ML19347B494
| ML19347B494 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 10/02/1980 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ISSUANCES-CP, NUDOCS 8010150177 | |
| Download: ML19347B494 (89) | |
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BEFORE THE UNITED STATES 2
NUCLEAR REGULATORY COMMISSION 3 - - - - - - - - - - - - - - - - -x 4 In the Matter ofa Docket Number 5 NORTHERN INDIANA PUBLIC s
50-367 6 SERVICE COMPANY (CP Extension) 7 (BAILLY) l 8 - - - - - - - - - - - - - - - - -x 9
Nuclear Regulatory Commission f
10 Commission F.eeting Room 11 Fifth Floor 12 4350 East 'lest Highway 13 Bethesda, Maryland 14-15 Thursday, October 2, 1980 16 The above entitled astter came on fc oral 17 argument, pursuant to notice, at 10:00 a.m.
d 18 BEFORE:
19 ALAN ROSENTHAL, CHAIRMAN 20 Atomic Safety and Licensing Appeal Board 21 22 DR. JOHN BUCK, MEMBER 2
23 24 MR. THOMAS MOORE, MEMBER 25 ALDERSON REPORT 1NG COMPANY, INC.
kDkDI N D1 400 VIRGINIA AVE, S.W., WASHINGTON. D.C. 20024 (202)554 2345 j
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1 APPEARANCES:
2 For NBC 1
3 STEPHEN SOLDEERG, ESQUIRE 4
Nuclear Regulatory Commission 5
Washington, D. C.
20055 i
4 6
7 For NIPSCO:
j 8
WILLIAH EICHHORN, ESOUIRE 9
5243 Hohman 10 Hammond, Indiana 46320 11 12 For Porter County Chaptar Intervenors:
13 ROBERT J.
VOLLEN, ESQUIRE i
f 14' 109 North Dearborn i
15 Chicago, Illinois 60602 16 l'7 For Gary Petitioners:
18 19 DIANE COHN, ESQUIRE s
20 WILLIAM SCHULZ, ESQUIRE 21 Suite 700 22 2000 P Street, N.
W.
23 Washington, D. C.
20036 24 25 O
ALDERSON REPORTING COMPANY, INC.
400 VIRGINTA AVE, S.W., WASHINGTON, D.C. 20024 (202)554-2345
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2 ORAL ARGUMENT OF:
PAGE 3j Ms.-Cohn, 5
I on behalf of 4
Gary Petitioners e
5i Robert J. Vollen, 26 9
on-behalf of 3
6l Porter County Chapter Intervenors R
7 William Eichhorn, 45 g
on behalf of j
8 NIPSCO a:i 9
Stephen Goldberg, 65 E
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CHAIRMAN ROSENTHAL:
This Court is hearing oral 3 argument this morning on the appeals of the City of Gary, 4 Indiana, et al, George Schultz.
So much of the Licensing 5 Board's August 7, 1980, prehearing conference order has 6 denied their petitions for leave to intervene in this 7 construction permit extension proceeding.
The argument is 8 governed by the terms of our September 17 order.
As 9 indicated therein, a total of one hour is allotted to each 10 side for the presentation of argument.
The appellants and 11 those supporting their position will be heard first, and may 12 reserve a portion of their time for rebuttal.
13 w
As counsel may or may not be aware, on September
- 1. - 3 0, we granted the motion of the Gary appellants to file a 4
15 reply brief addressed to the standing question which had 16 been raised by the applicant.
That reply has been -- was 17 rather attached to the motion.
l 18 I will now request counsel to identify themselves 19 formally for the record, and we will start with the 20 appellant, City of Gary, et al.
Ms. Cohn?
21 MS. CCHN:
Good morning.
l 22 My name is Diane Cohn.
With me is William 23 Schultz, and we represent the City of Gary, et al.
24 CHAIRMAN ROSENTHALa Thank you, Ms. Cohn.
And the 25 Porter County Chapter Intervenors.
Mr. Vollen?
O ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE, S.W. WASHINGTON, D.C. 20024 (202)554-2345
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'1 MR. VOLLENs Thank you, Mr. Chairman.
My name is 2 Robert J. Vollen.
I represent the group of organizations 3 and individuals identified as the Porter County Chapter 4 Intervenors, who participate here in support of the appeals 5 of the City of Gary petitioners and Dr. George Schultz.
6 CHAIRMAN ROSENTHALs I understand, Mr. Vollen, 7 that you have a brief statement that was prepared by Dr.
8 Schultz that you intend to present on his behalf in the 9 course of your argument.
10 MR. YOLLENs That is correct, Mr. Chairman.
11 CHAIRMAN ROSENTHALs Thank you.
12 Let me ask you this.
Either Ms. Cohn or Mr.
13 Vollen, have you agreed upon a division of the time allotted
- 14. to your side of the case?
15 MS. COHNs Yes, we have agreed tha t I will spend 16 40 minutes presenting my argument, Mr. Vollen 20 presenting 17 his, and the statement of Mr. Schultz.
18 CHAIRMAN ROSENTHALs Thank you, Ms. Cohn.
19 For the applicant, Mr. Eichhorn?
MR. EICHHORNs My name is William Eichhorn, 20 21 representing the applicant, Northern Indiana Public Service 22 Company.
With me this morning are Kathleen Shea and Steven 23 Frantz.
24 CHAIRMAN ROSENTHALs Thank you, Mr. Eichhorn.
25 For the NRC staff, Mr. Goldberg?
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400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202)554-2345
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1 MR. GOLDRERGa Good mo rning, M r. Chairman.
2 My name is Stephen C. Goldberg, and I represent 3 the NRC staf f in this matter.
I 4
CHAIRMAN ROSENTHALs All right.
I will ask the 5
same question that I posed to the other side.
Has there 6 been agreement between applicant and the staff on division 7 of the one hour allotted to that side?
8 MR. GOLDBERGs We will divide that hour equally.
9 CHAIRMAN 20SENTHAL:
Equally?
All right.
10 Ms. Cohn, I presume you are proceeding first on 11 your side of the case.
12 OEAL ARGUMENT 13 ON BEHALF OF GARY PETITIONERS 14 -
BY MS. COHN 15 MS. COHN:
Yes.
Thank you.
I would like to 16 reserve ten sinutes of my time for rebuttal.
17 The issue in this appeal is whether the Licensing 18 Board properly denied intervention to the City of Gary,
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19 Indiana, United Steelworkers of America Local 6787, and to 20 citizen groups representing individuals who live or work or 21 visit the National Lake Shore located very near the Bailly ZZ Nuclear Plant.
23 To ansvar this question, the Board has to decide 24 whether the scope of this proceeding encompasses the one 25 contention that the Gary petitioners have raised, namely, O
s ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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'I that an extension should not be granted unless NIPSCO 2 demonstrates that it is building'Bailly at a site where i
3 surrounding populations can be evacuated in the case of a 4 nuclear accident.
5 In determining the scope of this proceeding, we J
6 would like to emphasire that this extension proceeding is
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7 unlike any other which has been or is soon likely to be 8 presented to this Board.
This case is essentially one of 2
9 first impression, precisely because of the unique 10 circumstances presanted by Bailly.
11 CHAIRMAN ROSENTHA1:
Are you arguing that the test 12 that was laid down in the Cook case is inapplicable here?
13 MS. COHN:
No, we are arguing that the reasoning 14 applied in the Cook case is controlling here, and supports 15 the result which we urge, that is, namely, that we have a 16 cight to intervene in this proceeding.
It is simply that l'7 this case is different than Cook, because unlike Cook, we 18 have not raised an environmental issue that is related to 19 the reasons for delay.
20 That was the only issue that the Board had to 21 address in Cook.
This is a different case.
We are raising 22 a new question.
23 CHAIREAN ROSENTHAL:
Didn't the Cook case hold 24 that the issues in the construction permit extension 25 proceeding must be related to the reasons underlying need O
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400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202)554-2345
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1 for the extension?
2 MS. COHN4 I belle ve that that the language in 3 Cook concerned safety issues related to the reasons for 4 delay, but that was because that was the only issue 5 presented there.
6 CHAIRMAN ROSENTHAL:
But the Board did, did it 7 not, lay down the standard that governed the scope of the 8 construction permit extension proceeding?
9 MS. COHN:
That is correct.
The standard laid 10 down was one which directed licensing boards to determine 11 the scope of the good cause finding in each case based on 12 the fact of that particular case.
13 CHAIRMAN HOSENTHALs Do you have a copy of the
- 14. Cook opinion at hand ?
15 MS. COHN Yes.
16 CHAIRMAN EOSENTHAL:
Would you be so kind as to 17 turn to Page 420, if you have a copy from the volume of the 18 AEC reports, and if you would go down to a little more than 19 halfway through the page, to where there is Number Two, 20 beginning in the finer analysis?
Do you see what I am 21 referring to?
22 ME. COHN Yes.
23 CHAISMAN ROSENTHAL:
All right.
And follow that, 24 if y ou will, with me.
"In the final analysis, then, the 25 question here comes down to whether the reasons assigned for AV ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
i 1 the extension give rise to health and safety or 2 environmental issues which cannot appropriately abide the 3 event of the environmental review facility operating license 4 hearing.
5 "Put another way, we must decide whether the 6 present consideration of any such issue or issues is 7
necessary to protect the interest of intervenors of the
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8 public interest."
l 9
Now, why is that not a determination, right or 10 vrong, on the part of this Board, that in a construction 11 permit extension proceeding the issues are confined to those 12 which are related to 'the reasons which have been assigned 13 for the extension?
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14' MS. COHNs
'd ell, in reading the language that you 15 have just quoted, I would emphasi'.e the language which says, 16 "The question here comes down to."
In other words, in Cook, l'7 the question presented related to safety issues, a 4
18 consideration of safety issus relating to the reason f or 19 delay, and the whole discussian immediately preceding the 20 particular language which you have just read indicates quite 21 clearly that, and I quotes 1
ZZ "It seems to us that the f actors which the -
23 adjudicator should take into account in making its ' good 24 cause determination' should be influenced by the totality of 25 the circumstances which confront it, and as a result of this ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202)554 2345
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l sort of common sense approach that this Board took in Cook, 2 it rejected the NRC staff's argument in that case that the e
3 only consideration that would weaken the scope was the 4 consideration of whether there was good cause for the delay, 5 whether the excuses for non-completion gave rise to good 6 cause determination."
7 This Board said no, that where there are health 8 and safety issues involved which the public interest 9 requires e determination of at this point -- in other words, 10 where these health and safety issues cannot abide with you 11 at the operating license stage -- the scope of the good 12 cause finding will include those health and safety issues.
13 CHAI3 MAN ROSENTHAL:
Do you distinguish Cook from g-)
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That is the basis of the factual 18 distinction?
19 MS. CCHN:
That is one factual distinction.
20 CHAIRMAN ROSENTHAL:
What is another?
21 MS. COHN:
Okay.
On that point, I would point out 22 that Cook clearly indicates itself, though the operating 23 license hearing had already been noticed, we are certainly 24 nowhere at the stage, the advanced stage tha t that plant was 25 at in Cook.
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ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE. S.W., WASHINGTON. D.C. 20024 (202)554-2345
1 CHAIRMAN RCSENTHAL:
Just following that for a 2 moment, even if we might agree with you that it makes little 3 sense to def er consideration of -- consideration at the 4 operating license stage, the staff has pointed to the fact 5 that there is pending before the Director of Nuclea r Reactor 6 Ragulation a petition for a show cause order under 2.206 of 7 the Commission's regulations.
