ML19340D166

Response in Opposition to Petition for Review of ASLB 801120 Decision Denying Petition to Intervene Filed by City of Gary,In,United Steelworkers of America Local 6787 & Save the Dunes Council Et Al.W/Certificate of Svc

ML19340D166
Person / Time
Site:	Bailly
Issue date:	12/18/1980
From:	Shea K LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	NRC COMMISSION (OCM)
References
ISSUANCES-CP, NUDOCS 8012290235
Download: ML19340D166 (11)

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UNITED STATES OF A'1 ERICA _"'

's jj:7 NUCLEAR REGULATORY COMMISSION EN 5 T j .^. .C, C,.cr e , 3. .,. ..ape.r- j

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In the Matter of ) Docket No. 50-367 ~~

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NORTHERN INDIANA PUBLIC SERVICE

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) Extension) J  ? ^

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(Bailly Generating Station, ) December 18, 1980 Nuclear 1) )

RESPONSE IN OPPOSITION TO PETITION FOR REVIEW Northern Indiana Public Service Company (hereinaf ter ,

NIPSCO) hereby responds to the Petition for Review (herein-after, Petition) filed by the City of Gary, Indiana, United Steelworkers of America Local 6787, save the Dunes Council, the Bailly Alliance, and the Critical Mass Energy Project (hereinafter, petitioners). Petitioners seek review of the l

November 20, 1980, decision of the Atomic Safety and Licensing Appeal Board / denying petitioners leave to intervene in the l

l pending construction permit extension proceeding for Bailly Generating Station, Nuclear 1. The petition should be re-1

! jected.

Petitioners sought to litigate a single issue: whether it is possible to develop "an adequate evacuation plan to

• / Order of the Atomic Safety and Licensing Appeal Board, ALAB-619, November 20, 1980 (hereinafter, Appeal Board Order).

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protect people from the consequences of a nuclear accident" at the Bailly site. In our view, that contention is beyond the scope of this proceeding to consider extension of the construction permit / and the contention was correctly held to be inadmissible by both the Licensing Board and the Appeal Board.

The Commiss' ion has established standards by which to exercise its discretionary authority to review Appeal Board decisions. The governing' regulation, 10 C.F.R. S 2.786 (b) (4 ) ,

provides in part:

A petition for review of matters of law or policy will not ordinarily be granted unless it appears the case involves an important matter that could significantly affect the environment, the public health and safety, or the common defense'and se-curity, constitutes an important anti-trust question, involves an important pro-cedural issue, or otherwise raises impor-tant questions of public policy . . . .

We submit that the Petition does not meet any of those l standards. First, excluding emergency planning (or the i

L single aspect thereof upon which petitioners focus--1.e.,

evacuation) from litigation in this proceeding can have no l

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effect, significant or otherwise, on "the environment, the public health and safety, or the common defense and security."

Tne kinds of accidents for which emergency planning is re-quired simply cannot occur while the plant is under construc-i

• / See N1PSCO's Brief in Opposition to Appeals (September 15, 1980).

tion. Therefore, no deficiency in emergency planning for a plant under construction could threaten harm to the environ-ment, public health and safety, or the common defense and security. Furthermore, the Commission has established new emergency planning requirements which must be met by appli-cants for and holders of operating licenses and by applicants for construction permits. It has not established new require-ments which must be satisfied presently by holders of con-4 struction permits.

Second, petitioners have not alleged that "important antitrust question (s)" or "important procedural issue (s)"

are involved and it is clear that they are not. Therefore, if any of the standards of 10 C.F.R. 5 2.78 6 (b) (4 ) is to be met, justifying the grant of review, it must be that the matter at issue presents "important questions of public policy."

Petitioners' contention, as characterized by the Appeal Board below, encompasses this single issue:

the suitability of the Bailly site from

the standpoint of the feasibility of pro-viding protection to persons in the gen-eral vicinity should there be an accident

, during plant operation.

i (Appeal Board Order, p. 5.) In our view, this contention does not raise in important public policy question which would warrant the Commission's granting the Petition for Review.

