ML19344A931

Motion for Reconsideration of ASLB 800807 Special Prehearing Conference Order Re Admission of Contentions.Urges Correct Application of Cook Test Re Scope of Proceeding.Short Piles Issue Must Be Rejected.Certificate of Svc Encl

ML19344A931
Person / Time
Site:	Bailly
Issue date:	08/18/1980
From:	Eichorn W, Frantz S, Shea K EICHHORN, EICHHORN & LINK, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-CPA, NUDOCS 8008250032
Download: ML19344A931 (18)

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NUCLEAR REGULATORY COMMISSION Office of tw secrety, .

00cketing \ San l BEFORE THE ATOMIC SAFETY AND LICENSING BOAR N I t-In the Matter of ) Docket No. 50-367

) (Construction Permit NORTHERN INDIANA PUBLIC SERVICE ) Extension)

COMPANY )

)

(Bailly Generating Station, ) August 18, 1980 Nuclear-1) )

)

NIPSCO'S OBJECTIONS TO " ORDER FOLLOWING SPECIAL PREHEARING CONFERENCE" I. Introduction On August 7, the Licensing Board in this proceeding is-sued its " Order Following Special Prehearing Conference"-/

which sets forth a number of rulings concerning admission of petitioners as parties to the proceeding and admission of con-tentions as issues in the proceeding. Pursuant to NRC regu-lations (10 C.F.R. S 2.751a(d)) and the Order (p. 69), NIPSCO files these objections to the Order.

We note'that the Board previously issued a Provisional Order Following Special Prehearing Conference, requesting the filing of any objections to that Provisional Order. On June 30, 1980, NIPSCO filed its Objections to Provisional Order Following Special Prehearing Conference (hereinafter "NIPSCO's Objec-tions"); the Staff and many petitioners did so as well. In

• / The order was served by mail by the Office of the Secretary on August 8, 1980.

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view of this previous round of argument, which the Board con-sidered in developing the final order dated August 7, there is little need for detailed presentations. Our objections, therefore, will be brief and will incorporate by reference the arguments we have made in earlier filings.

II. Scope of Construction Permit Extension Proceeding A. The Board's Determination of the Standards Governing Definition of the Scope of the Proceeding our views concerning the scope of a proceeding for extension of a construction permit have been expressed before and we shall not belabor previously made arguments. We refer the Board to the following pleadings:

NIPSCO's Objections to Provisional Order Follow-ing Special Prehearing Conference, pp. 2-4, 5-13 (June 30, 1980);

NIPSCO's Response to Supplemented Petitions to Intervene, pp. 20-25, 48-72 (March 7, 1980);

NIPSCO's Response to Petitions Filed in Response to Notice of Opportunity for Hearing, pp. 38-48 (January 18, 1980).

Two points deserve emphasis: First, the Board's Order fails to apply one element of the test established in Indiana and Michigan Electric Co. (Donald C. Cook Nuclear Plant, ALAB-129, 6 AEC 414, 420 (19 7 3 ) --i . e . , in order to be admissible, an issue must arguably cast serious doubt upon the ability of the applicant to constrdct a safe facility. Second, and more im-portantly, the Board's Order several times erroneously restates another element of the Cook test. The Order asserts that Cook

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excludes from consideration in an extension proceeding only the issues which "should abide the operating license proceed-ing." (Order, p. 15, lines 8-9, emphasis added; also, Order,

p. 16, lines 22-23; p. 22, lines 16, 19.) In fact, this test is quite different:

In the final analysis, then, the question here comes down to whether the reasons assigned for the extension give rise to health and safety or environmental issues which cannot appropriately abide the event of the environmental review-facil-

.ity operating license hearing. Put another way, si must decide whether the present consideration of any such issue or issues is necessary in order to protect the interests of intervenors or the public interest.

(Cook, supra, 6 AEC at 420, emphasis added.) This difference is perhaps subtle but certainly substantive. We respectfully urge the Board to reconsider its position and apply correctly each element of the Cook test.

B. Consideration of Short Piles Issue

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No definitive ruling has yet been made concerning the admissibility of contentions seeking to raise this issue 1> and it is therefore premature to object formally. However, we would like to refer the Board to our earlier discussion of this matter:

NIPSCO's Objections to Provisional Order Follow-l ing Special Prehearing Conference, pp. 13-17 (June 30,1980) ;

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l NIPSCO's Response to Supplemented Petitions to i

Intervene, pp. 49-51 (March 7, 1980).