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8 Now, if I recall correctly, your clients have, 9 shall we say, joined in that petition, even though, as I 10 recall, it was the State of Illinois, was it not, that was 11 the initiator.
Now, assuming that you are right, that this 12 should not wait until the operating license hearings some 13 years off when the plant presumably will be much farther 14* along the road to completion, and I would say, speaking for 15 myself, I tnink on that score you have a very good point, 16 why isn't tae staff right in its suggestion that there is l'7 another f orum available f or the consideration of this 18 question?
19
- 35. COHNs Well, I think I have two answers to 20 that question, the first being that if we have a right to 21 intervene here, which we contend we do, under Section 185 of 22 the Atomic Energy Act, the mere possibility that there might 23 be another forum open for raising the issue should not 24 preclude the Gary petitioners from being permitted to 25 intervene.
ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE S.W., WASHINGTON D.C. 20024 (202)554-2345
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CHAIRMAN ROSENTHAL:
I would agree with that, but 2 you are asking us to adopt a common sense approach, you 3
see.
That is what Cook was all about.
And you say common 4 sense dictates that this issue be admitted to this 5 proceeding, and I tm responding that maybe common sense 6 dictates it be heard at ths juncture rather than waiting 7 until the operating license level, but why isn't the common 8 sense approach to leave it to the 2.206 remedy rather than 9 load this proceeding on with an issue which is extraneous to 10 the reasons why the construction permit extension is being 11 sought?
12 MS. COHN:
Certainly, as we have indicated, we 13 have tried various routes for having this issue raised, but
- 14. the reason why the possibility of a 2.206 proceeding is not 15 adeqaute here is mainly the fact we have no assurance that a 16 2.206 proceeding will be initiated.
I'7 The only response the State of Illinois has 18 received thus far was from Mr. Denton, Director of Nuclear 19 Reactor Regulation, indicating that it would not be sooner 20 than next spring before basic preliminary analyses would be 21 prepared to give the staff an initial indication of whether 22 they would take action on that petition.
23 In addition, we know on the other hand that we 24 have an ongoing proceeding here.
We know there is going to s
25 he a hearing held.
We know the hearing is going to entail Oy ALDERSON REPORTING COMPANY, IAC.
400 VIRGINtA AVE. S.W., WASHINGTON, D.C. 20024 (2021554-2345
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1 other environmental and safety issues.
Other intervenors 2 have been admitted whose contentions raise other 3 environmental and safety issues, and those issues will be 4 heard.
This proceeding is going to determine whether an 5 extension for construction is going to be granted, and we 6 think it is not only an appropriate but a necessary forum in 7 which emergency evacuation should be considered.
8 I would also point out that we do not believe that 9 a 2.206 proceeding provides the same kinds of procedural 10 protections to our rights as this proceeding affords us.
11 CHAIRMAN ROSENTHAL:
Why is that?
12 MS. COHN4 Because of the limited nature of O
appeal, limited cross examination opportunities.
Here we 13 v
14*have an ongoing proceeding in which we feel that this issue 15 can appropriately be raised.
16 CHAIRMAN ROSENTHAL:
If the 2.206 petition were l'7 granted, and there was a show cause ;roceeding instituted, 18 why woul dn ' t you have the same adjudicatory rights in that 19 proceedino as you dould have in this one?
20 MS. COHN Assuming a show cause order is not 21 issued, that is our primary concern.
22 CHAIRMAN ROSENTHAL:
That has nething to do with 23 cross examination.
24 MS. COHN No, I am sorry.
25 CRAIRMAN ROSENTHAL You are saying, I take it, if O
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13 I the director were to turn you down, you would not have. at 2 least wi thin the Commission, any appellant rights.
You are 3 dependent upon the Commission on its own initiative 4 reviewing the Director's determination to reverse it.
5
- 55. COHN That is exactly right.
6 CHAIRMAN ROSENTHAL Okay.
7 3S. COHNs You had asked just a couple of minutes 8 ago about what other factual distinctions can be made 9 between Bailly and Cook.
We have already identitifed the 10 fact that Bailly is only 1 percent complete.
11 3R. MOOREs You use the figure 1 percent 12 frequently in your brief.
What is the origin of that figure?
13 3S. COHNs To tell you the truth, I know that the 14* only amount of construction that has been undertaken is 15 basically the diqqing of the hole in the ground, and that 16 since the time ronstruction has been suspended because of 17 difficulties encountered in driving pilings and the fact 18 that NIPSCO has had to apply to the NRC staff for a change 1
19 in its piling construction, I at this point -- This figure l
20 has been accepted, and without challe nge, by NIPSCO 21 throughout this entire proceeding.
22 It escapes me right now where that figure 23 originated, but I have not heard anything from NIPSCO to the 24 contrary.
25 MR. M00RE:
It would be suspect.
It is a suspect
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400 VIRGINIA AVE. S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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It is one that you are not --
2 MS. COHNs Perhaps it would be more accurate to 3 say that Bailly is simply a hole in the ground than to say 4 it is 1 percent complete.
5 DR. BUCK:
Are you talking about the construction 9 progress or the amount of money spent?
7 MS. COHN I am referring solely to the amount of 8 construction undertaken.
9 DR. BUCK:
And you might think there would be 10 considerably more money spent on this project to this point 11 percentagewise.
12 MS. COHN:
Certainly, but of course there would be 13 (N
a considerable amount of additional outlay --
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14 DR. BUCK:
I was trying to find out exactly what 15 you are talking about.
16 CHAI3 MAN ROSENTHAL:
I take it you point is l
17 whether it is 1 percent or some other percent, that it is 18 clear they have a long way to go before they finish.
19 MS. CCHN:
Tha t is exactly right.
That is exactly 20 right.
And our point is here, the issue -- the contention 21 we raised which related to the question of whether l
Zl evacuation of Bailly is feasible is not, as in Cook, the 23 kind of routine design change that would ordinarily occur i
24 a' iring construction of a plant.
In fact, which the Appeal 3 Board found was inevitable during the construction of a O
ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554-2345
4 1 plant which has historically been found to be capable of 2 resolution at the operating license stage without prejudice 3 to the intervenors in the public, in contrast to that 4 situ 4 tion in Cook, what we raised here is the fundamental 5 question of whether this plant is being built in the right 6 place, whether surrounding populations under the 7 Commission's new emergency evacuation policies within a 8 ten-mile radius of this plant can be evacuated within a 9 reasonable period of time.
10 DR. BUCKS Where do you get the idea that the 11 population das to be evacuated under the new regulations?
12 MS. COHNs The policy underlying the new 13 regulations is that feasible evacuation plans will be a O
- 14. condition for operation of a plant.
15 DR. BUCK But does that say that everybody wi thin 16 ten miles has to be evacuated?
They have to be protected, I 17 belle ve, is the way the policy statement reads.
18 Now, how do you connect protected with mandatory 19 evacuation?
20 MS. COHN:
Well, I read the new regulations as 21 indicating thct a class -- in light of the possibility of a 22 class mine accident, that evacuation has now attained new 23 importance in terms of protection of the public.
24 DR. BUCK:
Can you show me where the peiicy 3 statement requires the evacuation out to ten miles?
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ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE. S.W. WASHINGTON. D.C. 20024 (202)554-2345
1 MS. COHN I do have the regulations here.
I do 2 not believe we have to determine in this proceeding whether 3 every singla person within ten mile s of the Bailly plant can 4 be evacuated, and how they will be.
That is what we are 5 trying to raise.
The only question here --
6 DR. BUCK:
Isn't the policy statement one that 7 requires a seans of protecting people?
8 E5. COHN I do not disagree with that, if that is
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9 the point here really is that 10 DR. BUCK:
Wait a minute.
It isn't.
You are 11 addressing in your brief that everybody has to be evacuated, 12 not protected.
You have not used the word " protected" in 13 your brief at all, as f ar as I can see.
It is always 14 "eva cuated."
15 As I recall, this plant went through a site 16 evaluation hearing in which the evacuation and the low l'7 population rene and protection of people and so on was 18 considered.
Now, I know of nothing which sa ys that the 19 Commission now says that the whole ten miles has to be 20 evacuated, or tha people are in any more danger now than 21 th ey were when we went through the site hearing before.
22 MS. COHN:
There was one fundamental difference 23 between what we think now and what we though t when Bailly
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24 was evaluated at the construction permit hearing, and that 25 difference is as a result of the accident at TMI.
The NRC
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ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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I staff now racogniras that Class 9 accidents are a real 2 possibility, and should be accounted for in emergency 3 planning and procedures, and as a result, whereas back in 4 1974 the only thing considered was an initial analysis for 5 protection of people within a 1.5 mile low population zone.
6 Now, everybody unanimously agrees that that kind 7 of analysis is not sufficient in terms of adequa'te 8 protection of the public.
9 DR. BUCK:
Granted.
I can grant that argument, 10 but where in that policy change does it say that everybody 11 has to be evacuated?
There are other means of protection, 12 are there not?
13 MS. COHN:
If there are other means of protection,
- 14. we do not know -- Our contention is that there are not 15 adequate means of protection for the population surrounding 16 Sailly.
17 DR. BUCK:
What do you base that on?
18 MS. COHN We base tha t on the demographics of the 19 site, tha fact that it is located 800 feet f rom a steel 20 plan t which cannot be totally shut down sooner than six 21 days.
We base it on the fact that it is located 700 feet 22 from a national lake shore, where we could have up to u0,000 23 visitors per day, and we base it on the fact that within a 24 ten-mile radius of this site, there is a population in 25 excess of 100,000 or so.
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400 VIRGINIA AVE. S.W., WASHINGTON. D.C. 20024 (202)554-2345 l
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1 We base it on the fact that Bailly has been 2 iden tified by the siting task force as being the only 3 nuclear power plant in this country to fail every one of its 4 criteria for siting of nuclear power plants.
5 So, we say there is a' siting problem with Bailly, 6
yes.
7 DR. BUCKS Now, when this plant went'through is 8 site review, wasn't the steel plant there?
9 3S. COHNs Yes, sir.
10 DS. BUCK:
All right.
Wasn't the lake shore there?
11 MS. COHN4 Yes, but --
12 DR. BUCKS No w, le t me finish my questions, 13
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please.
Weren't those things considered in the site review?
14' HS. COHNs What has changed is not the 15 demographics.
What has changed is the way we account for 16 them or think about them, or our whole emphasis on emergency 17 planning, what is new, what has arisen really in the last 18 cotple of years and since the accident at Three Mile Island.
19 DR. BUCKa Is the steel plant within the low 20 population zone?
21 ES. COHN:
Yes.
22 DR. BUCKS Was that fully considered as far as 23 evacuation is concerned?
24 MS. COHN:
No.
I would say on the basis of 25 present knowledge, it was not fully considered.
O ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE, S.W., WASHINGTON. D.C. 20024 (202)554-2345
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DR. BUCK:
Then you are challenging what has 2 already been decided on this plant?
3 HS. COHN We are saying -- we are not seeking 4 relitigation of every sit in issue raised in the 5 construction permit hearing.
'4 e are saying that on the 6 basis of new knowledge of new Commission regulations, new 7 Commission policy on emergency planning, all -- every study 8 in the last couple of years which has indicated that you do 9 not site a nuclear power plant in areas of high population 10 density, support i new determination now and before Bailly 11 is built, and not after, as to whether the public will be 12 adequately protectad.