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The issue of the evacuability of the Bailly site has been fully litigated in the prior construction permit proceeding. Both the Licensing and Appeal Boards have held the issue inadmissible in the extension proceeding. The Appeal Board recognized that the matter of the suitability of the Bailly site from a population density standpoint was litigated extensively in the construction permit proceeding, and its resolution in favor of the ap-plicant ultimately survived judicial re-view which reached the Supreme Court level.*/

Secondly, petitioners seek the opportunity to prove in the extension proceeding-that, because of the density of the population surround-ing the Bailly site, it will be impos-sible to devise an adequate evacuation plan to protect people from the conse-quences of a nuclear accident semphasis added).

(Petition, p. 1.) In their view, the site is unsuitable be-cause it is unevacuable. However, their basic premise is obviously invalid. It ignores the fact that, under Commission i

regulations, evacuation is not the only means of protection for the public. (See 10 . .R. Part 50, Appendix E.) Further-more, Commission regulations do not establish an "evacuability" test for assessing population density.

• / Appeal Board Order, p. 21. See also Appeal Board Order,

p. 2 n.l.

Petitioners' basic argument is that the feasibility of emergency planning should not await reexamination until the operating license application is considered; consequently, they contend that the question should be addressed in the extension proceeding--particularly in view of the alleged change in circumstances effected by the events at Three Mile Island. (Petition, p.3. ) That argument loses its force if there exist means of reexamining the feasibility of emergency planning prior to the operating license proceeding other than in the extension _ proceeding. Clearly such means do exist.

The Commission has already determined the method by which previously approved sites such as Bailly will be re-assessed in the post-TMI world. Its Advance Notice of Rule-making: Revision of Reactor Siting . Criteria has clearly es-tablished the vehicle for this reevaluation:

The Commission has directed the staff

[ to review existing sites in order tC ex--

i amine whether additional modifications in operating procedures, design, or i

equipment might be necessary . . . . For plants that have construction permits

. this review would be in the form of a report submitted to the Commission for its consideration in making case-by-case decisions.

(45 Fed. Reg. 50,350, 50,351 (198 0) . ) Thus, even if it is l

l assumed that the issue raised by petitioners involves an l

E important public policy question, the Commission has already determined an effective means of examining the matter, where appropriate, through the Staff. Petitioners have advanced l

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no arguments which would justify the adoption by the Commis-sion of another approach to reevaluation of the Bailly site.

There is, therefore, no need to grant the Petition for Re-view.

The Appeal Board pointed out that another potentially

" viable forum for the ventilation of petitioners' issue" is found in 10 C.F.R. S 2.206. (Appeal Board Order, p. 23.)

Petitioners argue that a Section 2.206 proceeding would be an insufficient vehicle for review of their proposed emer-gency planning contention. (Petition, pp. 5, 8-9.) The Com-mission need not reach this question in deciding to reject the Petition. However, we would note that petitioners are incorrect. The Appeal Board correctly held that Section 2.206 provides "an explicit, adequate and immediately available remedy" for those who claim that a valid basis for halting construction has risen. (Appeal Board Order, p. 23.) Peti-tioners complain that there is no right of appeal to the Commission from a Director's-refusal to institute a show cause proceeding. (Petition, p. 5.) This argument does not help petitioners' cause; as the Appeal Board stated, the

" sufficiency of an available remedy" does not depend upon "the extent . . . to which the determination of the initial.

decisionmaker is subject to further challenge on a higher level." (Appeal Board Order, p. 26.) In any event, judicial review of any adverse determination by the Director can be sought.

