ML19341A888

Response Opposing Porter County Chapter of Izaak Walton League of America,Inc 801224 Motion for Reconsideration & Admission of Denied Contentions or Certification to Aslap. Certificate of Svc Encl

ML19341A888
Person / Time
Site:	Bailly
Issue date:	01/26/1981
From:	Shea K EICHHORN, EICHHORN & LINK, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8101280641
Download: ML19341A888 (10)

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NUCLEAR REGULATORY CO:SiISSION /*$.7 . .cg * [r r .r "*4 BEFORE THE ATOMIC SAFETY AND LICENSING BOAfD

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In the Matter of ) Docket No. 50-I6' UORTHERN INDIANA PUBLIC SERVICE ) (Construction Permit COMPANY ) Extension)

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PORTER COUNTY CHAPTER INTERVENORS i  ;

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On December 24, 1980, the Licensing Board issued a Memo-randum and Order which denied certain contentions filed by intervenors Porter County Chapter of the Izaak Walton League of Anerica, Inc., et al. (hereinafter PCCI) and the State of Illinois (11ereinafter Illinois). The intervenors have filed pleadings seeking reconsideration of the denials and admission of the contentions or, if the Board declines those requests,

" certification or referral" to the Appeal Board of the ques-tion of admissibility of the contentions. Northern Indiana Public Service Company (NIPSCO) opposes intervenors' requests and files this Response.

• Porter County Chapter Intervenors' (1) Objections to Memo-randum and Order of December 24, 1980, and Motion for Re-consideration, and (2) Motion for Certification or Referral (January 9, 1981) (hereinafter PCCI Objections).

• • Objections to Memorandum and Order of December 24, 1980 and Motion for Certification (January 14, 1981) (herein-after Illinois Objections).

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I. There is no need to reconsider the Board's rulings in the Memorandum and Order of Dece=ber 24, 1980.

Intervenors' principal argument is that the Licensing Board somehow " misconstrued" (PCCI Objections , p. 2) or

" misinterpreted" (Illinois objections, p. 2) the Appeal Board's decision in Northern Indiana Public Service Co.

(Bailly Generating Station, Nuclear-1), ALAB-619, 12 NRC (November 20, 1980) and therefore applied an improper stan-dard in rejecting the contentions. The charge is invalid.

The Licensing Board correctly perceived the Appeal Board's holding: the scope of a proceeding to consider extension of a construction permit generally covers issues which arise from the reasons assigned to the extension and which cannot abide the operating license proceeding. That has been and is the test.

The Appeal Board's decision in ALAB-619 confirmed the rule laid down in Indiana and Michigan Electric Co. (Donald C. Cook Nuclear Plant), ALAB-129, 6 AEC 414 (1973). In ALAB-t 619, the Appeal Board examined the rejected contentions there l

in question (which sought to raise fundamental questions of site suitability) and acknowledged that the contentions were not admissible under "the precise test" employed in Cook.

(Slip op. at 22.) The Appeal Board then went un to consider l whether the fundamental nature of the questions raised in the rejected contentions warranted their admission, notwithstanding the Cook test--and concluded that it did not, particularly in i

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view of the availability of another forum through invocation of 10 C.F.R. 5 2.206. There was "no compelling reason" to hear such contentions in the extension proceeding. (slip op, at 28.)

In our view, the contentions here at issue are similarly inadmissible under Cook, there is no " compelling reason" to hear those contentions in this proceeding, and the result re-corded in the December 24, 1980, Memorandum and Order is proper.

"Short pilines contentions." Intervenors argue that these contentions meet both parts of the Cook test. We agree that they arise from the reasons assigned for the delay but, in our view, the Board correctly concluded that the issue can abide the operating license proceeding.