13 CHAIRMAN ROSENTHALs Isn't that the fifth
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14 candidate for a Section 2.206 proceeding?
There is a 15 construction permit proceeding there was r. construction 16 perm it proceeding, as Dr. Buck noted.
Certain issues were 17 litigated, including the suitability of the site from the 18 standpoint of popula tion, distribution, demographics, and 19 certainly conclusions were reached.
20 Now, you are telling us now that the situation has 1
21 changed, not with respect, perhaps, to the site itself, but J
ZZ with respect to the approach that is taken.
Assuming you l
Z3 are right, isn't th a t exactly what the rules of practice 24 contemplate are to be litigated if at all prior to the 25 operating license level through the vehicle of a 2.206?
O ALOERSON REPORTING COMPANY, INC.
400 VIRGINtA AVE. S.W., WASHINGTON. 0.C. 20024 (202) 554-2345 1
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1 MS. CCHNs A 2.206 proceeding, the initiation of 2
one, lies in the discretion of the Director of Nuclear 3 Reactor Regulations.
4 CHAIRMAN ROSENTHAL:
It always does.
That is the 5 way the Commission has had it.
Maybe the Commission is 6 vrong about that.
Maybe the post.111ty of new developments 7 having a crucial impact on whether a plant should be built 8 is such that the Director's decisions on 2.206 petitions 9 should be automatically reviewed by the Commission, but the 10 Commission chose to do it different.
11 Now, why shouldn't we respect both, one, the 12 Commission's judgment that a show cause proceeding or the 13 request for an initiation of a show cause proceeding is the
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14' manner in which one brings to the Commission 's attention new 15 developments, and two, that the Director's decision is not 16 subject to -- is not to be subject to appeal, but rather, it l'7 is up to the Commission on its own initiative to decide 18 whether to review it.
19 One may agree or disagree with tha t, but that 20 seems to me offhand to be the policy that the Commission has 21 seen fit to adopt.
22 MS. COHN:
'de ll, I guess I go back again to the 23 fact that we read the Atomic Energy Act as also indicating 24 that this applicant must show good cause for an extension, 25 and we feel --
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400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202)554 2345
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,1 CHAIR 3AN ROSENTHAL:
Whatever that means.
2 MS. COHN Whatever that means, and we feel -- and 3 if we have raised an issue that is appropriate to 4 determining whether good cause for an extension exists, that 5 we should be able to participate in this proceeding.
6 CHAIRMAN ROSENTHAL:
Ihat is the question that is 7 before us, whether this is an issue which is appropriate to 8 be considered in an extension proceeding.
9 May I ask you this?
Do you regard there as being 10 any limits on the safety or environmental issues which are 11 a ppr opria tely raised in a construction. permit extension 12 proceeding?
Any kind of new development bearing upon some 13 determination that was made in the construction permit
[
14 proceeding is fair game?
Or is there some test that you 15 would have us adopt that would put your evaluation 16 contention on one side of the line and leave the bulk of the l'7 changed circumstances on the other?
18 MS. COHN:
We agree there is a limit, and we think 19 there should be a threshold requirement made in the nature 20 of the kind of ntandard that the licensing board set out in 21 its order, which is that the re b e -- th a t we are required to 22 make a prima facie showing that there has been a significant 23 intervening health or safety or environmc :al issue which 24 the public health and safety require be determined now.
25 CHAIRMAN ROSENTHAL:
Prima facie showing?
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l Evidentiary showing?
What kind of showing?
2 MS. COHN I believe simply that we show as a 3 matter -- I don't believe an evidentiary showing is 4 required, but simply that an allegation be made that a 5 significant health and safety issue has arisen since the 6 constructica permit was granted, and which cannot abide with 7 you at the operating license stage.
8 CHAIRMAN ROSENTHAL:
These are volatile times.
I 9 would suppose an astute lawyer would have not the slightest 10 difficulty in coming up with an allegation addressed to 11 virtually every finding that was made in the construction A permit level.
13 MS. COHN:
I think again you have to look at the
}
14 circumstances of every case.
Here we are clearly not 15 raising a r,anoply of health and safey issues already 16 litigated at the construction permit stage.
We are raising 17 an issue which goes to a fundamental question that we submit 18 cannot be resolved af ter the plant is built.
19 It is based upon changes in policies and 20 approaches which have arisen since the construction permit 21 was granted, and we think th a t the conbination of all the ZZ factors surrounding Bailly, all the factors I have already 23 indicated, demonstrate that if there is a set of 24 circumstances in which a health and saf ety issue of this 25 Kind is within the scope of an extension proceeding, this O
ALDERSON REPORTING COMPANY, INC.
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23
~1 evacuation content.t on is that set of circumstances.
2 MR. MOORE:
Assume for the moment tha t the 3 contention were admitted.
By what standard would the 4 evacuation problem then be judged in an adjudicatory hearing 5 on that matter?
6 MS. COHN Well 7
M2. MOOREs What regulations would be applicable?
8 MS. COHN:
Well, again -- Well, fi rst, I would 9 like to indicate that there is already in progress a number 10 of different studies concerning evacuation times for Bailly, 11 so we do not have to start from Ground Zero.
NIPSCO has 12 just recently submitted a report to the NRC staff on 13 evacuation times compiled by its contractor.
FEMA has hired f-}
'u 14* another contractor to prepare a report on evacuation times 15 at Bailly, and I am referring now to evacuation within a 16 ten-mile radius.
17 So, we do not have to start at Ground Zero. We at 18 least have some information already being compiled and 19 already being submitted to the NRC.
20 MR. MOORE:
What is the ultimate standard by which 21 the evacuation would have to be judged?
22 MS. COHN:
Well, we think that all presently 23 operative regulations, including the Commission 's new 24 emergency planning regulations, should serve as a guide, and 25 a determination should be made on the basis of all of this O
ALDERSON REPORTING COMPANY, INC.
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I information whether evacuation is feasible.
2 That is merely a threshold determination about 3 whether -- we do not have to see the absolute details of an 4 evi uation plan prasented, but the threshold finding should 5 be made about whether evacuation is feasible.
6 DR. BUCK:
In what length of time?
7 MS. COHNs We have not yet determined what length 8 of time.
9 DR. BUCK:
Has anybody?
10 33 CCHN:
I am not sure.
I don't know.
I think 11 it would again vary within the circumstances of every plant, 12 but these at standards and tests that we believe we can
()
13 work out before the Licensing Board.
The only issue, here 14'again, is whether we have the right to intervene to a ttempt 15 to do that.
16 DR. BUCK 4 Well, barring the fortuitous l'7 circumstances of having a hearing coming along on a 18 differant matter, what would you have done about this?
19 MS. COHN:
We will -- What we would have done is 20 to try what we are doing right now.
We are trying every 21 opportunity which has presented itself to try and have this 22 issue raised.
D DR. BUCK:
What opportunity do you have?
I am 24 asking you, what would you have done specifically?
3 MS. COHN:
Well, we have joined in the State of GU ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE. S.W., WASHINGTON, D.C. 20024 (202)554-2345
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25 L,-)s 1 Illinois' request for a 2.206 proceeding.
2 DR. BUCK 4 Ckay.
3 MS. COHN But the point is -- the frustrating 4 fact is not being issured of a forum to raise this issue in.
5 CHAIRMAN ROSENTHALs We understand the limitations 6 of a 2.206 insofar as the petitioner is concerned, but I 7 think what Dr. Buck is getting a t is, if the construction 8 permit deadline -- completion deadline in the Bailly permit, 9 instead of being, as I think it was, 1979, had been in 1998, 10 so that this proceeding would not have been necessary, at 11 least not at this time, I take it you would have had no 12 alternative but to pursue the 2.206 remedy, as inadequa te as 13
}
rou may feel it is.
Isn't that so?
that is so.
14'
- 35. COHN:
That is not 15 CHAIRMAN ROSENTHAL:
So you are really seeking 16 hera to sei=e on the fact th at the completion date specified 17 was 1979, in order to get your evacuation contention into a 18 diff erent proceeding?
19 MS. COHN:
Yes, that is correct, and I plead the 20 Atomic Energy Act gives us the right to do that.
The Atomic 21 Enere. Act sets out the latest completion da tes, and in an 22 extraordinary case like this, where virtually no 23 construction has been begun for five or six years, that it 24 is an appropriate time, the most appropriate time to 25 determine whether good cause f or continuing to build this O( /
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l plant exists, and we believe emergency evacuation is 2 relative to that.
3 CHAIRMAN ROSENTHAL:
The other distinctior,s you 4 had between this case and Cook, aside from the plant, this 5 plant is not very far along the road to completion, what 6
were the other distinctions?
7 MS. COHN4 The other distinction I made was that 8 as opposed to Cook', where what was being raised was a design 9 change which the Board found could be accor.nted for at the 10 operating license stage, we believe that car contention 11 raises a health and safety issue th a t is fundamentally 12 different.
13 CHAIRMAN ROSENTHAL:
If you want to save ten 14* minutes for rebuttal 15 MS. COHN:
I believe I have already run over.
16 Thank you.
I'7 CHAIRMAN ROSENTHAL:
Mr. Yellen?
18 It is good to see you again, Mr. Vollen.
19 In this proceeding, which, along with one or two 20 others, I would suppose, notably Seabrook, never seems to 21 come to an end.
Granting, as I do, that it is up here this 22 time in a somewhat d'_.rerent posture.
23 ORAL ARGUMENT 24 ON BEHALF OF PORTER COUNTY CHAPTER INTERVENORS 25 BY ROBERT J.
YOLLEN O
ALDERSON REPORTING COMPANY, INC.
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- 1 ME. V0lLENs Thank you, Mr. Chairman.
It is good 2 to see you again in this proceeding.
I hope some day this 3 proceeding, the Bailly proceeding, will come to an end.
4 As the Chairman indicated, I have been asked by 5 Dr. George Schultz, one of the appellants, to read a 6 statement to the Appeal Board.
With the Board's indulgence, 7 I will do that at this time.
8 "To the Atomic Licensing Appeal Board from George 9
E. Schultz.
I regret being unable to attend this hearing 10 since I believe I have information concerning the 11 evacuability of the Indiana State Prison, Michigan City, 12 Indiana, which the Appeals Board should be aware of when 13 considering the legitimacy of my opposition
'.o the Bailly l' site.
15 "I have many serious concerns about the 16 suitability of the Bailly site, but in the interest of 1'7 brevity, I will list only some of the concerns I have 18 regarding the men in the Indiana State Prison.
19 "The prison houses over 1,700 men currently.
It 20 is a maximua security facility where the most serious 21 offenders 1. the state are sent for mostly long-term 22 incarceration."Over one-third of the man are ' lifers,' one 23 of the very highest percentages of any prison in the world.
24 The prison is over l'0 years old, and in my 25 opinion, overcrowded and understaffed.
Along with some nice O
ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202)554-2345
I guys, the prison houses some of the most vicious, deceitful, 2
anc daagerous men imaginable.
The security provisions there 3 are necessarily rigid and extreme.
The thought of 4 evacuating this population in a safo fashion is staggering, 5 even under the most ideal conditions.
The thought of f evacuating these men under conditions when the rest of the 7 area 's population is also being evacuated seems like a 8 criminal joke.
9
'As a psychologist, I am trained to observe how 10 people do behave esther than how they should behave.