There is no question concerning petitioner's right to request a Section 2.206 proceeding. However, the Petition's implication (Petition, p. 9) that the Appeal Board's denial of the intervention petition was based upon an assumption that the pending Section 2.206 requests were unopposed on the merits is incorrect. Petitioners refer to the following Appeal Board statement:

Thus, as no one appears to dispute, the petitioners were authorized by Section 2.206 to request, and the Director is authorized by Section 2.206 to initiate, a show-cause proceeding to examine the -

very site suitability matter which is sought to be injected into the permit extension proceeding.*/

Obviously, the Appeal Board did not bace its decision denying intervencion on an assumption that the Director would grant the Section 2.206 petitions. The Board stated expressly:

{I]t obviously is neither appropriate nor possible for us to forecast what result will obtain; needless to say, that will depend upon the Director's weighing of all relevant factors in

( light of information in his possession which is not within our ken.**/

Although the merits of those pending petitions are not presently before the Commission, we might point out that, in our view, the Director's consideration should result in their denial for a number of reasons. Reassessing the acceptability of the Bailly site in a show cause proceeding with an adjudi-i catory hearing before a Licensing Board makes no sense when

• / Appeal Board Order, p. 24.

• • / Appeal Board Order, p. 25.

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the Commission has not established new standards of site ac-ceptability or minimum " evacuation times" which the Board could apply. Nor does it seem prudent to divert limited agency resources to such an exercise. We assume that such considerations prompted the Commission to decide earlier that previously approved sites would be reexamined by another method, as discussed above.* /

Conclusion The instant Petition for Review should be denied, since the matters which it raises do not meet the standards set forth in 10 C.F.R. 5 2.786 (b) (4 ) . Furthermore, we emphasize that petitioner's allegations of deficiencies in the proce-dure set out in 10 C.F.R. S 2.206 are clearly invalid and cast no doubt upon the Appeal Board's Order.

Respectfully submitted, LOWENSTEIN, NEWMAN, REIS &

AXELRAD l 1025 Connecticut Avenue, N.W.

Washington, D.C. 2 036 Py: fffl~

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Kathle'en H. Shea EICHHORN, EICHHORN,

& LINK 5243 Hvkman Avenue Attorneys for Northern Indiana Hammond, Indiana 46320 Public Service Company l

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-*/ NIPSCO's views concerning the merits of the pending Section 2.206 requests are stated in Comments furnished l to Mr. Denton by letter of November 20, 1930.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket No. 50-367

)

NORTHERN INDIANA PUBLIC SERVICE ) (Construction Permit COMPANY ) Extension)

)

(Bailly Generating Station, )

Nuclear-1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of Applicant's Response In Opposition To Petition For Review in the above-captioned pro-ceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand delivery, this 18th day of December, 1980:

Chairman John F. Ahearne U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Commissioner Victor Gilinsky U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Commissioner Peter A. Bradford U.S. Nuclear Regu3 story-Commission Washington, D. C. 20555 l

l Commissioner Joseph M. Hendrie

! U.S. Nuclear Regulatory Commission j Washington, D. C. 20555 i

Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. John H. Buck l Atomic Safety and Licensing Appeal Board l

U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Thomas S. Moore, Esquire

Atomic Safety and Licensing Appeal Board i U.S. Nuclear Regulatory Commission Washington,-D. C. 20555 l

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2-Herbert Grossman, Esquire U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Glenn O. Bright.

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard F. Cole U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Howard K. Shapar, Esquire -

Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Steven Goldberg, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555-Susan Sekuler, Esquire Environmental Control Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60601 Robert J. Vollen, Esquire c/o BPI 109 North Dearborn Street Suite 1300 i Chicago, Illinois 60602 Edward W. Osann, Jr., Esquire One IBM Plaza Suite 4600 Chicago, Illinois 60611 Robert L. Graham, Esquire One IBM Plaza 44th Floor Chicago, Illinois 60611 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana '46312 1

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Diane B. Cohn, Esquire William B. Schultz, Esquire Suite 700 2000 P Street, NW Washington, D.C. 20036 Mr. George Grabowski Ms. Anna Grabrwski 7413 W. 136th Lane Cedar Lake, Indiana 46303 Dr. George Schultz 807 East Coolspring Michigan City, Indiana 46360

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