ML19344F578

Forwards Revised Pages 21,22 & 24 of Memorandum of Law on Need to Prepare EIS Re CP Extension,Attached to 800905 Ltr. Section 9.103 of NRC Regulations Was Overlooked.Memorandum Submitted w/800905 Ltr

ML19344F578
Person / Time
Site:	Bailly
Issue date:	09/10/1980
From:	Shea K LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Harold Denton Office of Nuclear Reactor Regulation
References
NUDOCS 8009150463
Download: ML19344F578 (6)

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• LAW OFr CES LOWENSTEIN, NEWMAN, REIs, AXEutAD & TOLL 4045 CONN ECTICUT AVENUC, N. W.

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, .c D c.,c . .av QOuGLas G. Gaggae Davr0 S. ras ne's 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)

Dear Mr.'Denton:

I refer to the Memorandum of-Law on the Need to Prepare An Environmental Impact Statement in Connection with Exten-sion of the Bailly Construction Permit which is attached to my letter to you dated September 5, 1980.

In preparing that Memorandum, we overlooked Section 9.103 of the NRC regulations which precludes citations to statements made at open Commission meetings. We have therefore revised pages 21, 22 and 24 of the Memorandum, and copies of-the re-vised pages are enclosed for substitution in the Memorandum.

We regret this error and any inconvenience which it may have occasioned.

Very truly yours, LOWENSTEIN, NEWMAN,-REIS, AXELRAD

& TOLL Counsel for NIPSCO cO Y By: (Ild- p' bb' 4 Kathleen H. Shea .h@ \

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Enclosure

8 009150 pg 3 .

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REVISED 9/9/80 various stages in the licensing process. / In so doing it has provided the Staff and licensing boards guidance for de-termining whether an FES supplement should be prepared in a particular proceeding.

In issuing the IPS, the Commission has decided to alter its policy on the consideration of Class 9 accidents from that provided in the previously proposed Annex to Appendix D. The IPS reflects concern regarding the impact of this change upon the progress of ongoing proceedings and outlines the course to be followed by the Staff in preparing Class 9 accident analyses in future NEPA reviews. (45 Fed. Reg. at 40,103.)

-*/ It'is important to note that the Commission's determina-tion on the precise handling of Class 9 accidents repre-sented'an appraisal of highly technical issues by the agency in which "a virtually unique . . . degree.of . . .

broad responsibility is reposed." Siegel v. AEC, 400 F.2d 778-(D.C. Cir. 1968); see also Power Reactor Development Co. v. International Union of Electrical Workers, supra.

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' REVISED 9/9/80 The Interim Policy Statement directs the Staff to

" initiate treatments of accident considerations in accord-ance with" the new guidance only "in its on-going NEPA '

- reviews, i.e., for any proceeding atia licensing stage where a Final Environmental Impact Statement has not yet been issued." (45 Fed. Reg. at 40,10 3. ) This statement expresses the Commission's intent to maintain the existing two-stage process for licens.hig new nuclear plants. In accordance with the Commission's regulations n 10 C.F.R.

S 51.26, a Final Environmental Statement has been issued

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for.the Bailly facility and this Statement formed part of the basis for the Commission's issuance of a construction permit-for the Bailly facility. Under the Interim Policy Statement, NIPSCO's Environmental Report submitted in con-junction with its application for an operating license must include a discussion of the risks associated with Class 9 accidents. (4 5 Fed. Reg. at 4 0,103. ) The Commission has

, therefore determined that,-in order to maintain an orderly L

transition between policies, the Staff's NEPA review of Class 9 accidents for plants with existing construction permits shall.be undertaken at the operating license stage.* /

• / See 45 Fed. Reg. at 40,103.

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_ REVISED 9/9/80 NEPA reviews in limited proceedings, unaffected by the Com-mission's new Class 9 policy.-/-

The CEO letter to Illinois conveniently ignores the above-cited portions of the Commission's'IPS which demon-strate a clear desire to prevent a disruptive transition.

CEQ instead states that the Policy Statement is " ambiguous" on the need to prepare a supplement for EISs that have al-ready been issued at the construction permit stage.

The only portion of the IPS from which the CEO letter quotes is addressed to the NRC Staff:

However, it is also the intent of the Commission that the Staff take steps to identify additional cases that might -

warrant early consideration of either additional features or other actions which would prevent or mitigate the consequences of serious accidents.

Cases for such consideration are those for which a Final Environmental Statement has already been issued at J

-*/ Clearly, incorporation of the new guidance can delay on-going proceedings. The NRC Staff has estimated that the initial preparation of an accident analysis pursuant to the Interim Policy Statement will require approximately four man-months. (SECY-80-131, " Accident Considerations under NEPA," Encl. 3, p. 2 (March 11, 1980.) Further de-lay could be occasioned in the Bailly extension proceeding by - the submission of new contentions regarding Class 9 accidents and the proceeding could be substantially dis-rupted.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY ANL LICENSING BOARD

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In the Matter of ) Docket No. 50-367

)

NORTHERN INDIANA PUBLIC SERVICE ) (Construction Permit COMPANY ) Extension)

)

(Bailly Generating Station, ) September 10, 1980 Nuclear-1) )

)

CERTIFICATE OF SERVICE I hereby certify that a copy of letter to Mr. Denton trans-mitting revised pages of Memorandum was served on the following by deposit in- the United States mail, postage prepaid, on this 10th day of September, 1980:

IfJ Herbert Grossman, Esquire U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Glenn O. Bright U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ricard F. Cole U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docke'ing c 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

, ., , n-- ---- ---w -g -

-Susan Sekuler, Esquire r

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, NW )

Washington, D.C. 20036 l l

Richard L. Robbins, Esquire 53 West Jackson Boulevard Chicago, Illinois 60604 -

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l Mr. George Grabowski j

Ms. Anna Grabowski '

7413 W.-136th Lane Cedar Lake, Indiana 46303

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Dr. George Schultz 110 California Michigan City, Indiana 46360

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KATHLEEN H. SHEA Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, NW Washington, D.C. 20036

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