It 11 seems clear to me that under the conditions of an 12 evacuation, it is very likely that the following is how 13 people will behave, no matter what the established policy or
{}
14- ' official plan.'
15 "One, there'will undoubtedly be a goodly number of 16 inmates who will view the evacua tion as a pos91ble chance to 17 escape the almost intolerable conditions of incarceration.
18 It is not inconceivable that cohorts of inma tes may attempt 19 to precipitate a nuclear crisis in order to provide an 20 opportunity for escape during evacuation.
The 200 or so men 21 on ' lockup' in the prison will be especially difficult to 22 deal with safely.
23 "Two, the area's communities will be concerned and 24 preoccupied with the evacuation of its citizens in schools, 25 hospitals, nursing homes, et cetera.
The priorities of the O
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I community will pre-empt the personnel needed to do any 2 reasonable evacuation of the prison.
City and sta te police 3 will be busy,' as will National Guard, et cetera.
4 "Three, the prison is usually undermanned, with 5 relatively poorly paid staff members.
It is inconceivable 6 that they by themselves could effect an evacuation, 7 especially under conditions when their own families and they 8 themselves should be escaping to safer environments.
9 "Four, safety may demand that evacuation be j
10 completed within hours, whether human factors may cause the Il evacuation to take days.
Can anyone show me an evacuation 12 plan at all for these men?
Has an evacuation of this size 13
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prison population ever bee tried under nuclear emergency 14' conditions anywhere ?
To me, it is inconceivable to wait 15 until after the plant is built to broach this most serious 16 issue of evacuation of the area's people and the prison 17 population.
18 "The public has a right to thoroughly examine any 19 evacuation plan which affects their life and safety before 20 the need arises and before $1 billion of their utilities 21 moneys are spent.
22 "Please require public hearings on evacuation and 23 other serious issues before the plant is built.
24 "Thank you for seriously considering these 25 matters.
Dr. George Schultz, 807 East Cool Spring, Michigan O
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2 CHAIRMAN ROSENTHAL:
Thank you, Mr. Vollen, for 3 having brought Dr. Schult='s statement to us.
4 HR. VOLLEN4 You are welcome, Mr. Chairman.
5 The organirations and individuals which I 6
represent, which have been referred to in the pleadings as 7 the Porter County Chapter Intervenors, support the appeals 8 of the Gary petitioners and of Dr. Schult=.
We think that 9 this Board ought to reverse the determination of the 10 licensing board and admit them and direct they be admitted 11 1s parties, and their contentions concerning the feasibility 12 of an evacuation plan be considered in this hearing.
13 It seems to me it ought to be emphasized that such fgV 14 a determination by this Board to reverse the Licensing Board 15 does not mean that an emergency plan must be developed now.
16 It does not mean that an emergency plan cannot be developed 17 or can be developed.
All it means -- I think it needs to be 18 emphasized -- is that the question of developing an
~
19 evacuation plan, whether such a plan can be developed some 20 time prior to operation of the plant, gets addressed nov 21 rather than after the plant is built.
22 We are only talking about what can be heard, not 23 any determination on the merits.
24 CHAIRMAN EOSENTHAL:
What is your view as to thir.
25 proceeding vis-a-vis the 2.206 route?
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1 MR. VOLLEN:
I think that 2.206 petition is a way 2 to raise the question.
It is not, however, it seems to me, 3 a fortuitous circumstance that this proceeding is here.
It 4 is a circumstance that arises in the language of the Cook 5 case out of the totality of the circumstances.
The fact is, 6 in the over 60 months that NIPSCO had a construction permit 7 for Bailly, it did no t get it built.
That is not 8 fortuitous.
That is a result of all the circumstances, not 9 the least of which, if you read +5e application, is the fact 10 of the TMI accident.
11 So, it all does fit together, and the point is 12 that to say that there is a 2.206 proceeding is to beg the 13 question of whether or not a good cause for extension 14 proceeding needs to consider this kind of issue, or indeed 15 this particular issue.
16 CHAIRMAN ROSENTHAL:
As I suggested to Ms. Cohn, 17 it seems to me that what the appellants have to rely on is 1l8 the proposition that it makes good sense to consider the 19 site suitability issue now as opposed to later, and
)
20 therefore it should be brought into this proceeding even 21 though site suitability is really extraneous to the reasons 22 why the utility needs this extension, and if that is really l
23 what it does come down to, it seems to me that in order to 24 establish the good sense it requires the inclusion of the i
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400 VIRGINIA AVE. S.W. WASHINGTON, D.C. 20024 (202)554 2345
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l there is not another vehicle available for pressing the 2 issac at this point.
3 3R. VOLLENs I think, M r. Chairman, that to 4 characterize the appellants as having to rely on good sense 5 is really to understate vastly the support for their 6 position.
What the appellants rely on chiefly, I think, is 7 the language of the Atomic Energy Act, which sa ys tha t 8 NIPSCO has to show good cause for the extension.
We know 9 that there is precious little data evailable as to what good 10 cause means, and I think we all know -- all the parties seem 11 to have agreed in their briefs -- that the most learning on l
12 the subject is this Board's decision in the Cook case.
13 CHAIRMAN ROSENTHAL:
In the Cook case, if I can
(}
14' quote one sentence, "Section 185 does not purport to define 15 ' good cause,' and moreover, there is nothing in its terms 16 which permits the drawing of any particular inference as to l'7 what Congress may have thought should be the bounds of the 18 Commission's good cause inquiry."
19 Now, we thought in Cook that one got no assistnnce 20 at all from the Act or its legislative history, and now you 21 are telling us that the Act is the foun t of the appellant's 22 claim of entitlement to have this issue included in the 23 proceeding.
24 MR. VOLLEN:
If I may read two additional 25 sentences from this Board's decision in Cook, talking about ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202)554-2345
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I the phrase " good cause" which appears in the sta tute, I 2 quote:
3 "Whether good causes exists in a particular case 4 obviously is dependent upon the facts of tha t case.
A 5 corollary to that axiomatic proposition, it seems to us, is 6 that the factors which the adjudicator should take into 7 account in making its good cause determination should also 8 be influenced by the totality of the circumstan es which 9 confront it."
10 And later on in that same paragraph -- on that 11 same page, the Board referred to the propriety of using a 12 common sense approach.
13 So, what we are saying is, it is not simply good
{}
14* sens e, it is common sense based on the specific facts of the 15 Bailly situation and the particular circumstances here, and 16 all of those together.
17 CHAIRMAN ROSENTHALs One of those circumstances is 18 that there is a 2.206 remedy available which has been 19 invoked by the State of Illinois and now by the appellants.
20 MR. VOLLEN:
It has been invoked.
I suspect -- I 21 cuspect that if that petition were granted, and if a show 22 cause proceeding were initiated there, it might be a far 23 different case than this, although I think it is true that 24 the standard is different in a show the substantive 25 standard is different in a show cause case than it is in a O
ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202)554-2345
34 s-I good cause case, but without reaching that question, we do 2 not have the situation where you have two different hearings 3 considering the same issue.
4 In an exercise of administrative discretion and 5 sound policy, this Board or the Commission or even the 6 Licen sin g Board might say, well, wait a second.
We ought 7 not to be considering the same issue at the same -- in two 8 different proceedings at the same time.
But in point of 9 fact, where we are now is that the issue is not being 10 considered in either hearing.
We cannot be put in the Catch 11 22 situation where you say there is another one possible, 12 and you cannot litigate it here.
13 CHAIRMAN ROSENTHAL:
Do you think that a
{}
14 construction permit extension proceeding is open to the 15 litigation of any issue previously litigated so long as 16 there is an allegation of changed circumstances?
I'7 MR. VOLLEN No, and I do not believe, Mr.
18 Chairman, that anyone in this Bailly good cause for 19 extensjon proceeding is seeking to relitigate issues that 20 have been litigated before.
21 CHAIRMAN BOSENTHALs You are seeking to relitigate i
22 site suitability.
If I recall correctly, this Board gave 23 its blessing to the Bailly site in terms of Part 100.
As I j
l 24 understand it, it was in the Seventh Circuit.
It was in th e 25 Supreme Court.
It was back in the Seventh Circuit.
O ALDERSON REPORTING COMPANY, !NC.
400 VIRGINIA AVE, S.W., WASHINGTON. D.C. 20024 (202)554-2345
35 C) 1 MR. VCLLENs And then back in the Surpreme Court 2 again.
3 CHAIRMAN ROSENIHAL:
Back in the Supreme Court 4
again.
Why isn't this perha ps perf ectly justifiably an 5 endeavor to relitigate site suitability based upon 6 developments which occurred after the construction permit 7 proceeding came to an end?
8 HR. VOLLEN4 Because none of those proceedings or 9 decisions bT Boards or the Commission or the Courts dealt 10 with the issue of whether a feasible evacuation plan in 11 light of 1990 events and in light of the Commission's 12 regulations which become effective in 1980, whether such a 13 plan can fessibly be developed for the Bailly site.
O 14 CHAIRMAN ROSENTHAL:
You say there have been 15 changed circumstances which require a reconsideration of the 16 suitability of this site from an evacuation standpoint.
17 Isn ' t tha t it?
The changed circumstances being the ones 18 that you just enumerated.
19 HR. VOLLEN When you say reconsideration, it 20 implijes, I think, that there has been --
21 CHAIRMAN ROSENTHALa Re consideration of the 22 conclusions reached.
There was a conclusion reached in the 23 Bailly construction permit proceeding that this site was 24 suitable.
Now, what is being sought is a reconsideration of 25 that ultimate conclusion based upon alleged changed l
ALDERSON REPORTING COMPANY, INC.
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I circumstances.
Isn't that right?
2 MR. VOLLEN:
In that broad sense of 3 reconsideration, yes.
I must ag ree with you.
In the same 4
sense, of course, this proceeding seeks a reconsideration of 5 the determination as to whether or not the Bailly plant 6
should be built, because if the construction permit 7 extension is not granted, then the Bailly plant cannot be 8 built.
9 Now, it is true, it was determined in 1974, when 10 the construction permit was issued, that the plant can be 11 built, so in that broad sense, yes, we are seeking the 12 proceeding seeks a reconsideration of that.
13 CHAIRMAN ROSENTHAL4 And that is what 2.206 was O
I4. put in the regulations to accommodate, wasn't it?
15
- 38. VOLLEN I do not think so.
I do not think 16 2.206 was designed to accommodate an alternative to vitiate 17 the statutory purpose of having a good cause for extension 18 proceeding when a latest completion date has expired.
~
19 It seems to me, Mr. Chairman, that the premise of 20 your question is that the real scope of a good cause 21 proceeding is the reasons why construction was not 22 completed, and as Ms. Cohn said, there isn't any law or 23 theory, I suggest, to support that reading.
24 Cook did no say that, and indeed, if Cook had said 25 that because of the clear statement in the opinion that the ALDERSON REPORTING COMPANY, INC.
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1 intervenors did not raise any isrues other than those
^
2 related to the delay, il "'ok had said that, it would have 3 been dictum, because the issue.as not presented in Cook.
4 What we have frca Cock is the f act that in the absence of 5
any clear indication from Ccngress or the Commission as to 6 what gecd cause means, this Ecard has said, you need to use 7 a common sense appecach and icok at the totality of the 8 circumstinces.
