ML19344B278
| ML19344B278 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 08/22/1980 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-CPA, NUDOCS 8008260161 | |
| Download: ML19344B278 (7) | |
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UNITED STATES OF AMERICA 8/22/80 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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NORTHERN INDIANA PUBLIC Docket No. 50-367 SERVICE COMPANY
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(Construction Permit Extension)
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(Bailly Generatina Station,
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Nuclear-1)
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NRC STAFF POSITION ON NEWLY-FILED CONTENTIONS AND MOTION TO CONSOLIDATE INTRODUCTION In its August 7, 1980 Order Following Special Prehearing Conference, the Board afforded the Staff an opportunity to state its position on the ad-missibility of the newly-filed contentions submitted by the Porter County Chapter Intervenors (PCCI) in their June 30, 1980 objections to the earlier provisional special prehearing conference order and adopted by the State of Illinois.
In its Order, the Board made the general observation that these contentions " appear to be matters not directly related to the requested ex-tension, matters that are not fundamental to the construction of the facility (as are the issues of siting and foundation pilings), and/or matters that would not appropriately be heard before the operating license proceeding under any circumstances." Order at 51-52. The Staff agrees.
Its further position on the contentions is set forth below.
In addition, the Staff hereby moves, pursuant to 10 C.F.R. H 2.715a, to con-solidate the prosecution of any of the newly-filed contentions which may be admitted under either PCCI or the State of Illinois on the grounds that 600gggoggj
% their interest in these matters is indistinguishable and that these conten-tions raise identical questions for adjudication.
DISCUSSION Newly-filed contentions 1 through 10 raise the following concerns:
(1) post-TMI studies; (2) recent developments such as the required shut-down in 1979 of five nuclear plants because of earthquake design, the 1979 Inter-agency Review Group on Nuclear Waste Management to the President, and the 1978 Risk Assessment Review Group Report to the NRC (NUREG/CR-0400);
(3) the Mark-II containment design; (4) post-accident monitoring; (5) unre-solved generic safety issues; (6) ATWS; (7) occupational exposure due to a nuclear accident; (8) spent fuel storage; (9) nuclear system material failure; and (10) the need to prepare an environmental impact statement.
Contention 10 has the following subparts:
(a) consideration of contentions 1 through 9 from an environmental standpoint; (b) need for power; (c) con-struction cost increases; (d) population density; (e) dewatering imnacts and the slurry wall effects to date upon the Indiana Dunes; and (f) Class 9 accidents. Contentions 11 and 12 assert that, in the alternative, the matters raised in contention 10 must be considered in a. supplement to the construc-tion permit Final Environmental Statement and their impact upon the cost-benefit analysis performed therein evaluated. Contention 13 questions the financial ability of the Applicant to design and construct the Bailly facility.
Contention 14 asserts that the cost and availability of u' um must be considered in this proceeding and contention 15 asserts that energy conserva-tion must be considered as an alternative to the requested extension.
' As a general precept, contentions must fall within the scope of the parti-cular licensing action and be set forth with basis and specificity per the requirem::nts of 10 C.F.R. 5 2.714(b) and applicable case law.
See, e_.g.,
BPI v. Atomic Energy Commission, 502 F.2d 424, 429 (D.C.Cir. 1974). All of these proposed contentions suffer from the same infirmity -- they seek the introduction of issues that lie outside the scope of this permit exten-sion proceeding. A number of the contentions-1/
raise certain safety concerns of no apparent applicability to the particular Bailly facility. Without such a de, nstration, thesc contentions lack the requisite basis and speci-ficity of 10 C.F.R. H 2.714.
As a general matter, these contentions embrace issues already litigated during lengthy construction permit hearings, issues considered in other post-construction permit actions, issues to be considered at th,
.w.: rating license stage of review, generic issues, or issues of developing Commission policy.
It is clear on their face that none of these contentions are relevant to the required " good cause" criteria of 10 C.F.R. 5 50.55(b) nor do they bear any reasonable nexus to the reasons assigned in the extension application for the delay in construction so as to be cognizable under the Appeal Board decision in Cook.
Indiana and Michigan Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), ALAB-129, 6 AEC 414, 420 (1973).
To the extent that the contentions involve safety issues applicable to the Bailly plant, even under the Board's theory of the permissible scope of this proceeding, Intervenors have not made a " convincing prima facie showing that the safety matters alleged will not be satisfactorily resolved by the new if See, e.g., contentions 1, 2, 5, in part, and 9.
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completion date of the facility" so as to be presently litigable. Order at 28-29. Despite its disagreement with the Board's formulation of this theory, the Staff does not believe that any contentions fall within that category of issues admissible thereunder.
.As noted, many of these matters have already been considered in this docket.
