ML19340C438

Comments on LS Rubenstein Authority to Issue Notice of Opportunity for Hearing Re CP Extension.Nrc 801027 Response Fails to Demonstrate Presence of Such Authority.Intervenors Unable to Take Firm Position.Certification of Svc Encl

ML19340C438
Person / Time
Site:	Bailly
Issue date:	11/06/1980
From:	Vollen R IZAAK WALTON LEAGUE OF AMERICA, PORTER COUNTY CHAPTER, VOLLEN, R.J. & WHICHER, J.M.
To:	Buck J, Moore T, Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8011170358
Download: ML19340C438 (4)

Text

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& Business 3PI and Professional People for the Public Interest DM~. Teiephone: (312) 641-5570

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Alan S. Rosenthal, Chairma,c) .nomas S. Moore, Esq.

Atomic Safety and Licensing Ch , Atomic Safety and Licensing Appeal Board Appeal Board U.S . Nuclear Regulatory U.S. Nuclear Regulatory Commission Commiss ion Washington. DC 20555 Washington, DC 20555 Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Suclear Regulatory Commission Washington, .DC 20555 Re: In the Matter of Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1)

Docket No. 50-367 (Construction Fermit Extension)

Dear Mr. Chairman and Members of the Board:

This letter contains the comments of' Porter County Chapter Intervenors ca the staf f's response , in its letter of October 27, 1980, to the Board's inquiry concerning the delegated authority of L. S. Rubenstein to issue the Notice of opportunity for hearing in this matter (the " Notice"). Although the Board's Memorandum and Order of October 28, 1980, permitting the parties to comment -

on that response, directed that conrtants be filed and served no later than November 5, 1980, in a telephone conversation on that date with Ms. C. Jean Bishcp, Secretary to the Board, initiated by her in response to the und~rsigned's letter of November 3, 1980 to the Board, the undersigned was told that comments could be filed on November 6, 1980. Tais letter is being filed on that date.

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r November 6 1980 Page Two The staff response fails to. demonstrate in at least two respects that Mr. Rubenstein was authorized to issue and sign the Notice.

First, there is a failure to demonstrate an authorized delegation to Mr. Rubenstein or someone in his position. The staff response describes a chain of delegation of authority from the Commission to the Director of Nuclear Reactor Regulation, and.

from him to the Director, Division of Project Management, and from him to the Branch Chiefs within the Division. The first link in that chain appears to have been authorized by the Commission's regulations. The second link appears to be authorized by the NRC Manual, itself apparently a Commission-promulgated document, although that cannot be ascertained from the sections transmitted with Mr. Goldberg's letter of October 28, 1980 to counsel and the parties. The sole cited authority for the last link in the chain, however, the delegation from the Director, Divison of Proj ect Management to the Branch Chiefs, is the " Licensing Project Manager's Handbook". There ir a indication that that document, even if it contains the subdele3ation clained by the staff, was either authorizerf or approved by the Commission. Indeed, from the assertion in the staff's response that the. Handbook was " distributed to the Cc= mission",

it might be inferred that it was neither authorized nor approved by the Commission. To the extent that the staff response may be suggesting some type of authorization by acquiescence on the part of the Commission, we know of no principle of law under which distri-bution of a handbook to the Commission can be deemed to be authority from the Commission for what is contained in that handbook.

In short, assuming that Mr. Rubenstein was in fact an

" Acting Branch Chief" and assuming that an " Acting Branch Chief" has the same authority as a " Branch Chief", the staff response nonetheless fails to establish an authorized, valid delegation of authority to him to issue and sign the Notice.

Second, the staff response fails to demonstrate that the authority delegated includes the authority to do the act involved here - issue the notice. As we read it, with the exception of the last link in the chain, the subject matter of each of the delegations and subdelegations described in the staff response is the authority to issue reactor permits and licenses. . While the last link, the delegation to the Branch Chiefs, does specifi-cally refer to the authority to sign notices to the Federal Register, if that authority had not been delegated by the preceding links it could not validly be subdelegated by the last link. The sole authority in the staff response for the position'that delegation of authority to issue reactor permits and licenses includes the authority to issue notices, is the bald assertion that the latter is'a " concomitant duty" of the former. There. is not even an explanation as to the reasoning to support that assertion.

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Moreover. the assertion is made in an attempt to have it apply to amendments concerning"which prior notice of opportunity is not required because of no significant hazards consideration."

It should be noted that there has never been any support in this proceeding for the position that the requested amendment involves no significant hazards consideration. Finally, 10 CFR 52.105(a)(4), relied upon in the staff response, refers specifically, and only, to the Commission, not to any delegate, and it applies to a situation where no hearing is to be held.

In sum, the staff response fails to show that, even if authority had been validly delegated to Mr. Rubenstein, it included the authority purported to have been exercised in issuing the Motice.

At this juncture, based upon the limited time available to consider the matter and lack of access to all of the pertinent NRC inte nal documents, Porter County Chapter Intervenor< are unable tc take a firm position as to whether or not Mr. Rubenstein did have the authority he purported to exercise in issuing the Notice. We do believe, however, that the staff response fails to demonstrate that he did have that authority. We hope that these comments will be of assistance to the Board.

Respectfully submitted,

/

Robert J. <ollen One of the attorneys for Porter County Chapter Intervenors RJV:p r cc : All persons on attached Service List.

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APPEAL E0ARD 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 Co= mission 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 Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Thomas S. Moore George and Anna Grabowski Atemic Safety and Licensing 7413 W. 136th Lane Appeal Board Cedar Lake, IN 46303 U.S. Nuclear Regulatory Commission Dr. George Schult:

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 Michigan Federation 53 W. Jackson Blvd.

Dr. Richard F. Cole Chicago, IL 60604 Atcmic Safety and Licensing Board Panal Mr. Mike Olszanski U.S. Nuclear Reralatory Commission Mr. Clifford Meno Washington, D.C. 20555 Local 1010 United Steelworkers of Mr. Glenn O. Bright America Atomic Safety and Licensing 3703 Euclid Ave.

Board Panel East 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. .0036 Assistant Attorney General William H. Eichhorn, Esq.

Eichhorn, _sichhorn & Link

[h" n i one n a ContblDiv.

188 W. Randolph St. -Rm.2315 5243 Hohman Hammond, IN Afenue

~6320 Chicago, IL .60601 Docketin Diane B . Cohn, Esq . OfficeogandServiceSectior the Secretary William P. Schultz, Esq. U.S. Nuclear Regulatory Suite 700 Wa h tn D.C. 20555 a ington D .' C . 20555

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