9 One of the totality of the circumstances, it seems 10 to me, ougnt to be amphasized, and that is the incremental 11 effect on the parties and the Eoard -- and the Ecard, this 12 Soa rd reversing and saying that emergency planning or the 13 feasibility of emergency planning ought to be considered.
~s x-14 Th a t is not, I suggest, very likely to have a significant 15 impact.
16 As Ys. Cohn said, there is going to be a hearing.
17 There are numerous parties that have been admitted.
There 18 are going to be issues that are goinq to be addressed.
19 Discovery is under way already.
The subject matter which 20 the Gary petitioners and Dr. Schult seek to have litigated 21 in that proceeding that is going on is a subjact matter that ZZ is not new to NIPSCO cr to the staff.
It is a subject 23 matter that is being add resced :.ow in teras cI studies of 24 evacuation time, and I cuggest the real difference of
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400 VIRGINIA AVE, S.W., WASHINGTcN. O.C. 20024 (202) 554-2345
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1 Board hea ring is really that instead of f 3t.NIPECO and the 2 staff addressing the qaestions from the puclic, from 3 intervenors will be permitted on the subject as well.
It 4 will be done out in the open at this stage, rather than 5 later on, after the plant is built.
6
- r. ? core, I think the answer to your question as 7 to the soucce of the 1 percent status of completion of 8 construction is a Commission report on the status of 9 completion of construction, dated 1978.
I do not have the 10 precise citation to it now.
It can be furnished.
11 CHAI3 DAN ECSIXT3AL:
You would a;ree, I take it, 12 that do*s not reflect actually the percentage of the overall 13 investment that has been made?
)
14 MR. 70LLEN:
In point of fact, we don't know the 15 percentage of the overall cost.
The latest estimate as to 16 the cost of Eailly is over a year old, and that was $1.1 17 billion.
That is the latest cost the company predicts.
18 The coupany has acknowledged recently, as a matter 19 of record in this proceeding, th a t that figure is out of 20 date, that the figure now is hi;her.
'a'e also know that they 21 have spent approxisately 51?u to 5190 million.
'*e d o n ' t 22 know what percentage of the total estimated costs the actual 23 expenditures are a t this point.
It seems to me that not the 24 good sense but the common sense approach and the totality of 25 the circumstances concerning 3ailly nake cuch a compelling N
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I for the consideration of this issue in this proceeding case 2 that you really need to ask the opposite side of the 3 question:
What good reasons are there for not directing the 4 licensing Board to permit this issue to be addressed at this 5 time?
6 I suggest that tho only reason that has been 7 offered by NIPSCO or by the staff is a sechanistic, unseeing 8 theory that to do so would be to violate, to interfere with 9 the two-sta;e licensing process contemplated by the Atomic 10 Energy Act. I suggest to you that that issue is a red 11 herring.
12 To be sure, there is a two-stage licensing 13 process.
There is a construction pernit, and there is an
( %,
14' operating license, but there is also another hearing stage.
15 That is what Congress said.
'4he n an applica nt, when a 16 holder of a permit seeks an amendoent to that permit, and 17 that is what.NI?SCO is doing by this construction permit 1
18 extension, seeking an amendment, there is a hearing as of 19 right at the request cf any interested persons.
20 So, the question now is not whether there should 21 be a third stace, this specter that N!PECO and the staff are 22 raising that we are going to ruin the whcie licensina 23 process.
There is a third sta;e that is built into the 24 statute.
The question is, what should be considered at that 3 stage?
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ALCERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 I202) 554-2345
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1 There is going to be a hearing that will consider 2 a number of issues.
It se9ms to me'that common sense under 3 the totality of tnese circu stances dictates tha t that 4 hearing consider whether in lient of everything that has 5 happened since 1973, a faasible evacuation plan can be 6
developed for Bailly.
7 DR. BUCK May I ask one more question?
You made 8 the statement, there is discovery going on now, and plans 9 made to look at the feasibility of the evacuation plans and 10 so on.
Why does puttin; the situation into this hea rinq 11 advance that cause at all?
Do you still not have to wait 12 until the discovery is done, until the criteria that are to 13 be set up for emergency plans are finalized, and all of the 7-V 14 stud y done on the Bailly plant before this can be answered?
15 So, why delay this hesring when there is another 16 -- when it is alresdy under way under 2.206 with all I'7 discovery, with all the plans bein; made?
You still have to 18 have those, even to do it under this hearing.
~
19 MR. V0llEN:
I think, Dr. Buck, that there may be 20 some confusion about the facts.
There is not, to my 21 knowledge, any 2.206 proceedin; concerning Bailly 22
- 05. 5"CK:
What was your dis:cvery statement?
l 23 ME. VOL1 N:
There is the Licensing Eca rd in the i
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24 August 7 order, part of which is before this Appeal Board.
25 They ordered that my clients and others be admitted as f')
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400 VIRGINIA AVE. S.W., WASHINGTON. O.C. 20024 (202)554 2345
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parties, so that taere is going to be a hearin; on the 2 construction peroit extension prcceeding.
It is in that 3 proceeding now addressing other issues in evacuation or 4 emergency planning in connection with which discovery is 5 going on.
That hearing is ;cing to address the question of 6 why NIPSCO fid not set the plant completed.
7 It is in that hearing, sir, that the discovery is 8 going on on those already admitted contentions.
9 DR. BUCK:
'4h a t does that have to do with the 10 study and tae discovery and th a t sort of thing that has to 11 go on on evacuation?
12 MR. VOLLEN As of right now, that does not deal 13 with evacuation planning.
14 03.
3* JCT:
Have the criteria for eoergency plans 15 been set up by the C0: mission?
Is that one of the reasons 16 why you cannot go ahead with a hearing on emergency plans at 17 the present moment?
18 ME. 70LLENs The reason, as I understand it, why a 19 hearinc on amergency planning or the faasibility of 20 emergency planning for Sailly cannot go ahead is because the 21 Licensing Board said it was ciutsida tne scoge of the 22 hearing that is going on which this 3 card is being asked to l
23 reverse, and because also the Director of Nuclear Peactor 24 Regulations has not seen fit to act upon -- to grant the s
25 2.206 petition?
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'1 DR. E'JCKa Has he given you any statement why he 2 has not acted upon that?
3 F. R. VCLLENs To my knowledge, no.
Ms. Cohn can 4 answer that more directly than I can.
But I think he hac 5 said, it is not tioe yet.
6 og, gg:Ks Tha_ is my point.
They won 't know 7 until next spring what the criteria are going to be and whht 8 the requirements are necessary for an emergency plan.
Then 9 how can you hold s hearing?
You can hold a hearing, but how 10 do you make a decision?
11
- 13. 7CLLENs I think, Dr. Buck, that as of 12 November 3, when Commission requistions as to emercency 13 plannine go into effect, everyone, the Boards and the O
14 parties, will know that ar :n.
The question of whether or 15 not, as of now, when a hearing should be held in our view, 16 not that NIESCC satisfies those criteria, but whether it now 17 appears that they will be able to satisfy them some seven or 18 et;n t years from now, when, as, and if it ever builds the 19 plant and seeks an operating license, that can be 20 addressed.
Those reg ulations are there.
The parties can do 21 discovery about what the demographics are, what the phycical 22 features are, where people are located, how long it 23 takes to 24
- R. SUCKS That is exactly what 2.206 is designed i
25 to do, is it not?
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1 MR. VCLLEN In the discretion of the Director of 2 Nuclear Beactor Regulation, a rhow cauce hea ring could be 3 held.
In our view, that kind of issue where a plant after 4
more than five years has not gotten c711t, and where you 5 have had the enormous number of significant events since it 6 received a construction permit, it is exactly what ought to i
7 be considered.
8 DR. EUCKs
- 4hst you tre saying is, you don't 4
9 believe that s matter such as this should be left to the 10 discretion of the Director of Pegulation.
11
%R. VOLLEN4 I am not really sayinc anything
- 2 negative with respect to the Director. I am saying 13 ;,sitively with respect to what ought to be considered in a O
14 good cause proceedinc, that is a parallel line.
It seems to 4
15 se that this 3os:1 really need not reach the questica of 16 wnether the Director will or will not, shculd or should not 17 grant the 2.206 petition.
18 DR. BUCKS If there was no good cause proceeding 19 going on, ycu would have to go to 2.205.
Isn't that correct?
4 20
- !R. VOLLEN:
I think that is correct.
i, 21 CHAIRMAN RCSENTHAL:
Thsnk you, Mr. 7c11en.
U
- 12. 1 GORES One final question.
Assuming that the 23 contention is not admitted in the construction permit i
24 extension proceedinc, and assusing further that the 1.206 25 petition that has been filed by the State of Illinois is l
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1 44 I denied, are thera say other resadies available to bring this 2 -- to liticste this matter or to have it looked at?
3 MR. VClLEN I am not aware of any available to 4 petitioners, tnat is to say, intervenors, City of Gary, or 5 Dr. Schults, available within the Commission.
I think the 6 Director of Nuclear Reactor Regulation could always on his 7 own institute a proceeding, but I think other than 8 petitioning under 2.206 or this exirting good rause 9 proceeding, I am not aware of any.
10 CHAIEMAN ROSENTHAl4 Thank you, ?c. Yellen.
i 11 We will take a ten-minute recess, and then we will 12 hear, I a sume, first from ir. Eichhorn.
Is that correct?
l' MR. EICHHORNs Correct.
+.
CHAI??.AN 30SENTHAls Thank you.
15 (Whereupon, a brief raress was tsken.)
16 CHAIRMA3 EOSENTHAls Mr. Eicnhorn, before you 17 commence your argument, I would ask your indulgence.
Ye 18 would request Mr. Goldberg to provide t b rief statement as
~
19 to why the present status cf the Director's considerstion of 20 the 2.206 petition and to, assuming tha t tha t petition has 21 not ts yet been acted upon by the Director, what is the 22 staff's present best estimate as to now it will progress?
23 Mr. Goldberg, if you would come up, and s11 we 24 vant is the statement at this point, and if there in any 25 disrussion ibcut it, we will wait ;ntil your turn for
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1 argument comes up.
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- 13. GOLDSEEG Yes, Mr. Chairman.
i 3
I as authorized to represent on behalf of the 4 Office of Nuclear Reactor Esculation that a Director's 5 decision on the pending 2.206 petition will be issued by th s 6 end of this calendar year.
7 CHAIEXAN EOSENTHAL:
End of this calendar year.
8 All right.
Thank you.
9 All right, Mr. Eichhorn.
Ycu may now proceed.
10 I si;ht say at the outset that it is also a 11 pleasure to have you once again before us.
12 OEAL AEGUMENT 1
13 39 aggALp op 3Ipsco i
14 BY *J!LlIAh IIC:iHGEN 15 ME. IICHHCE5:
Thank you, 3r. Chairman.
It is a 16 plea sure to see you.
I certainly wish it were under 17 different circumstances.
18 I want to point out that certainly NIPSCO agrees 19 with the ultimate conclusion of the Licensing Board in this 20 proceedino Jith respect to intervention petition filed by 21 the group known as the Gary Petitioners and Or. Echultz.
22
'Ja indicated in our briefs tnat it is cur position l
23 that while we agree with that position of :n e 3 card, we do
(
24 have slightly different reasons for reaching that cane 25 conclusion.
