on legal grounds on the pleadings alone,~it is not permitted to make determinations concerning the merits of contentions otherwise admissible.

Northern States Power Comoanr_(Prairie Island 1 and 2) , ALAB 107, 6 AEC 188 (1973);_DuQuesne Light Co. (Beaver Valley, Unit 1) ALAB 109, 4 AEC 244 (1973). Where contentions involve mixed questions.of law and fact they are not appropriate for determination as a matter of law ~on the pleadings alone. Tenessee Valley Authority -(Clinch River Breeder Plant) , LBP 76-14, 6 NRC 430 (1976).

At this point in the proceeding any facts alleged must be taken as true; the merits of the contentions are not at issue '

.. j nor is the determination of adequacy of contentions at the special l l

pre-hearing conference stafe a substitute for consideration of motions for summary' disposition as provided by 10 C.F.R. 52.749. Nowhere in the regulations is it: stated that Intervenors bear the burden of_-

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.provi ng t he truth _or:surficiency of' facts alleged in1 contentions. :l l

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In fact,1the Licensing Appeal Board has held: '

...it is not the function of a-licensing Board

.to reach the merits of any. contention contained...

(in .aut intervention petition) . . .Moreover, Section 2.714 does.not require the petition to detail the evidence which-will be-offered in support of each contention... Needless.to say, it will be open L

to-both the applicant and the regulatory staff to move,' pursuant to Section 2.749 for summary disposition...The existence of this summary disposition procedure -- which~was adopted at the same time as the contentions provision of the present Section 2.714 -- is a further indication of the error'in the. view of the applicant and the regulatory staff that an intervenor'must provide the evidentiary foundation for its contention (i.e. , demonstrate i that it has merit) before it is admitted into E the proceeding.

Mississippi Power and Light Company (Grand Gulf j Nuclear Station, Units 1 and 2) , ALAB-130,-

l 6 AECL423, 426 (1973).

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h The standard for admission of contentions.under 10 C.F.R.

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i- S2.714(a) does not comprehend a prima facie showing if such a showing would'eause the Board to be making a determination on the merits.

Illinois does not interpret the Board's statement to require such a_ factual showing;'if however.the Board did intend to impose'such-a burden:on the intervenors,'it would-appear to be only equitable-

. to allow l the I intervenors an opportunity to avail themselves of discovery;andftoJallow the-filing of affidavits.to support-their.

allegations. . Note,Econtrary to'thel notion stated in "NIPSCO's l Reply..." filedf3eptember 26, 1980 and in'the Staff's " Comments..."~

L, Jfiled October'8, 1980,. discovery would not serve the-purpose of w

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framing contentions"; this has already been done.- Discovery.would

merely:give Intervenorsi the information, now unavailable, necessary

' to' rebut the Staff's and Applicant's attacks on the merits of the

] iexisting contentions.

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The Federal Rules of Civil Procedure amply support the

proposition that' discovery is legitimate and necessary where t-intervenors must meet a higher burden of proof than that required ,

by the Commission's Regulations for the admission of contentions.

~The need for a prima: facie showing which would entail analysis.of

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the merits can be analogized to either a' motion for judgment on the pleadings as provided in Rule 12(c) or to a summary judgment (Rule 156) or. summary disposition 10 CFR S2.749.

• Rule - 56 (f) ~ clearly l

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stat es . that discovery may;be made available or the Court may- make F "such other order as'is just" to give the opponent to the' motion

.a far opportunity.to. support his cause of action.

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- As we have stated in our previous filings the " newly

. compiled contentions" filed by intervenors PCCI- and ILLINOIS clearly ~

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-* Rule' 12 (c) treatsnalmotion for judgment.onethe pleadings which

.-incorporates < review..of mattersS outside the' pleadings as 'a' motiori 1for summary'jddgment.under Rule.56. . All: parties are:given'a-

" reasonable opportunityfto'present;all material made pertinent

-;to such-a.. motion by; Rule?56."

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-cfit.within the scope of hearing' defined by the Board in its order.