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1 At the risk of being thought excessively argumentative, we respectfully reiterate that, contrary to the Board's view, the Commission's decision on the request for a hearing on the shcrt piles' proposal (Northern Indiana Public Service Co.

(Bailly Generating Station-Nuclear 1), CLI-79-ll, 10 NRC 733 (1979)) did not "merely reaffirm . . . the licensing board's implicit determination that, as of the time of the construc-tion permit procecling, the design of the pilings and the health and safety or environmental issues arising therefrom should probably await the operating stage." (Order Following Special Prehearing Conference,.p. 22, emphasis in original.)

The Commission was ruling in 1979--six years after the evi-dentiary record was closed in the construction permit proceed-ing--on then-current requests for a hearing on the use of "short piles." The Commission sought the technical views of the ACRS on the then proposed design of pilings and foundations, not on the design (or lack thereof) which had existed during the construction permit review. The Commission concluded that, at the construction permit stage, the " principal architectural l

! and engineering criteria" for the piles foundation of the l

Bailly nuclear plant had been established but development of the design for that pile foundation had been " consciously--and l appropriately--left for later determination" during construction.

(10 NRC at 742.) It went on to find that the "short piles" are proposed as a resolution of one aspect of foundation design,

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not a change from an earlier plan. Therefore, no construction permit amendment and no hearing were legally required'. But the Commission went on to conclude as a substantive matter that the use of short piles presented no safety or other is-sues which would even "suggest that there would be any bene-fit in injecting an interim public hearing at this time."

d.)

( I_d Now this Licensing Board must determine whether the short piles raises any issue "which cannot appropriately abide" the operating license proceeding. Admittedly the Commission made its decision last December; but what has happened since then that could support a conclusion differing from the Com-mission's? We submit that petitioners have identified nothing upon which a reversal could stand and that, in fact, nothing has changed. The situation is thus the same as that addressed by the Appeal Board in Cook. The Board noted that safety is-sues associated with design changes / are normally considered in the operating license proceeding.

It is hard to fathom why a different re-sult should obtain simply because of the fortuitous circumstance that a combination of events--only one of which involved de-sign changes--did require applicants to seek an extension for completion.

(Cook, supra, 6 AEC at 421.)

-*/ The Bailly situation, of course, involves design develop-ment rather than changes in design.

. We again recommend that the Board withdraw its questions and reject the contentions which seek to raise the short piles issue.

C. Matters Not Related to Prolonged Construction The Board has also considered whether issues "not di-rectly related to the delay in construction and not arising from the reasons assigned for the extension" can nevertheless be admitted in a construction permit proceeding. However, the

, Board did not decide the matter for it found no such issue "that must be heard in advance of the operating license proceed-ing to p otect the interests of the intervenors or the public."

(Order, p. 29.) Since there is no ruling, we have no formal objection. However, we wish to record our disagreement with the Board's theory and reference our prior pleadings:

NIPSCO's Objections to Provisional Order Follow-ing Special Prehearing Conference , pp. 17-26 (June 30, 1980);

NIPSCO's Response to Supplemented Petitions to Intervene, pp. 48-72 (March 7, 1980).

III. Board Rulings on Contentions A. The Board's Order admits Porter County Chapter Peti-tioners' Contentions 1 and 3 / and Illinois Contention 2- /

-*/ These are found in Joint Intervenors' First Supplement to Petition for Leave to Intervene, pp. 3-6, 7-8 (February 26, 1980).

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This is found in Supplemental Petition of the State of Illinois, pp. 4-6 (February 20, 1980).

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to the extent that they assert that the reasons for the delay are other than offered by Permittee, that the actual reasons do not constitute good cause for the extension, and that the period of ex-tension requested is unreasonable.

(Order, p. 53.)

The language of the contentions is imprecise, rambling, and diffuse; it would appear certain that there will be dis-putes as to what is within an admitted contention and what is the permissible scope of discovery. To minimize or avoid such

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problems and to provide requisite specificity, we urge that the Board ma'.;e clear that, as to any alleged " actual reason" for the delay other than those identified by NIPSCO, the ad-mitted contention s limited to the specific reasons listed by Porter County Chapter Petitioners and Illinois. Without such specificity, in our opinion, the contention does not satisfy 10 C.F.R. S 2.714 and the scope of discovery could be-come unlimited.

