ML19341D692

Notice That Porter County Chapter Intervenors Will Seek, If Necessary & Appropriate,Order Preventing Facility Const Commencement Unless Util Receives Valid Extension of Completion Date.Certificate of Svc Encl

ML19341D692
Person / Time
Site:	Bailly
Issue date:	03/31/1981
From:	Vollen R PORTER COUNTY CHAPTER INTERVENORS, VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8104080435
Download: ML19341D692 (7)

Text

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• UNITED STATES OF AMERICA %usym- 4 NUCLEAR REGULATORY COMMISSION O APR 3;ggg , O BEFORE THE ATOMIC SAFETY AND LICENSING BOARD N'-{.93

                                                                                .-:p        %w In the Matter of                   )
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                                             )        Docket No. 50-367 NORTHERN   INDIANA PUBLIC SERVICE  )         (Construction P g COMPANY
                                             )       Extension)             *%

(Bailly Generating Station, ) y Nuclear-1) ) e i OV ff 1 2 y_1u, MR

                                                                       . b 7198k Fe NOTICE OF INTENTION TO SEEK STAY
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Porter County Chapter Intervenors, by their atto ' hereby give notice to the Board and to all parties of their inten-tion to seek, if necessary and when appropriate, an order l preventing the corzencement of construction of the Bailly plant, unless and until NIPSCO receives a valid extension of the latest completion date in the Bailly construction permit, and until all legal proceedings in connection therewith are fully resolved. All construction at the Bailly site has been halted since September, 1977 pursuant to the Staff's direction, pending its  : review and acceptance of NIPSCO's plan to build the plant on a foundation of short pilings. (See letter of February 11, l 1978, from Roger S. Boyd, Director, Division of Project l Management, Office of Nuclear Reactor Regulation to Northern - Indiana Public Service Company, Attn: Russell J. Bohn.) At that time Bailly was, as it remains today, a hole in the ground, about 17, complete. The latest complet:fon date 5 in the Bailly construction permit is September 1, 1979. b b m. 9p .. e g s1,<o8435 6h  ?

l -. Section 185 of the Atomic Energy Act provides in part:

                        "Unless the construction or modification of the facility is co=pleted by the completion date,

• the construction permit shall expire, and all rights thereunder are forfeited, unless upon good cause shown, the Commission extends the completion date."

This proceeding is to determine whether NIPSCO can show good cause for-the extension it requests to 1989 and whether that extension should be granted. It is the position l of Porter County Chapter Intervenors that no construction can lawfully consnence before a valid extension is granted. Under the circumstances, including the fact that the permit i ! -will have expired more than two years prior to the proposed { consnencement of construction, neither section 9 of the

   -         Administrative Procedure Act, nor 10 CFR 52.109, authorizes construction prior to the issuance of a valid extension.

f On March 5,1981, the Staff wrote a letter to NIPSCO, transmitting its safety evaluation report of the short l pilings plan, indicating its acceptance of the plan and purporting to authorize NIPSCO to drive safety-related short piles. In the view of Porter County Chapter Intervencrs, that purported authorization is invalid - it violates the Atomic Energy Act, the Administrative Procedure Act and the National Environmental Policy Act. However, NIPSCO has comsd.tted to not commence construction for at least . j. l I i I . , _ . , . . -

six months after March 5, 1981; i.e., until at least September 5, 1981. (See letter dated March 11, 1981, from Kathleen H. Shea, one of the actorneys for NIPSCO, to Robert J. Vollen, one of the attorneys for Porter County Chapter Intervenors, a copy of which is attached hereto and marked " Exhibit A", and NIP 5CO's letter of November 26, 1980, to Harold R. Denton, Director, Nuclear Reactor Regulation, at p. 2.) Since NIPSCO has comitted to do voluntarily p ecisely what would be acheived by a stay order, Porter County Chapter Intervenors have not sought such an order. Under the unique facts surrounding Bailly and under the applicable law, it seems clear that all requirements for a stay pendente lite are present. Allowing construction to comence prior to a valid extension of the construction permit would violate the Atomic Energy Act, the Administrative Procedure Act and the National Environmental Policy Act. NIPSCO will not be able to show " good cause" for extension of its now-expired construction permit, and thus it is ( likely that Porter County Chapter Intervenors will prevail on the merits of their position. The interests of Porter County Chapter Intervenors would b- irreparably injured if construc' tion were to comence before such an extension. A

stay would involve relatively little, if any, harm *to l

NIPSCO, inasmuch as no construction will have taken place for almost four years. Protection of the public interest and of the inter,ests of Porter County Chapter Intervenors demands that construction not be commenced. , In the event that NIPSCO does not seek to commence construction there will, of course, be no occasion for Porter County Chapter Intervenors to seek a stay. However, in the absence of NIPSCO's continued agreement or the continued prevention of construction by some other means, Porter County Chapter Intervenors intend to seek an order which will prevent construction after September 5, 1981.