PCCI's criticism of the Board's conclusion rests upon the allegation that "[t] hat conclusion is largely a decision on the merits of the contentions . . . ." (PCCI objections,

p. 5.) The allegation is incorrect. The Board has not decided whether the "short pilings" are acceptable; it has only con-cluded that the decision can abide the operating license pro-ceeding. Certainly, nothing which intervenors submitted be-fore or af ter the December 24 Memorandum and Order casts doubt At one point (Illinois Objections, p. 3), Illinois appears to suggest that there is no need for the Board to conclude that the short pilings issue cannot abide the operating license stage because ALAB-619 nolds that "intervenors' assertions to that effect must be taken as true . . . . "

In other words , Illinois argues the "cannot abide" test can be met through its mere recital by an intervenor. This reading would render the test meaningless and must there-fore be rejected.

j on that. As the Board accurately summarized the pleadings at that point:

Intervenors appear to assert merely that short pilings are a somewhat innovative design for nuclear fa-cilities, which require close scrutiny by a licensing board or the N.R.C.

Commissioners.

(Memorandum and order, slip op, at 6.) Since then, the " strong-est" assertion devised is the Illinois argument that if that [short pilings] proposal were one which could abide the operating license stage, the Staff would not have stayed further construction pending evaluation . . . .

(Illinois objections , p. 4.) That non sequitur is unpersua-sive. As we have previously argued, the Commission, fully aware of the Staff's on-going evaluation of the piles proposal, decided that the appropriate forum for any hearing on the piling question is the operating license proceeding. (Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1),

CLI-79-ll, 10 NRC 733 (1979).) Even if the Licensing Board is not bound by that determination (and we believe it is bound),

it can reach a contrary decision only on the basis of new in-formation. None has been identified by the intervenors.

• NIPSCO's Response to Board Questions with Respect to Pile Foundation, pp. 4-7 (August 25, 1980); NIPSCO's Objections to Order Following Special Prehearing Conference, pp. 3-6 (August 18, 1980); NIPSCO's Objections to Provisional Order Following Special Prehearing Conference, pp. 13-17 (June 30, l 1980); NIPSCO's Response to Supplemented Petitions to Inter-i vene, pp. 49-51 (March 7, 1980).

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In addition, the Commission's determination is ample confirmation--if any were needed--that there is no " compel-ling reason" to hear these issues at this time.

" Newly-filed contentions." These contentions satisfy -

neither part of the Cook test--they do not arise from the reasons assigned to the extension and there is no reason to believe that they cannot abide the operating license proceed-ing. Intervenors do not dispute that assessment. Neverthe-less PCCI argues for their admission on the basis that each of these contentions presents a matter of great significance which was not and could not have been con-sidered in the construction permit hearing.

(PCCI Objections, pp. 3-4.) Illinois' standard for admissi-bility appears to be simply that the issue be "a compelling matter of safety." (Illinois Objections , p. 3.) These stan-dards are non-standards, which intervenors would justify with incantations from Cook concerning a " common sense" approach and "the totality of the circumstances." The argument can-not prevail. The Appeal Board's ultimate conclusion in its refusal to allow site suitabili:y contentions to be litigated in this permit extension proceeding warrants emphasis:

We have been provided no compelling reason why it is not totally appro-priate in such circumstances to leave petitioners' concerns for pos-sible consideration in a show-cause proceeding. Indeed, that conclusion comports with the " common sense" ap-preach championed in Cook. As there

observed . . . a permit extension proceeding is not convened for the purpose of conducting an open-ended inquiry into the safety and environ-mental aspects of reactor construc-tion and operation. Yet that is pre-cisely what the proceeding would be-

> come were an open invitation given to those in petitioners' situation to freight it unnecessarily with matters far removed from those events which led to its commence-ment.

(ALAB-619, slip op. at 28-29 (footnote omitted).)

Similarly, "no compelling reason" has been identified by the intervenors for litigating in this permit extension pro-ceeding the assorted contentions now urged. In fact, there is no such reason and the Licensing Board should decline to reconsider its December 24 Memorandum and Order.

II. The Board should also refuse to " certify" and/or " refer" to the Appeal Board its rulings on the rejected contentions.

