ML19344E850

Response in Opposition to Porter County Chapter & State of Il 800825 & 26 Motions to Compel NRC Determination Re Need for Eis.Nrc Should Inform ASLB & Parties of Schedule for Completion of Evaluation of Util Extension Request

ML19344E850
Person / Time
Site:	Bailly
Issue date:	09/05/1980
From:	Eichhorn W, 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 8009110808
Download: ML19344E850 (3)

Text

f~

s ..

D G) s A h Tro

. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '8f g BEFORE THE ATOMIC SAFETY AND LICENSING BO O

cfc h ,7

/

Bianclu _y/

In the Matter of ) Docket No. 50-367 4 -

) (Construction Permit NORTHERM INDIANA PUBLIC SERVICE ) Extension)

COMPANY )

)

(Bailly Generating Station, ) September 5, 1980 Nuclear-1) )

)

NIPSCO'S RESPONSE TO MOTIONS CONCERNING STAFF DETERMINATION OF WHETHER OR NOT TO PREPARE ENVIRONMENTAL IMPACT STATEMENT I. Introduction Porter County Chapter Intervenors have requested the Board to " direct the NRC Staff to make . . . its determination con-cerning whether or not it will prepare an Environmental Impact Statement (EIS), as requirea by the National Environmental Policy Act . . . with respect to NIPSCO's application for an amendment to its constrtction permit." (Motion Concerning Environmental Impact Statement dated August 25, 1980.) The State of Illinois has filed a similar motion. (Motion to Com-pel Staff Determination dated August 26, 1980.) Both motions seek to require the Staff to make its determination promptly.

II. Appropriate Board Action NIPSCO shares the apparent concern of intervenors with the unexplained delay in the Staff's evaluation of NIPSCO's request for a construction permit extension. We, too, urge tha Staff l

2009110[C@

Q $303

. to complete that task promptly--including a deterimination as to whether an environmental impact statement is to be prepared. /

However, in our opinion it is doubtful that the Licensing Board has authority to take the action sought--i.e. to " direct" or " compel" the Staff to reach promptly a decision on a specific question--at least at the present time.**- / In fact, we believe that intervenors' purpose can be met with less drastic measures.

We suggest that the Board simply request the Staff to advise the Board and parties of its schedule for completion of its evaluation of NIPSCO's request for a construction permit extension--which, we understand, will include the determination as to the need for

• / In our view, no impact statement or supplement need be prepared. Intervenors take the opposite view and Illinois now relies upon a recent letter from the Chairman of the Council on Environmental Quality to the Illinois Attorney General (Exhibit B to the Illinois Motion). We have prepared a Memorandum which addresses the substance of the intervenors' position and the CEQ letter. That Memorandum is being sent to the Director, Nuclear Reactor Regulation, and copies served upon the Board and all parties.

• • / The principal NRC precedent is Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194 (1978).

That decision acknowledges the potential conflict between the Staff's role and that of the Licensing Board; it con-cludes that the Board may not force the Staff to accomplish a specific task (in that instance, issue an environmental impact statement) by a specific date. However, the Appeal Board concluded that the appropriate course in that case was for the Board to " ascertain why the Staff document in question has not been forthcoming." (Id. at 207.) It is essentially that course which we recommend to the Board.

an environmental impact statement. At the prehearing conference the Staff indicated that it expected to complete that task in June 1980. (Tr. 282-283.) If the Staff's current schedule does not involve prompt completion of the evaluation, the Staff should also be asked to explain the reasons for the delay. When the requested information is in hand, the appropriate action, if

/

any, can be determined.

III. Conclusion For the reasons above cited, we urge that the subject motions by Porter County Chapter Intervenors and Illinois be denied. We further recommend that the Board request the Staff to inform the Board and parties of the schedule for completion of its evaluation of NIPSCO's request for an extension. If that completion is not expected before October 15, the Staff should also be requested to explain the causes of the delay.

Respectfully submitted, William H. Eichhorn, Esquire EICHHORN, EICHHORN & LINK 5243 Hohman Avenue Hansond , Indiana 46320 Fathleen H. Shea, Esquire vWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N.W.

Wash' gton, D.C. 2 36 By: $lA *

)LAt-- -

Kadhleen H. Shea

• / The Appeal Board in Offshore Power identified several possi-ble courses of action if the Staff "cannot" demonstrate a (pd.)

reasonable cause for its delay . . . .

l

LAW OFFICES LOWENSTEIN, NEwMAN, REIs, AXELRAD & TOLL 6025 CON N ECTICUT AVENU E. N. W.

mosca,towe=svein wAS HI NGTON, D.C. 2O O3 6 Jaca e.=s==a= _

=amoLO r. e r:S waum:Cs ans6 mao 2O2 862-8400 DAv'O m. Y06L saFMLE C M M. SWEA J. A . 9 0Ma *e*G net. JR.

usCmACL A. SaySg m

....coZ.a.~eS September 5, 1980 Abete? W CARS, J R.

48eas t w. COf f ensenau sayee k t E8e A. CO2 nost of as. CULp FETE R G. Fb?NN

",Tll~ ::::ll' F # CDC8'C S. O mar DOUG6mS 0. Get tse Davec s. masasse Mr. Harold Denton Director, Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Docket No. 50-367 Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1) 1

Dear Mr. Denton:

The State of Illinois has recently filed a " Motion to Compel Staff Determination" which asked the Licensing Board in the Bailly construction permit extension proceeding to i

require the Staff to decide whether it will prepare an l environmental impact statement with respect to NIPSCO's I request for the permit extension. Illinois takes the position that a new or supplemental statement is required and relies upon a letter dated August 12, 1980, from the Chairman of the Council on Environmental Quality to the Illinois Attorney General.