Applicant should not be allowed to narrow this scope.by attempting to increase :the threshhold requirements for contentions that fall within the scope. This concept should befconsidered particularly in regard to issues' raised by the-Applicant in stating their reasons for delay, e.g. TMI. If the1 burden of proof on intervenors is.to be increased by the Board's determination, Intervenors should not be deprivedLof their rights to adequately support, through affidavits, after discovery, the allegations.in their contentions.

Applicant has also asked the Board to reject certain of the newly filed contentions on~the-grounds that they lack specifity or because the contention is a " statement of fact". NIPSCO's 1

Response to Revised-Contentions" at 5. Intervenor asserts that a discernible issue exists in every contention filed. That certain aspects of_a contention which has-not been ruled upon at a special- l prehearing conference may require additional clarification is not sufficient reason for outright rejection of that contention.

In making its pre-hearing' determinations as to the admissibility'oficontentions'c licensing board bears no affirmative I Jobligation.to create contentions for a petitioner or to transform patently bad-contentions if;c icceptable contentions. Commonwealth-Edison:Co. (ZionL Statikd 3 ,,1 22 6, . 8 AEC 3 81 - (1974 ) . "

However, where~an' issue,1 clearly open to factual adjudication, can be discerned

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somevhere within the-four. corners of submitted pleadings, a licensing

board is not freefto' disregard'it." Tennessee Valley Authority

- (Brown's Ferry' Nuclear-Plant,-Units 1.and 2)-LBP 76-10, 6 NRC 209 (1575).- 'In response to motions or at the prehearing conference the Board may, f and'indeed Itas. an obligations to, help the intervenor clarify those contentions :which may 'not yet be sufficiently refined to allow for efficient litigation. 10 C.F.R. 52.752 specifies that

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- among the purposes of pre-hearing are the simplification, clarification and specification of the issues; and the necessity or desirability of amending the p1'eadings.

If the newly filed contentions are not yet as refined-as 4 others previously filed in.this case, that could be the' result of their having.been originally filed by incorporation by reference.

In making judgments on'these contentions it must be borne in mind that it was Intervenor's intent to use this technique as visualized by the regulation's 10 C.F.R. 550.32 to simplify the application-and eliminate repetitions by ~"incoporat(ing) by reference information

- contained in previous' applications, statements or reports filed with the.commisalon.

Rather than dismiss the contentions out of hand the Board has an obligation to fully review, and if necessary, record each-

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contention?otherwise acceptable under 10 C.F.R. .S2.714(al. so that

. all: appropriate issues may- be- heard. Alternatively, Intervenors

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should be afforded an~. opportunity.to file' amended contentions.

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-The previous incorporation by reference.also.is. .

' relevantito NIPSCO's allegation 1that the. questions of reasonable

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- assurance of safety'have'not'been raised'in this hearing prior to August 28,_ 1980.

[NIPSCO'sE Reply. . .' filed September 26, 1980 atf5, f.n.**]. 'The original filing of these contentions wherently questions whether,.given each of thel safety questions in issue, " reasonable

- assurance" of.an ultimately safe construction can be found.

For the-foregoing reasons, ~ Illinois prays this Board to admit each of:its~ newly filed contentions in this proceeding.

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

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BY:- '.,-x..~

SUSXN N. SEKULER ~

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Assistant Attorney General.

Environmental' Control Division OF COUNSEL:-

MARY JO MURRAY

- Assistant Attorney' General '

- Environmental Control Division 1188 West'Randolph, Suite 2315L Chicago,-Illinois;60601' (312):793-2491

-DATED:- Octolar-14, 1980 t

i-1 CERTIFICATE OF SERVICE I hereby- certify that on this ':14th day. of October, 1980-I served copies of=the fore ~ going' Motion to Filed Instanter and Intervenor State -of _ Illinois Reply c to Staff and NIPSCO Responses-on' Newly Filed-Contentions, upon each of thel persons. named'on the attached. service list, by causing copies to-be deposited-t in'the U.S. . mail in envelopes properly address'ed and sealed, first' class postage. prepaid.