Legal standards established by the NRC governing re-ferrals for interlocutory review have not been met. NRC regulations authorize referral where a " . . . prompt deci-sion is necessary to prevent detriment to the public interest or unusual delay or expense . . . .

(10 C.F.R. S 2.730 (f) .)

Some of the vagueness of that language has been dispelled by

• Since the Licensing Board has already made its ruling, the request for " referral" appears to be the appropriate course.

(Consumers Power Co. (Midland Plant), ALAB-152, 6 AEC 816, 818 n. 6 (1973).) In any event, we know of no basis upon which to conclude that different standards apply to "certi-fication" than to " referral."

7-i 4 the Appeal Board which can agree or decline to undertake the interlocutory review. (Public Service Co. of New Hampshire (Seabrook Station) , ALAB-271, 1 NRC 478 (1975); Commonwealth Edison Co. (Zion Station), ALAB-ll6, 6 AIC 258 (1973).) The Appeal Board declines to undertake interlocutory review un-less the ruling sought to be reviewed "either (1) threatened

. . . i==ediate and serious irreparable i= pact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner." (Public Service Co. of Indiana

(.v.arble Hill Nuclear Generat'nq Station), ALAB-405, 5 NRC 1190, 1192 (1977) (footnote omitted) . ) Application of that standard to the rulings which are complained of here can only lead to rejection of the referral request. PCCI may, of course, ap-peal the rejection of its contentions after the Licensing Board's Initial Decision is rendered. If the rejection was improper, the impact will then be alleviated by admission of the contention and (presumably) remand to the Licensing Board for hearing. That is to say, impact can certainly be alle-viated by a later appeal. One may call the system inefficient but '_his particular " inefficiency" is inherent in the rule against interlocutory appeals. Furthermore, the rejection of the contentions does not affect the " basic structure of the proceeding in a pervasive or unusual manner." It does not, for example, " call into question the integrity of the

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r 8-i Commission licensing proceeding." (Pennsylvania Powe: and Light Co. (Susquehanna Steam Electric Station), ALAP-613, 12 NRC 317 (1980).)

PCCI suggests (p. 10) that certification la justified i

simply because "it]his is only the second contested con-struction permit extension proceeding ever held, and the only one concerning a plant in the very preliminary stages of construction." That argument must necessarily fail. The firm, long-established Commission policy is against inter-locutory appeals. Mere novelty does not satisfy the stan-dard previously identified and cannot serve to justify an exception to that policy.

Moreover, the question of the scope of this particular proceeding has been dealt with by the Appeal Board in ALAB-619.

Indeed, it was that Appeal Board decision to which the Licensing Board looked for guidance in ruling upon the rejected conten-tions. Thus, it is not necessary nor would it be helpful to i

have the Appeal Board again consider the scope issue.

We therefore urge the Board to deny the motions to certify or refer to the Appeal Board the question of admitting these contentions-Respectfully submitted, LOWENSTEIN, NEWMAN, REIS

& AXELRAD 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 By: -

Kathleen H. Shea l EICHHORN, EICHHORN l & LINK 5243 Hohman Avenue Attorneys for Northern Indiana Hammond, Indiana 46320 Public Service Company

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

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NORTHERN INDI ANA PUBLIC SERVICE ) (Construction Permit COMPANY ) Extension)

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(Bailly Generating Station, ) January 26, 1981 Nuclear-1) )

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CERTIFICATE OF SERVICE I hereby certify that copies of NIPSCO's Response in Opposition to Objectives and Motions Filed by Porter County Chapter Intervenors and Illinois 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 26th day of January, 1981:

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 Regu'latory Commission Washington, D.C. 20555 Docketing and Service section Office of the Secretary U.S. Nuclear Regulatery 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, quire Environmental Co.. trol Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60601 Robert J. Vollen, Esquire c/o BPI 109 North Dearborn Street Suite 1300 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 Diane B. Cohn, Esquire William B. Schultz, Esquire ,

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

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Mathleen H. Shea LOWENSTEIN, NEWMAN, REIS

& AXELRAD 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036