'ihile the licensinc 3 card did davelop 1 1
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I discussion of secpe of such a proceeding, and found that the 2 question of emerpency planning and evacuation did not fall 3 within that scope, we think the scope of such a proceeding 4 is more appropriately determined first, of course, from the 5 notice issued by tne Coomission for the opportunity of 6 hearing and for discussion of the question of scope and the i
7 findings set forth in the Cook decision.
8 I need not repeat the language that I believe to 9 be the definition of scope of such a proceedin; as the Board 10 has previously done so in earlier -- during earlier 11 arguments.
12 CHAI2XAN ROSENTHAL:
Do you, Hr. Eichhorn, dispute 13 fg the suggestion of your adversaries that it makes precious O
14 little sense for this evacuation issue to sbide the event of 4
15 the operating license proceedin: by which time the plant 16 presumably would be =uch farther along the road to 17 completion with considerably greater amounts of money i
18 invested in it.
19
%2. $!CHHOENs I do indeed.
20 CHAIEMA3 EOSENTHALs I would be interested in 21 hearinc you on that, because frankly, and I speak only for 22 my.self, th a t to me is a very strong point in favor of your 23 adversaries.
Whether it leads to the conclusion that this
!(
24 is the appropriate f orun to consider the issui is another 25 matter, but ! found it very difficult to understand the O
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47 I ar;ument of yourself and I thinr, it was also the staff's 2 argument that this should abide the event of the operating r
3 license proceeding.
Tri.s is a site suitability question.
4 It seems to se if in fact -- ! do n ' t know whether 5 this is true or not, but this is what your adversaries wish 6 to liti:ste -- in fact, there is reason to believe that this
)
7 site is not suitable for the location of a nuclear power 8 plant that should be determined now an; not the fact of a 70 l
9 or 80 or 80 or 100 percent completed plan'.
10 So, I would be very interestad in knowing right i
j 11 now why you think otherwise.
12 MR. 2!CHHCRN4 I concur in what you are caying, 13 but let ne say that ! think the Commission has established a O
14 method of regulation, hearing, and review that adequa tely 15 protects th? public health and safety in all instances.
16 Now, the question is whether or not we want to do 17 an injustice to the question of scope in this particular 18 hearing in order to get to a satter that, if you will, for 19 common cense reasons we think we should get to, we then have 20 to assume, Jumber One, that the staff will not do its job of 21 continually reviewing --
22 CHAIRMAN ROSENTHAL:
Why do we have to assume 23 that?
We can assume th a t the staff will continue to do its 24 job properly, but under your thesis, the fruits of the staff 25 inquiry will not c:me to li;ht until tn e ope ra ting license.
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- 35. EICHHORN Not necessarily.
If there is a s
2 matter of substantial safety involved, certainly the I
/
3 Com31ssion through its staff under 2.202 or 2.206 request 4
have the opportunity to look into that, make their 5 investigation, and if necessary conduct a hearing.
6 CHAIRMAN SOSENTHAL:
You would leave it entirely 7 then to the staff?
8
%2. E!CHHORNs No.
There is another point, if I 9
may, on these particular questions of site suitability, and 10 granted there are changed circumstances -- no one is arguing 3
11 about tha t -- ! am just saying that changed circumstances 12 don' t necessarily change the. principles of scope in a N
13 particular proceeding, the Commission has looked into the 14' guestions of siting, the question of emergency planning, and 15 has taken certain action with respect to those matters, and 16 has ;iven direction to the staff to ma.<e certain studies, l'7 and to prepare certain reports, and to report back to the 18 Commission, and co the Commission has spoken on this.
19 It is not a matter that is bainq neglected.
It is 20 not something that is necessarily going to be left for seven 21 or 2ight yesrs down the road for hearing in this particular l
22 case.
There are many ongoing studies.
There are criteria 23 being developed for signing, and -- but the Comnission has 24 astablirhed the method of communication and decision-making 25 in those instances.
That is, the Commission has directed i
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I the stsff to make studies, to review plans, if you will, and 2 to report back to the Commission.
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3 They have not directed that they -- such issues 4 are necessarily ri;ht for every ongoing hearing. So, I think 5 we do have a scope question, and if we are coing to do an 6 in dt.stice to it 7
CFAIRMAN ROSINTHALs A scope question.
We, as I 8 noted earlier this morning, had concluded in Cook that the 9 statute provided precious little guidance as to what the 10 scope of a :onstruction permit extensior. proceeding was, and 11 this was essentially left by the statute to be determined on 12 a case by case basis, taking into account th e totality of 13 circumstances.
14 '
Now, where do you find any rigid standard laid 15 down by the Congress or the Coscission or anyone else with 16 regard to the scope of one of these proceedincc?
I'7 gg. I!CHHORN Well, we do not find that rigid 18 standard laid down, and obviously and clearly such a search 19 was made in the Cook case, and I think a well-reasoned 20 decision was arrived at, and a definition of secpe was 21 provided in that decision.
22 would like to call your attention to a specific 23 statement in that case which I think holds true in this k
24 case, that the fundamental purpose of that hearing, 25 referring, of course, to a CF extension hearing, ic, after N
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50 1 all, not tc istermine the safety or environmental aspects of 2 the reactor in question.
3 Now, if we say, well, common sense says that we 4 ought to look at emergency plans and site suitability in 5 determining good cause, then why not look at every other 6 issue that is safety related? I think it broadens the scope 7 of such a hearing beyond that which would -- this Board 8 specifically found not to be the scope of such a hearing in 9 the Cook case, and it does an injustice to any precedent 10 that is established as far as scope is concerned in these 11 proceedings.
12 CHAIRMAN ROSENTHAL:
Your opponents argue that 13 Cook presented quite a different situation, in that in Cook, 14 unlike he ', the plant war.uch farther along the way to 15 completion, and here, you are dealing with a plant -- I 16 realize the 1 percent figure has been bandied about -- but l'7 let's agree, a plant in the early stages of construction, 18 and where the issue tha t is sought to be litigated is one 19 that goes to site suitability, now, why aren't your 20 adversaries correct when they say tha t that is quite a 21 different situation than the one that is present here, and 22 given the observations in the Cook opinion about taking into 23 account the totality of circumstances, et cetera, a
(
24 different result should obtain?
25 ER. EICHHORN:
All right.
Well, my adversaries O.
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1 are saying, Number One, that there is a small amount of 2 construction done, and Number Iwo, there have been changed 3 circumstances, and therefore the scope should be broader in 4 this case than in Cook, but if you will look -- well, let me 5 start that over again.
6 If you are looking for changed circumstances, 7 there are going to be more changed circumstances as the 8 completion of the plant nears its end.
That is, a plant 9 that is almost complete in construction is going to have 10 several design changes that the Bailly plant does not have, 11 and so you are going to have an opportunity for more changed 12 circumstances closer to the time of completion of a plant, 13
(}
and certainly that argues toward a broader scope of hearing 14' the nearer the plant is to completion than it does in this 15 instance.
16 Sacondly, I think that if you are going to look 17 toward the amount of construction to determine the scope of 18 such a hearing, you are in affart saying, why should we not 19 relitigate all matters that were considered during the 20 construction permit hearing, because in effect there has not 21 been a lot of construction going on, and we ought to start 22 all over again?
23 CHAIRMAN ROSENTHAL:
Maybe it could be narrowed t
24 down to say that you open it up to further consideration of 25 issues going to site suitability in circumstances where ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
5 C:)
1 there are alleged and I take it from what you say conceded 2 changed cirumstances.
Couldn't it be narrowed at least to 3 that extent?
4 MR. EICHHCEN Well, even if you say that you can 5 astablish a principle of scope that is -- th at talks 6 specifically about issues, these particular issues, I think 7 the Commission-has spoken to and has determined how they 8 will be handled, at least for the time being, and that it is 9
not within the jurisdiction of tne Licensing Board at this 10 point in time to eschew the Commission's clear mandate in 11 these proceedings, these matters, and broaden its own 12 jurisdiction to decide it on its own for a particular case.
13 CHAIRMAN ROSENTHAL:
Are you saying that these
()
14' issues are not justiciable at this point because the 15 Commission has lef t them for later determination?
16 MR. EICHHORN:
No, the Commission is in the l'7 process of making determinations with respect to sito 18 studies, if you will.
19 CHAIi?AN ROSENTHALs That may be right, but I do 20 not know that that goes to the question as to whether the 21 contention is adcissible or not.
That may go to whether the 22 contention can be litigatad in the sense that there is a 23 standard against which it can be measured.
I don't see how 24 that goes to the question of admissibility as being wi thi..
25 or without the scope of the proceeding.
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Cl) 1 3R. EICHHORNs Well, yes. Are we talking about the 2 site suitability issue?
3 CHAIRMAN ROSENTHALs I as talking about -- Let me 4
try to put ny problem in concrete terms?
Here we have a 5 petitioner -- petitioners contending that this site is not 6 suitable for the placement of a nuclear power plant.
- Now, 7 their contention may be meritorious or it maybe totally 8 lacking in any substance.
The question, of course, before 9 us does not go to the merits of the contention, but simply 10 goes to whether it is within the scope of the proceeding.
11 Here is the contention.
Let's assume for present 12 purposes that it is meritorious.
In point of fact, this is 13 an unsuitable site.
Now, one might say that there is no
()
14' good cause to extend the completion date and to allow the 15 plan t to go f orward in circumstances where that plant is 16 going forward on a site which is unsuitable for the 17 placement of a nuclear power plant.
18 Now, if one viewed it that way, one would be 19 compellted to conclude, would one not, that this contention 20 is a proper ingredient of a good cause determination?
So, 21 tell me where I have -- I know I have 7one astray.
I can 22 see it from your smile, and I am sure you are about to tell 23 me where it is.
24 ER. EICHHORNs I certainly cannot agree with you.
25 I will accept your assumptions for the sake of argument, but O
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54 1 I would like to point out that the site was found to be 2 suitable in a hearing.
Now we have changed circumstances.
3 The Commission is looking to the changed circumstances, if 4 you will, and re-evaluation of siting criteria, and has 5 directed how that determination and investigation will be 6 conducted, and the lines of communication for achieving that 7 goal, and that is that the staff has been directed to make 8 reports and to report to the Commission.
9 There has been nothing in any of the current 10 siting regulations that indicates that ongoing hearings II should consider these issues at this time, that holders of 12 construction permits should consider these matters at this 13 time.
The Commission just simply has not made that
(%)
s, 14 determination yet.
IS CHAIRMAN ROSENTHAL:
You are saying the issue is 16 not justiciable.
I'7 3R. EICHHORN
- Tha t is correct.
18 CHAIBMAN ROSENTHAL:
If I understand you 19 correctly, you are advocating -- you are saying it does not 20 make any difference whether an issue of thi, kind is or is 21 not within the scope of this kind of proceeding.
This 22 particular issue, in or out of the scope of the proceeding, 23,is not justiciable for the reasons you just stated.
's 24 HR. EICHHORN:
That is correct, and I think that 25 is true with respect to emergency plans.
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CHAIRMAN ROSENTHALs All right.
That is what you 2 were saying.
~
3 MR. EICHHORHs The Commission has established 4 regulations that will be eff ective in November with respect 5 to emergency planning, but they did not indicate that any 6 additional action should be taken at this time with respect 7 to holders of construction permits.
8 MB. MOORE:
Did they indicate that any additional 9 action should not be taken?
10 ER. EICHHORNs No, but they indicated the 11 necassary artion, and certainly their treatment of the 12 various stages of applicability of the regulations was very 13 thorough, and their silence with respect to current holders
{)
14' of construction permits is rather persuasive in my mind, 15 tha t they did not intend additional action to be taken by 16 holders of construction permits at this time.