              . Such an order will be sought at a time sufficiently in advance of September 5,1981, to provide orderly presentation and consideration of Porter County Chapter Intervenors '

position.

                           ~The purpose of this notice is to eliminate any possible L                    ambiguity as to Porter County Chapter Intervenors' position and to eliminate any further question concerning why Porter County Chapter Intervencrs did not seek a stay immediately after the March 5, 1981, Staff letter to NIPSCO.

j Dated: March 31, 1981 Respectfully submitted, Robert J. Vollen ! Jane M. Whicher By: Robert J. Ybilen l Attorneys for Porter County Chapter l Robert J. Vollen l Jane M. Whicher Intervenors

109 North Dearborn L Suite 1300

! -Chicago, Illinois 60602 (312) -641-5570 l l-l I

law OFrtCES LOWENSTEIN. NEwM AN, RErs & AXEI.HAD 8025 CONNECTICVT AVENUE, N. W.

            ....ow..s....                         WAS HINGTON, D. C. 2OO36 e    a. ..we e.6. e. . es e   v..e. .a 2,.o                                202-S62-8400 e...s... . sa..
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       ..                                                    March 11, 1981
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Robert J. Vollen, Esquire c/o BPI 109 North Dearborn Street Suite 1300 Chicago, Illinois 60602

Dear Mr. Vollen:

This is to confirm that, in response to your inquiry, l I advised you today that a minimum of six months from l March 5, the date of the NRC Staff's letter concerning its ! review of the piles proposal, will elapse before actual l construction of the Bailly facility can commence. j Ve truly yours,

                                                                }Cl Kathleen H. Shea l                             KHS:vd i

l l i

Exhibit A l

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l l UNITED STATES OF AMERICA  %(mung  ;

                                                                                          , .W .

NUCLEAR REGULATORY COMMISSION fg APR 3 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD % ("e- .. U N

                                                                                  $ -)

In the Matter ox ) l ) 'I

NORTHERN INDIANA FusLIC ) Docket No. 50-367 SERVICE COMPANY ) (Construction Permit (Bailly Generating Station, ) Extension)

Nuclear-1) )

                                           )

CERTIFICATE OF SERVICE l I hereby certify that I served copies of the Porter County Chapter Intervenors ' Notice of Intention To Seek Stay on all persons on the attached Service List, by causing them to be deposited in the U.S. mail, first class postage prepaid, on March 31, 1981.

                                                              /
                                                        /

Robert J.fhollen One of the Attorneys for Porter County Chapter Intervenors Robert J. Vollen Jane M. Whicher l c/o BPI l 109 North Dearborn Chicago, Illinois 60602 (312) 641-5570

                                                                       ~

SERVICE LIST Herbert Grossman, Esq. George & Anna Grabowski Administrative Judge 7413 W. 136th Lane Atomic Safety & Licensing Cedar Lake, Indiana Board Panel 46303 U.S. Nuclear Regulatory Commission Dr. George Schult.z Washington, D.C. 20555 807 E. Coolsprint; Road Michigan City, Indiana 46360 Dr. Robert L. Holton Richard L. Robbins. Esq. Administrative Judge Lake Michigan Federation School of Oceanography Oregon State University 53 W. Jackson Boulevard Chicago, Illinois 60604 Corvallis, Oregon 97331 Mr. Mike Olszanski i Mr. Clifford Mezo l Dr. J. Venn Leeds Local 1010 - United Steelworkers l Administrative Judge of America 10807 Atwell 3703 Euclid Avenue t Hous ton, Texas 77096 East Chicago, Indiana 46312

          .                                               Steven C. Goldberg, Esq.

Office of the Executive Legal Director l Maurice Axelrad, Esq. U.S. Nuclear Regulatory Comission Kathleen H. Shea, Esq. Washington, D.C. 20555 Lowenstein, Newman, Reis, Axelrad and Toll Anne Rapkin, Asst. Attorney General 1025 Connecticut Ave., N.W. John Van Vranken, Environmental Nashington, D.C. 20036 Control Division 188 W. Randolph - Suite 2315 Chicago, Illinois 60601 William H. Eichhorn, Esq. Eichhorn, Eichhorn & Link Docketing & Service Section 5243 Hohman Avenue Hammond, Indiana 46320 Office of the Secretary U.S. Nuclear ~ Regulatory Commission Diane B. Cohn, Esq. Washington, D.C. 20555 i William P. Schultz, Esq. Stephen Laudig Esq. Suite 700 t 2000 P Street, N.W. 21010 Cumberland Road Noblesville, Indiana 46060 Washington, D.C. 20036 Atomic Safety & Licensing ~ l Board ~ Panel e ! U.S. Nuclear Regulatory Commission Washington, D.C. 2055a i Atomic Safety and Licensing t l Appeal Board Panel I j U.S. Nuclear Regulatory-Commission f Washington, D.C. 20555 _ t.. i N V . 4 l - l r

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