In Contention 6, / Porter County Chapter Petitioners have identified two reasons which, they contend, caused the delay in construction -- i.e., need for power and increare in the estimated cost of building the facility. Technical competence l

has also been identified as a cause of delay by Porter County l

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Joint Intervenors' First Supplement to Petition for Leave to Intervene, pp. 13-14 (February 26, 1980).

Chapter Petitioners / and Illinois. ** / Since no other

" reason" has been alleged and no basis for any other " reason" identified, the contention should not be left as an ambiguous invitation to an unlimited fishing expedition.

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g. at 14-15.

• • / Supplemental Petition of the State of Illinois, p. 13 (February 20, 1980).

B. Technical Competency The Board has admitted PCCP Contention 7 and Illinois Contention 5 dealing with the question of technical competency of NIPSCO, its contractors, and subcontractors "[t]o the extent that Petitioners seek to establish that the delay was attri-butable to technical incompetence which brings into question Permittee's ability to construct a safe facility . . . ." The Order further states "[w]e specifically do not admit the por-tion of Illinois 5 which requires that NIPSCO and its contrac-tors prove in this proceeding that they are technically com-petent in order to receive the extension. " (Order, p. 60.)

Thus, it is clear that the admitted contention is much more narrow than the overall review of technical qualification of an applicant at the construction permit stage. However, the precise breadth of the issue is not entirely clear from the language of the Order and additional clarification is requested.

We assume the Board intended only to permit PCCP and Illinois to attempt to demonstrate that the conduct of Permitee, its contractors and subcontractors with respect to the piles foun-dation and slurry wall was a cause of the delay in completing construction prior to the construction permit expiration date and that such conduct demonstrates a lack of technical compe-tency to construct a safe facility. We request clarification of the Order with respect to this admitted contention and a specific statement limiting the discovery and evidence on this

issue to the conduct of the Permittee, its contractors, and subcontractors which allegedly caused the delay.

C. Dewatering Effects The Board's Order limits contentions regarding de-

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watering effects / to "the incremental effects on the inviron-ment from the additional period of dewatering." (Order, p. 55.)

We therefore understand that those portions of the dewatering contentions which, on the face of their language, have no con-nection with " incremental effects" are necessarily rejected.- /

We also understand that the sealing of the ash ponds is not an issue in this proceeding unless and until the Petitioners es-tablish that the calculations referenced by the Board "did not fully eliminate the ro. charging effect of the ash pond seepage."

(Order, p. 59.) Finally, we understand that sealing of the ash ponds may thereafter be an issue in this proceeding only as it relates to the incremental effects of the prolonged period

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PCCP Contentions 4 and 5 (Joint Intervenors' First Supple-(February 26,

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ment to Petitions for Leave to Intervene 1980)); Illinois Contention 3 (Supplemental Petition of the State of Illinois (February 20, 1980)); Grabowski, p. 1980));7 (Grabowskis' Second Supplementary Petition (April 2, Local 1010 Contention 10B (Steelworkers Local 1010 Petition to Deny Permit (December 20, 1979)).

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These include paragraphs B. and E. and the first sentence of paragraph C. of Illinois Contention 3 (Supplemental Peti-tion of the State of Illinois, pp. 9-11 (February 20, 1980)); B.,

the fourth paragraph of PCCP Contention 4 and paragraphs C., and E. and the first sentence of paragraph D. of PCCP Contention 5 (Joint Intervenors' First Supplement to Peti-tiens for Leave to Intervene, pp. 11-13 (February 26, 1980)).

of dewatering, and that the sealing of the ash ponds in and of itself has no significance to this proceeding. If these understandings are correct, we have no objection on these points; if not, we request clarification.

D. Explicit Rulings on All Contentions The Board's Order does not rule explicitly on every contention. The status of many can be inferred, but we suggest that the petitioners and we are entitled to unequivocal rul-ings in order to facilitate appeals and discovery. We there-fore request modification of the Order to rule on all conten-tions. We have prepared the following list of contentions which it appears that the Board has not explicitly addressed and we indicate the disposition which we presume the Board has made based upon its other rulings.

1. December 20, 1979, Petitions (Porter County Chapter and Illinois) 7 a), c), f) , g) (TMI-related matters) :

rejected (on basis stated (Order, p. 61) by Board in rejecting PCCP 9, Illinois 4, Local 1010 4).

l 7 b) (cost) :

rejected (on basis stated (Order, p. 59) by 1

Board in rejecting PCCP 6).