Certain of the matters were addressed at the construction permit or " slurry wall" hearings.-2/Others provided the partial bases for Intervenors' unsuc-cessful petition of: November 26, 1976 to suspend the Bailly construction.-3/
The balance of these issues, t] the extent specifically relevant to the Bailly facility, will be considered at the operating license phase. Design (and implementation) changes during construction and developments in the NRC regulatory process are to be expected. The matter of nuclear construc-tion, licensing, and regulation is not a static process. At the same time, not every such " change" requires licensing board scrutiny prior to the even-tual submission of an operating license application. Cf. Cook, supra.
If this were not true, a construction permit could never issue without being
'l subject to the interdiction of periodic hearings. Such a result would frus-trate the regulatory scheme established by statute and regulation. This scheme should not be abrogated simply because certain events combined to require a construction permit extension. See Cook, supra, 6 AEC at 421; see also Northern Indiana Public Service Co. (Bailly Generating Station, 2/ See, e.g., contentions 6,10(c), (d), (e), and 15.
-3/ Porter County Chapter of the Izaak Walton League v. NRC, 606 F.2d 1362 (D.C. Cir. 1979).
See, e.g., contentions 3,10(b), (c), and (e),13 and 14.
. s Nuclear-1), CLI-79-11,10 NRC 733 (1979).
If Intervenors believe that an unsafe or environmentally harmful activity or practice is or will occur prior to the operating license application, their remedy is to seak appro-priate Commission action under 10 C.F.R. 5 2.206 as Intervenors are well aware.
With regard to Intervenors' claim in contention 10, 11, and 12 that an en-vironmental impact statement (EIS) or supplement must be prepared, the Staff intends to perform a safety and environmental evaluation of the proposed action to the extent required by law and the operative facts.
If the Staff determines that this constitutes a major Commission action which will have a significant impact on the environment, it will prepare an EIS pursuant to the requirements of Section 102(2)(C) of the National Environmental Policy Act.
It is prem;.ture to reach that decision now as the Intervenors and the Board have already recognized. See Order at 61.
CONCLUSION For the foregoing reasons, the Staff opposes the admission of the newly-filed contentions.
In the event that one or more such contentions are ad-mitted, the Staff moves that their prosecution be consolidated under either the Porter County Chapter Intervenors or the State of Illinois.
Respectfully submitted, Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda, Maryland this 22nd day of August, 1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
, BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
NORTHERN INDIANA PUBLIC
)
Docket No. 50-367 SERVICE COMPANY
)
(Construction Permit Extension)
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(Bailly Generating Station,
)
Nuclear-1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF POSITION ON NEWLY-FILED CON-TENTIONS AND MOTION TO CONSOLIDATE" in the above-captioned proceeding have been served on the following by deposit in the United States rail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regu-latory Commission's internal mail system, this 22nd day of August, 1980.
- Herbert Grossman, Esq., Chairman Edward W. Osann, Jr., Esq.
Atomic Safety and Licensing Board Panel Suite 4600 U.S. Nuclear Regulatory Commission One IBM Plaza Washington, D.C.
20555 Chicago, Illinois 60611
- Dr. Richard F. Cole Robert L. Graham, Esq.
Atomic Safety and Licensing Board Panel One IBM Plaza U.S. Nuclear Regulatory Commission 44th Floor Washington, D.C.
20555 Chicago, Illinois 60611
- Mr. Glenn 0. Bright George and Anna Grabowski Atomic Safety and Licensing Board Panel 7413 W. 136th Lane U.S. Nuclear Regulatory Commission Cedar Lake, Indiana 46303 Washington, D.C.
20555 Dr. George Schultz Kathleen H. Shea, Esq.
110 Californid Street Lowenstein, Newman, Reis, Axelrad Michigan City, Indiana 46360 and Toll 1025 Connecticut Avenue, N.W.
Richard L. Robbins, Esq.
Washington, D.C.
20036 Lake Michigan Federation 53 West Jackson Boulevard Robert J. Vollen, Esq.
Chicago, Illinois 60604 c/o BPI 109 North Dearborn Street Chicago, Illinois 60602
John Van Vranken, Esq., Chief
- Atomic Safety and Licensing Northern Region Board Panel Environmental Control Divi, ion U.S. Nuclear Regulatory Commission 188 West Randolph Street Washingtoa. D.C.
20555 Chicago, Illinois 60601
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Clifford Mezo, Acting President
- Docketing and Service Section Local 1010 Office of the Secretary United Steelworkers of America U.S. Nuclear Regulatory Commission 3703 Euclid Avenue Washington, D.C.
20555 East Chicago, Indiana 46312 William H. Eichhorn, Esq.
Eichhorn, Morrow & Eichhorn 5243 Hohman Avenue Hammond, Indiana 46320 Diane B. Cohn, Esq.
Suite 700 2000 P Street, N.W.
Washington, D.C.
20036 Steven C. Goldberg L/
Counsel for NRC Staff
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