There is a 17 statement of what should be obtained in.an application for 18 construction permit.
There is a statement which should be 19 contained in the application for the operating license 20 permit, and how those will be reviewed, and also how 21 operating plants will be reviewed against these new 22 regulations.
23 CHAIRMAN ROSENTHALs I am having some trouble in j
k 24 de te rmining to what extent this argument rests on the fact 25 that we are talking about evacuation rather than some other O
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56 1 safety issue.
2 Supposing, for example, that instead of the
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3 c3ntention being that there is an evacuation problem with 4 this site, the contention was that three months ago there 5 was an Intensity 9 earthquake at the site which rendered
~
6 that site totally unsuitable for a nuclear power plant.
7 Make it Intensity 11, just to make the example extreme.
8 We vil assume that has nothing to do with the 9 reasons assigned for needing the extension.
Would lou in 10 that circumstance argue that this new seismic development 11 could not be the basis of a contention in a construction 12 permit extension proceeding?
()
13 HR. EICHHORN:
Yes.
Again, I think that type of 14' thing agair. does an injustice to the question of scope, of 15 what originally I think and this Board at one time thought 16 under Cook was to be a rather limited hea ring.
Now, this is 17 not to say that there is going to be any jeopardy to the 18 public health and safety.
We still have the Commission 19 staff, we have the Inspection and Enforcemen t Divisions, 20 that are going to see that plants are safely built, and you 21 nave the operating license permit, which requires a rewview 22 of all safety issues before the plant is allowed to operate.
23 CHAIRMAN ROSENTHAL4 You would have no trouble k.
24 about a board holding that there was good cause to grant a 25 construction permit extension and allow the plant to go ALDERSON REPORTING COMPANY, INC.
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.1 forward in circumstances where there remained undeteremined 2 the impact of site suitability, of a Class 11 earthquake --
3 Intensity 11 earthquake.
Do you think the Board could go 4 ahead and make that determination on the basis that we are 5 going to leave that to the staff and to the operating 6 license proceeding?
7 NB. EICHH0HNs Yes, I think there is an argument 8 for that, and the example you use makes it relatively easy, 9 I mean, for the reason that it is very difficult for me to 10 conceive any possibility that the staff could turn their 11 back on such a situation and not investiga*9 it.
12 CHAIRMAN ROSENTHAL:
I know, but as you well know,
(])
13 you test out theories with hypotheticals that are extreme.
14*
MR. EICHHORN4 Yes.
But as this Board again noted 15 in Cook, but for the fortuitous circumstances of a hearing 16 being conducted because of a requested extension, these 1'7 matters would not be the basis of for a hearing except 18 through an action by the staff, and why should a different 19 result obtain simply because this hearing is going on?
20 MB. MCORE4 To some extent, isn't that always the 21 case whenever there is a hearing?
An event takes place that 22 can be labeled fortuitous, and that argument be made.
For 23 instance, if the operating license proceeding were going on, k
24 a hearing were going on, and it happened during the pendency 25 of that hearing, that the Intensity 11 earthquake took O
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,1 place, and there were no seismic contentions in the hearing, 2 isn't it, according to your line of reasoning, as I see it, 3 you would label that fortuitous and say, but why consider 4 it?
5 MR. EICHHORN No, but certainly not in that l
1 6 instance, Mr. Moore, because the operating license is indeed 7 a safety review of the plant and its facilities.
8 MR. 500RE:
But only those contantions that are 9 put into issue.
10 MR. EICHHORN4 Not under 2.760A.
I think the 11 Commission certainly has the right, opportunity, and duty, 12 if y d will, to look at issues of safety even when they are 13 not contested.
14 MR. MOORE:
We bring them up ourselves.
15 MR. EICHHORN4 So I think your analogy is not the 16 same in that instance, as we are talking about here.
I 17 think.we have got to remember that we are looking at a 18 limited hearing that may or may not take place during the 19 course of construction of a f acility, and the fact that it 20 does occur should not be the basis for relitigating t<
whole 21 host of issues that would otherwise not have been litigated 22 until tite operating license permit proceedings.
23 I think that does an injustice to the regulatory k
24 scheme which had been established and developed by the 25 Commission over a period of years, and creates needless ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE, S.W., WASHINGTON. D.C. 20024 (202)554 2345
59 I waste of resources on the part of all concerned.
2 CHAIRMAN ROSENTHAL4 You, I take it, have opposed f'
3 the 2.206 petitoin that was filed by Illinois?
4 MR. EICHHORN4 That is correct.
5 CHAIRMAN ROSENTHALs Did you oppose it simply on 6 the serits that there was no basis for their concerns about 7, the suitability of the site, or did you argue that this was 8 an inappropciate time to consider suitability?
9 3R. EICHHORN
' Jell, I guess I am not prepared to 10 fully respond to that, Mr. Rosenthal.
11 CHAIRMAN ROSENTHALs I can get, I assume, your 12 papers.
()
13 MR. EICHHORNs I have been adrised that we have 14' not yet filad that.
15 CHAIRMAN ROSENTHAL:
You have not filed it?
16 MR. EICHHORN No.
17 CHAIRMAN ROSENTHALs Did you have any opportunity 18 to do that?
Refresh me on the rule.
19 MR. EICHHORN I think we have the opportunity.
20 CHAIRMAN ROSENTHALs The petition was filed last 21 December, wasn't it?
22 MR. EICHHORNs Tha t is correct.
23 CHAIRMAN ROSENTHAL No response has been filed up k-24 to this point by your client?
25 MR. EICHHORNs That is correct.
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CHAIRMAN ROSENTHALs Do you think that it would be 2 a good response to the director that irrespective of the
('
3 serits of the allegations on the part of the State of 4 Illinois, that, Director, you should not invoke your show 5 cause authority, but leave it for the operating license 6 proceeding?
7 MR. EICHHO P'!
Mr. Chairun, I would hate to make 8 that commitment here.
It has been some time since I have 9 looked at tae request.
10 CHAIRMAN ROSENTHALs
'elerically.
I am trying 11 really to get to the foundatior af the argucent that you are 12 a dvan cin g.
It seems to me to vs, if I had not misunderstood O
i3 yo, that it 1. guite appropr1 te to leave a11 of these 14' matters, all of these new d'Me' opments, to either, one, the 15 staff doing something a ', o u t them on its own initiative, or 16 two, the OL proceed).4g.
17 It seeks to me to follow from that that you are 18 really suggesting that it should not be open to someone at 19 this point to file a request, as did Illinois, for a 2.206.
20 MR. EICHHORN No, I am not saying that the 21 opportunity to file a 2.206 request is not present.
22 CHAIRMAN ROSENTHAL:
The opportunity is clearly 23 present.
The regulation allows that.
But really what you L
24 are saying is that that kind of petition in these 25 circumstances should be summarily denied by the Director.
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MR. EICHHORNs W ell, I do not want to make that 2 statement either, Mr. Rosenthal.
I don't th ink that is my 3 position.
We would have to look at the merits of that, and 4 I would be glad to address it on the merits.
5 MR. MOORE:
Is it your position that there are no 6 circums'tancas in a construction permit axtension' proceeding 7 under which an issue may be raised other than the reasons 8 for the extension?
9 MR. EICHHORNs No.
We accept the position stated 10 in the Cook decision as being the accurate statement of 11 scope, and I find that definition of scope, if you will, to 12 be the same as Mr. Rosenthal pointed out earlier, that being
()
13 that in the final analysis, then, the question here comes 14" down to whether the reasons assigned for the extension give 15 rise to health and safety or environmental issues which 16 cTnnot appropriately abide the event of the environcental 17 review facility operating license hearing.
18 MR. MOOREs Then is it your position if you adopt 19 that that it is within the sole power of the Permit E filing 20 for the extension to limit in his application the assigned
)
21 reasons for the delay, an!. hence the limit -- limit the 22 inquiry?
23 MR. EICHHORN.
No, not necessarily.
Certainly if i
k-24 other reasons for delay or for the extension are adduced 25 through evidence at the hearing, and there are safety or l
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62 1 environmental questions arrising from those reasons, I think 2 that they are appropriate.
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3 MR. MOORE Can you tell me wha t your client's 4 present projections are as to resumption of construction or 5 is that more appropriately addressed to staff?
6 MR. EICHHORN Well, to a certain extent it is.
7 We are in a posture where we are awaiting completion of 8 staff review, and we have been in that posture for some time.
9 MR. M00RE4 You have no projections, optimistic 10 projections as to when you might like to resume construction?
11 MR. EICHHORN Well, we are also involved in a 12 proceeding here for a construction permit amendment.
The 13 company position as stated in its financial prospectuses 14 with respect to that, and I believe that position is, and 15 don' t hold se to that, but I believe tha t position is that 16 upon release of the piles, and depending on the conditions 17 that are set forth in that release, and a review of the 18 status of this proceeding at that time, if it should come 19 before termination of this proceeding, the company will make 20 a decision as to what it will do at that time.
21 CHAIRMAN BOSENTHALs You are not legally precluded 22 from going ahead with construction prior to the resolution 23 of the extension proceeding?
24 MR. EICHHORNa Certainly not.
25 I see my time has expired.
The Board did ask for O
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~1 a couple -- very brief statement with respect to standing.
2 CHAIBMAN ROSENTHALs We did not ask for it.
We 3 indicated you were f ree to make one if you wish.
You can, 4 if you wish.
5 MR. EICHHORNs I only want to urge that we are 6 looting toward a common sense approach, if you will, to use 7 the words of my adversaries, with respect to standing.
That 8 is, when a petitioner is seeking to take part in a hearing, 9 that demonstrates interest that could be harmed by that 10 hearing before the standing is determined.
11 CHAIRMAN ROSENTHAL Thank you.
12 DH. BUCKS May I ask a question?
I ask it now so 13 that intervenors can answer the same question in rebuttal.
<~
14-The Licensing Board in one of its orders brought 15 up the fact that the Congress in passing the appropriations 16 bill amended the Atomic Energy Act, particularly Section 17 108, and th. 108B includad a riause which says, except that 18 regulations promulgated under this section shall not apply 19 to any facility for which an application for a construction 20 permit was filed on or before October 1, 1979.
21 Now, what in your opinica or how in your opinion 22 does the supply to the Commission's regulations, rules and 23 regula tions which they put out on August 19, 1980, and to 24 this case in particular?
25 MR. EICHHORNs I am vaguely familiar with what you O
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64 1 are referring to, Dr. Buck.
I don't know the de tails of 2 that legislation.
3 DR. BUCK:
This is an amendment to Section 108.
4 let me read the whole paragraph for you.
It says the 5 regulations promulgated pursuant to this section No, this 6 is particularly concerned with the demographic requirements 7 and so on -- shall provide that no constructoin permit may 8 be issued for a utilization facility to which this section l
9 applies after the date of such promulgation unless the 10 facility complies with the requirements set forth in such 11 regulations, and then it goes on to say, except that l
12 regulations promulgated under this section shall not apply 13 to any facility for which an application for a construction 14 permit was filed on or before October 1,1979.
15 MR. EICHRORN4 I understand, and I expect that, 16 yes, in general, that clearly it would not apply.
17 DR. BUCKS Do you consider that this in a sense 18 grandfathers this, and what does it grandfather it for?
19 MR. EICHHORNa With respect to site suitability --
20 with respect to that particualr thing, perhaps that is 21 correct.