! On behalf of NIPSCO, we are responding separately to l

the Illinois Motion and have also prepared the enclosed i Memorandum which addresses the substantive question of the i

800909079 f _. _. -. .. .- _. - -- . . - -

LOWENSTErN, NEwMAN. RErs. AXELRAD & Tor.r.

Mr. Harold Denton September 5, 1980 Page Two need for an impact statement and the arguments advanced by CEO. This letter and the enclosure are being served on the Board and all other participants.

Very truly yours, LOWENSTEIN, NEWMAN, REIS, AXELRAD

& TOLL Counsel for NIPSCO By: 8bl. . M Kathleen H. Shea IOIS/j g Enclosure i

i l

i

Lowzwsterw. NzWM AN Rzzs. AxzLRAn & TOLL d

l MEMORANDUM OF LAW ON THE NEED TO PREPARE AN ENVIRONMENTAL IMPACT STATDIENT IN CONNECTION WITH EXTENSION OF THE BAILLY CONSTRUCTION PERMIT I. Introduction In response to a May 27, 1980, letter from the former Attorney General of Illinois, the CEQ has forwarded a reply dated August 12, setting forth its views on the need to pre-pare an environmental impact statement (EIS) or an EIS supple-ment for the Bailly construction permit extension. The CEQ has alleged that new information since the issuance of the Bailly Final Environmental Statement (FES) , have rendered that document inadequate and that a "new or supplementary EIS must therefore be prepared" before the Bailly construction

, permit may be extended. As Permittee demonstrates below, the CEO letter, which fails to address the NRC regulations and case law relevant to this issue, does not set forth any grounds i to support its assertion that the granting of an extension for the Bailly construction permit would be a major federal action significantly affecting the quality of the human environment pursuant to Section 102 (2) (c) of NEPA. In fact, the relevant precedents establish that this construction permit extension quiring preparation of a DUPLICATE DCCUMENT ent.

Entire document previcusly entered into system under:

ANO h No. of pages: hh

l

, . . m O -

y .

s.

EXECUTIVE OFFICE OF THE PRESIDENT

COUNCIL ON ENVIRONMENrAL QUALITY 732 jackson MACL 8C W.

h wASMeseToN. o. C. 30006 August 14, 1980 ,

I The Honorable John Ahearne Chairman U.S. Nuclear Regulatory Concission Washington, D.C. 20555

Dear Chairman Ahearne:

The Council.vas gratified by the positive response informally expressed ,

by the Coe=ission for the views set forth in our letter and attachment to you, dated March 20, 1980, concerning accident analyses in the com=is-sion's environmental i= pact statements ("EISs") for nuclear reactors.

We believe that the subsequent formal announcement of Interim Policy ~ on the issue by the Co:: scission is the most significant and encouraging step you have taken to rectify the serious problems in accident analysis inherited from the Ato=ic Energy Com=ission. 1 am writing to you at this time to convey the Council's specific views on the Interim Policy and the steps which must be taken to fulfill the Cc==ission's obliga-tions under the National Environmental Policy Act ("NEPA") .  ;

The accident considerations to be included in future NEPA reviews described by the Cc=ission in the June 13th policy statement (45 yed. Reg. 40101, at 40103) appear to conform to the basic outline for the required accident analysis prescribed in the Council's letter of March 20, 1980. However, such an analysis is difficult to describe accurately in purely abstract

.ter=s. For that reason we look forward to the issuance of the first such NEPA analysis for a reactor in the licensing process. The Council vill carefully exa=ine the draft of that analysis and public co=ments thereon with a view toward providing the Com=ission with comments that would be useful in the preparation of a final analysis for NEPA review purposes.

As the Interi= Policy indies tes, consideration of the environ = ental con-sequences of severe reactor accidents might warrant the need "for additional features or other actions which would prevent or mitigate the consequences of serious accidents." 45 Fed. Reg. at 40103. Consideration of such information might indicate, among other things, the need to modify plant design, select an alternative site, implement e=argency preparedness measures, or reconsider a construction per=it altogether. In this regard, the Council strongly disapproves of the Con =ission majority's statement that such new NEPA reviews "will lead to conclusions regarding s similar to those that would be e practices . . . ." 45 Fed. Reg. at on disagreed with the majority on DUPLICATE DOCUMENT position is " absolutely inconsistent with order Err 28 u8 position on C1 css 9 Entire document previously The Council agrees. The two sentences entered into system under:

ANO h _

,,'Cpys to: RF, EDO, Docket... 80-1598 No. of pages:

e 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, ) September 5, 1980 Nuclear-1) )

)

CERTIFICATE OF SERVICE I hereby certify that a copy of NIPSCO's Response to Motions Concerning Staff Determination of Whether or Not to Prepare En-vironmental Impact Statement and letter to Harold Denton, Director, Nuclear Reactor Regulation, NRC from Kathleen H. Shea with atte.ched memorandum of law on the Need to Prepare an Environmental Impact Statement in Connection with Extension of the Bailly Construction Permit were served on the following by deposit in the United States mail, postage prepaid, on this 5th day of September, 1980:

Herbert Grossman, Esquire U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

Glenn O. Bright U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l Richard F. Cole l U.S. Nuclear Regulatory Commission l

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

E 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 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, N.W.

Washington, D.C. 20036 Richard L. Robbins, Esquire 53 West Jackson Boulevard Chicago, Illinois 60604 Mr. George Grabowski Ms. Anna Grabowski 7413 W. 136th Lane Cedar Lake, Indiana 46303 Dr. George Schultz 110 California Michigan City, Indiana 46360 00lA-KA7HLEEN H. SHEA Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036

. ~ .. - - , - - . . - - . . . . . . . . - - , - . - . - . . - . , - . -