7 d), e) (siting) :

rejected (on basis stated by Board at pp. 29-32 of the Order).

8 (SER required) :

rejected (on basis stated by Board at pp. 24-29) .

9 (EIS required) :

deferred (on basis stated (Order, p. 61) by Board in connection with Contentions PCCP 10 and Illinois 1).

10 (NIPSCC-cited reasons for failure to complete are not real reasons and do not constitute " good cause";

requested period of extension is not reasonable) : ,

rejected, PCCP 1 and 3 and Illinois 2 are admitted instead (Order, pp. 52-54).

2. February 20, 1980, Supplement (Illinois) 3.E. (impact of dewatering on seismic response,- load-bearing capacity , and core melt) :

accepted in part (limited to incremental ef- .

fects of dewatering by Order, pp. 54-55);

rejected in part (core melt aspect rejected by Order, p. 61).

7.D. (re-review of plant design in light of new regu-lations , Reg. Guides , etc. ) :

rejected (on basis stated by Board at pp. 24-29) .

8 (TMI-related matters , unresolved safety issues) :

rejected (on basis stated (Order, p. 61) by Board in rejecting PCCP 9, Illinois 4, Local 24-29).

1010 4 and on basis stated by Board at pp.

3. December 20, 1979, Petition of Local 1010 3 (Post-accident monitoring) 5 (Unresolved safety issues) 6 (ATWS) 7 (ALARA) 8 (Spent fuel pool size) 9 (Material failures) 10A (Lakeshore legislation) 11 (Increased costs of construction) 12 (Energy conservation):

all rejected (implicit in Board's discussion at pp. 38-40 of the Order; see also pp. 24-29, 59-60).

4. Grabowski's Supplement / dated February 23, 1980, and Second Supplement dated April 2, 1980 1 (Judicial stay is not " good cause") ;

2 (Pile review is not " good cause") ;

3 (Slurry wall installation is not " good cause") :

uncertain (Rejection can be inferred from the fact that the Order explicitly admits (p. 54) only the dewatering contention at p. 7 of the Second Supplement. On the other hand, ad-mission could be intended on the theory

• / Contentions 1-4 ..ppear at pp. 5-6.

• . o and conditions stated by the Board (pp. 52-54) with respect to PCCP 1, 3 and Illinois 2.)

4II (Need for power):

rejected (on basis stated (order, pp. 59-60) by Board in connection with Contentien PCCP 6) .

(Evacuation):

rejected (on basis stated by Board at pp. 29-32) .

(Alternatives):

rejected (on basis stated by Board at pp. 24-29) .

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• / At pp. 11-12 of the Second Supplement, Mr. and Mrs. Grabowski

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provide "more specificity" for Contention 4 in the Supplement.

IV. Conclusion NIPSCO urges the Board to again consider the arguments made in this " objections," without, of course, waiving any' arguments previously made whether or not referenced herein.

In particular, we reqa2st the Board to:

A) reexamine the question of the permissible scope of a construction-permit-extension proceeding and correctly apply the Cook test; B) withdraw its questions regarding "short piles" and reject contentions seeking to raise that issue; C) clarify the scope of certain admitted contentions on the reasons for delay and dewatering effects; */ and D) make explicit findings regarding the admission or rejection of all proposed contentions.

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• / The contentions are PCCP 1 and 3 and Illinois 2; PCCP 7

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and Illinois 5; and PCCP 4 and 5, Illinois 3, Grabowski,

p. 7.

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Finally, we respectfully request that the Board act promptly upon all objections filed by participants in order to avoid any further delay in the proceeding.

Respectfully submitted, William H. Eichhorn, Esquire EICHHORN, EICHHORN & LINK 5423 Hohman Avenue Hammond, Indiana 46320 Kathleen H. Shea, Esquire Steven P. Frantz, Esquire LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, NW Washington, DC 20036 By ffM -

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Kakhleen H. Shea By Steven P. Frantz i

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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, ) August 18, 1980 Nuclear-1) )

)

CERTIFICATE OF SERVICE I hereby certify that a copy of NIPSCO's Objections to Order Following Special Prehearing Conference was served on the following by deposit in the United States mail, postage prepaid, on this 18th day of August, 1980:

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

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