ML19340C430

Submits Brief Comments Per 801105 Telcon Re LS Rubenstein Authority to Issue Notice of Opportunity for Hearing.City of Gary,In Et Al Does Not Take Position Re Effect on Validity of Proceeding.Finding of Good Cause for Extension Necessary

ML19340C430
Person / Time
Site:	Bailly
Issue date:	11/06/1980
From:	Cohn D COHN, D.B.
To:	Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8011170312
Download: ML19340C430 (2)

Text

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3 DIANE B. CoHN .

' ATTOftNEY AT LAW g 2000 P STREET. N W . EUITE 700 I

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Ms. C. Jean Bishop, Seccetary Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Conmission Washington, D.C. 20555 Re: In the Matter of Northern Indiana Public Service Company (Bailly Generating Station, Nuclear - 1) Docket No. 50-367

Dear Ms. Bishop:

In accordance with our telephone conversation yesterday, in which you clarified the Appeal Board's interest in the parties' views as to the sufficiency of the reasons assigned for the Staff's conclusion that Mr. L. S. Rubenstein possessed the authority to-issue the notice of opportunity for hearing in this proceeding, the City of Gary, et al. submit these brief comments.

The Gary petitioners question whether the Staff has demonstrated a proper delegation to Mr. Rubenstein. According to the Staff's letter of October 27, 1980, the only document existing at the time the notice was issued which was cited as conferring such authority on the Branch Chiefs of the Division of Project Management was the Licensing Project Manager's Handbook (December 30, 1977). Unlike the explicit delegations of authority to the Director of NRC and Director of the Division of Project Management which are contained in the sections of the NRC Manual cited in Mr. Goldberg's letter, the " Handbook" con-tains no language indicating a further delegation to the Branch Chiefs. The absence of a specific " delegation of authority" in the Handbook is emphasized by the explicit use of such delega-tion language in Mr. Denton's subsequent letter of October 16, 1980, which was, of course, issued after the November 26, 1979 notice of opportunity for hearing in this proceeding. ...._._.._.,..-

Moreover, while the NRC Manual was issued ~b7 the Commission, it is not clear who issued the Licensing Project Manager's Hand-book. From Mr. Goldberg's letter, we know only that the Hand-book was " distributed" to the Commission. Thus, even if the Handbook can be construed as containing a delegation, it is un-clear whether the Handbook was issued by an authority with power to do so. .~

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Ms. C. Jean Bishop, Secretary Atomic Safety and Licensing Appeal Board Page two While we therefore question the sufficiency of the reasons assigned in the Staff's response, the City of. Gary, et al.

do not at this time take a position on the question of what effect a defective notice would have on the validity of this proceeding. We do note, however, that NIPSCO and the NRC Staff have taken the position that, should the Staff approve NIPSCO's short pilings proposal, NI?SCO would be free to resume construc-tion without any determination of the merits of their position

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in this extension proceeding. We assume their position would be the same even if the proceedings which have occurred thus l

i far are found to be defective and substantial delays ensue be-fore any good cause finding is made. It is the position of the City of Gary, et al. that the Atomic Energy Act would pro-hibit NIPSCO from beginning construction and the NRC from i

authorizing them to do so in this case without NRC first making a finding of good cause for an extension. See Section 185 of j

the Atomic Energy Act.

Sincerely, hh .

Diane B. Cchn DEC/ms cc: Service List

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