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i ' MARY JO MURRAY l

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• SERVICE M -

_ (N"RDIERN INDIANA PUBLIC SERVICE BAIIIX GENERATING STATIGO

! Herbert Grcssman,.Esq.Chai man.

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Robert J. Vollen, Esq.- Atcmic Safety & Licensing.

{ Atcmic Safety &.' Licensing Board c/o BPIJ Apoeal Board Panel

Panel .

.109 North Dearborn U.S. Nuclear Regulatory Ccmuc i U.S.J Nuclear Regulatory Comu.) -Chicago,: Illinois 60602' Washington, D.C. 20555

' Washington, D.C.?20555.

I Dra Richard F. Cole Michael.I. Swygert,-Esq.

i Atomic Safety.& Licensing- 25 East Jackson Blvd. Docketing-& Service Section

- Board Panel

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Chicago, Illinois 60604'. Office of the Secretary U.S. Nuclear Regulatory Ccmn

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iU.S.LNuclear Regulatory Ccmn. s iWa=hinoton,D.C.-20555f Washington,'D.C. 20555-fMr.[GlennO.: Bright-  : W4114am H. Eichhorn, Esq.

PAtcmie Safety & Licensing Board Eichhorn, Morrow & Eichhorn Panel' 5243 Hohmvn Avenue-

U.S. Nuclear Regulatory Ccmm. - Lunami, Inda.ana 46329. .

Washington, D.C.! 20555 1 Edward Ossan, Jr. , Esq.- Stephen Iaudig, Esq.

Suite 4600 445 N. Pennsylvania Street .

One IBM Plaza Indianannlia, Indiana 46204 i

' Chicago, Illinois'60611

George & Anna Grabowski

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i 7413 W. 136th Lane Diane B..Cohn L. Cedar Iake, Indiana 46303: . Suite 700 F .2000 P. Street,-N.W.

Washington, D.C. 20036 fDr.-George Schultz- Richard Ii. Robbins, Esq.

' 110 California Street . . ..

Lake Michigan Federation Michigan City, Indiana 46360 :53 West' Jackson Blvd. _ ,

&imgo,. Illinois 60604-Kathleen H.-!Shea, Esq. .. Steven Goldberg Imenstein, Newman, Reis, Counsel'for the NBC Staff Axelrad'& Toll: U.S. Nuclear Regulatory.Ccmu.-

2 1025 Connecticut Ave., N.W. ... Washington,'D.C. 20555 l 7

Wa=Mngton, :D.C. 20036'-

Robert Graham,'Esq.- ' Atcznic Safety & . Licensing -

Board Panel I One IBM Plaza

i44th Moor- .

U.S.- Nuclear Regulatory Cczm.

Chicago, - T11inois s60611 - iWashington,'D.C. 20555 ~

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' UNITED'S'ATES'OF T AMERICA I

NUCLEAR. REGULATORY ^COf21ISSION BEFORE THE ~ ATOMIC SAFETY 1 AND LICENSING BOARD In~the Matter _of- )

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NORTHERN INDIANA PUBLIC ) Docket Nos. 50-367 SERVICE. COMPANY ).

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

MOTION TO FILE INSTANTER Intervenor, the People of the State of Illinois, moves this Board for leave to file instanter'the "Intervenor State of Illinois Reply'to Staff land.NIPSCO Responses on Newly Filed Contentions"' attached hereto. This Reply was filed one business day beyond the.due date set by the Board because both attorneys assigned to this case were occupied with matters to which they were-previously committed.

Respectfully submitted, TYRONE.C. FAHNER-Attorney General State of II.inois BY:- t ._-

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' MARY JC RAY

.Assiskd Attorney h{eneral

Enviro ntal Control Division OF' COUNSEL:

-SUSAN N. SEKULER Assistant' Attorney Ge'neral I . Environmental 1 Control Division

188 ? Wes t Randolph~,JSuite 2315.

Chicago,' Illinois 60601' (312) 793-2491

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