It does not prevent the Commission as they are 22 doing from looking into site suitability and seeking 23 recommendations f rom staff with respect to changes in
(
24 operating plants that may make them safer, looking at sites 25 of other plants, and making recommendations with respect to
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'1 operating procedures or proposed operating procedures.
2 DR. BUCKS It does not hold up construction, in 3 other words.
Is tha t what you are saying?
4 HR. EICHHORN No, I do not think so.
5 DR. BUCK: 'Thank you.
6 CHAIRMAN ROSENTHAL:
Thank you, Mr. Eichhorn.
7 Mr. Goldberg?
8 ORAL ARGUMENT 9
ON BEHALF OF THE NUCLEAR REGULATORY COMMISSION 10 BY STEPHEN GOLDBERG 11 MR. GOLDSERGs Good sorning, Mr. Chairman.
12 The staff submits that the disposition of the 13 present appeals turns on the answer to a single question, 14
- nam ely, what is the nature of a construction permit 15 extension proceeding?
In order to arrive at an answer to 16 that question, the staff believes that it is informative to l
1:7 look first at what it is not.
It is clearly not a new 18 construction permit proceeding, nor is it the equivalent of
\\
19 an eventual operating licen e proceeding.
20 Rather, under the Commission's regulations which 21 appear at Section 50.55B, it is solely a determination of 22 whether there are valid reasons for not completing a 23 particular facility on a timely basis.
As has already been k.
24 noted, the single issue raised in appellant's petitions, 25 namely, emergency planning and evacua tion, is unrela ted to Q
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1 any of the reasons assigned by the applicant for 2 non-completion of this facility.
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3 CHAIRMAN ROSENTHALs That is true, b u't i t m a y b e 4
related to whether it is good cause to permit the utility to 5 go ahead and finish the plant.
6 MR. GOLDBERGs I would submit, Mr. Chairman, that 7 that is not the pappropriate focus for a construction permit 8 extension proceeding.
Section 50.55B of the regulations 9 provides that a construction permit extension can be granted 10 upon a showing of good cause.
It then goes on to identify 11 certain f actors-which could provide the basis for the grant 12 of such an extension.
13 All of these factors provide reasons for not 14* completing the f acility.
They do not introduce reasons why 15 the facility should be completed.
If we were to adopt the 16 position of the appellants, namely, that a construction 17 permit extension proceeding should in affect be a proceeding 18 to reconsider the grant of a construction permit at the 19 outset, we would be doing violence to the Commission's 20 two-stage licensing process, which has been endorsed by this 21 Commission and the Courts on numerous occasions included in 22 the cited authority in the staff's appeal brief by 23 introducing a third substantive safety proceeding into the 24 process. which is not contemplated by the regulations, nor 25 is it borne out by the Commission pr4ctice over time in O
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1 which there have been dozens of construction permit 2 extension proceedings.
3 CHAIRhAN ROSENTHALs Do you accept, Mr. Goldberg, 4 the Licensing Board's formulation of the Cook standard as 5 being that health and saf ety issues may be litigated in an 6 extansion proceeding even though they do not directly relate 7 to the delay in construction and do not arise from the 8 reasons assigned for the extension if the Board vece to 9 determine preliminarily that they must be heard in order to 10 protect the interests of the intervenors of the public.
11 I ask that question because Ms. Cohn relies very 12 heavily on that Licensing Board characterization of Cook, 13 and Mr. Eichhorn, on the other hand, in his brief attacked 14 this standard as being a misapplication or misinterpretation 15 of Cook, and the staff, if my memory serves ne correctly, 16 did not attack the Licensing Board standard, and therefore 17 possibly by implication accepted it.
18 The Licensing Board again clearly indicates in its 19 view, in order to be within the scope, the issue need not 20 arise f rom th e reasons assigned for the extension.
21 MR. GOLDBERGs Mr. Chairman, the staff does not 22 accept that formulation of the scor.e of an extension 23 proceeding, and made its views twice known to the Licensing 24 Board in exceptions to their first provision 1 and later 25 final special prehearing conference order which designated ALDERSON REPORTING COMPANY, INC.
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68 1 the parties to be admitted in this proceeding.
2 It believes first that that is an inappropriate 3 9xpansion of the s: ope designated by this Appeal Board in 4 Cook, so tha t the safety issue no longer must bear some 5 nexus to the groundu for the extension.
And as I would 6 further note, the staff, of course, did not urge the Appeal 7 Board in Cook to adopt the standard that it ultimately did 8 devise, and we would submit that this might be an occasion 9 to reconsider in light of experien'ce with construction l
10 permit extensions what the proper scope of a construction 11 permit extension should be.
12 CHAIRMAN ROSENTHALs You are asking for
()
reconsideration of Cook and the adoption of the position the 13 II staff advanced in Cook?
Did we there reject it?
15 MR. GOLDBERGs We don't believe it is necessary to 16 reach that question here, because we do not have an issue l'7 that is related to a reason assigned for the extension, so 18 even the Cook standard for the scope for admission of safety 19 issues comes into play, but we would submit that if in the 20 consideration of the present appeals, this Appeal Board is 21 to be persuaded that an extension proceeding should be 22 something moie than an inquiry into whether or not there are 23 valid grounds for not co mple ting the f acility, that it take s
24 this occasion to articulate such a standard.
25 We would contrast the provisions of 50.55B which
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I simply require good cause for non-completion with the 2 requirements of 50.35 relative to the grant of a 3 construction permit and 50.57 relative to the grant of an 4 operating license where the Commission did prescribe 5 substantive safety findings that must be met in order for 6 the grant of those respective licenses.
7 There is not a similar specification of 8 substantive safety issues for the grant of a construction 9 permit extension.
10 CHAIRMAN ROSENTHAL:
All I can say is this, that 11 if the staff was dissatisfied with the Cook articulation, it 12 seems to me that it should have sought to have us overrule 13 legislatively.
You have a rulemaking division in the office
[
4 1.
of the Executive Legal Director which as far as I can see 15 has no hesitancy when it disagrees or the head of that 16 office disagrees with Appeal Board decisions to come up with
/
I 17 a charitable or uncharitable amendment, as the case may be.
18 So, speaking again just for myself, the suggestion 19 made this morning that we might wish to reconsider Cook and 20 confine the inquiry to how good, bad, or indifferent the 21 reasons assigned for the extension might be, falls on quite 22 deaf ears.
j 23 MR. GOLDBERGs I will not press that matter 1
24 further.
I do not believe, given the nature of the issues 25 sought to be introduced, that we have to reach a A\\/
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I re-exposition of the scope theory.
2 Turning now to the specific issue raised in the 3 appellant's petitions, namely, the subject of emergency 4 planning, I would note that that is, as has been pointed 5 out, the subject of a pending request for action under 6 Section 2.206, and if the Director of Nuclear Reactor 7 Regulations finds there is meri' to that petition, he vill 8 initiate appropriate procedures.
9 CHAIRMAN ROSENTHAL:
Your adversaries indicate 10 that that is all well and good, but it is a half leaf, 11 because the Director in his wisdoa, if he chooses not to 12 institute the 2.206 -- grant the request, they have no
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13 appellant remedy.
9I MR. G01DBERGs It is only half a loaf if you 15 accept the proposition, which I would submit certainly if 16 the petition is not granted, there is the risk that there l'7 will not be present evidentiary hearings to explore this 18 question.
19 However, the terms of Section 2.206 assure 20 Commission consideration of any ultimate Director's 21 determination, and the Commission is free to fashion some 22 sort of proceeding if it believes it is warranted, but this 23 avenue for obtainiig consideration of issues during the 24 course of construction of a facility has been endorsed by 25 the Commission very recently.
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1 CHAIRMAN ROSENTHAL Is it the contemplation of 2 the Commission that the Director is going to take a year to
('
3 act on a 2.206 petition?
As I understand it, Illinois filed 4 this petition last December, did it not?
5 MR. GOLDBERG4 Correct.
6 CHAIRMAN ROSENTHALs You told us earlier this morning that the Director will act on it according to the 8 latest information by the end of the year.
That translates 9 itself into a full calendar year.
Is that standard for the 10 Director, or is there some special consideration here that 11 warranted -- on the face of things seems to have been an 12 unduly long period of time under consideration?
13 MR. GOLDBERGs The applicable regulation dces not
(}
14'specify an express time period within which the disposition 15 of Section 2.206 requests must be arrived at, and in fact, 16 without apologizing for the length of time it has taken the 17 Director to formulate a position here, there have been 18 instances when requests have remained outstanding for longer 19 than this period of time, but I think importantly, 20 obviously, this is an important issue.
It is an issue which 21 the staff has attempted to enlist the support of the Federal 22 En erg y Management Agency in giving consideration to this 23 issue.
(
24 The relationship between the NRC and FEMA is one 25 of recent origin, and the relationship can be expected to LO O_
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72 C) 1 sore cooperative and improve over time.
Also, ther is some 2 recognition that this is a plant that is in the early stages
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3 of construction.
It does not pose any risk ' to th e health 4 and safety of the public, and we do not look at it as an 5 unreasonable length of time to take to determine the merits 6 of that particular action.
7 If there are any further proceedings or 8 requirements that are necessary as a result of that, there 9 is ample time to implement those without affecting the 10 public health and safety.
11 I would also submit that this extension proceeding 12 should not be looked at in isolation f rom the entire Bailly
()
13 process.
As no+ed in our appeal brief, Bailly has been 14' marked by a particularly litigious history, both during the 15 course of construction permit hearings and including at 16 least two unsuccessful attempts to initiate l'7 post-construction permit hearings on a variety of issues.
18 While I have the utmost respect for opposing 19 counsel in this argument, I would submit that what we have 20 is an additional effort by many of the same litigants to 21 litigate many of the same issues in yet another forum, and I 22 feel that due process and reasonable administrative practice 23 would commend that there has to be an and at some point to 24 the litigation of whether or not Bailly should receive a 25 construction permit.
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1 CHAIRMAN ROSENTHALs Do you deny that there have 2 been changed circumstances which might apply to the question
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3 of the suitability of the site?
4 MR. GOLDBERGs The only circumstances I am aware 5 of is the possible implementation of new siting criteria 6 which as Dr. Buck has indicated with regard to the NRC 7 appropriation authority and indeed the Commission's advanced 8 notice of proposed rulemaking may or may not be applied to a 9 facility such as Bailly for which a construction permit was 10 submitted in October -- before October, 1975 -- 1979.
11 CHAIRMAN ROSENTHAL Your opponents point to the 12 Three Mile accident and different, if I may put it this way,
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13 focus upon evacuation that resulted therefrom, whether ther 14' are right or wrong about that.
They have not had a chance 15 to litigate it up to this point, have they?
And tc talk 16 about this -- the Bailly case having been in a number of 17 different forums and subject to a wide variety of papers 18 hither and yon which I think we are all familiar with, but 19 this particular question which they seek to litigate in this 20 proceeding, they have not had prior opportunity to do so, 21 have they?
22 MR. GOLDBERGs Of course, the entire matter of 23 nuclear licensing and regulation, as the courts and tnis 24 Commission have acknowledged, a dynamic process.
There are 25 always going to be developing criteria during the course of O
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1 plant construction.
There is always going to be new 2 information.
The staff is committed to factor in all c' the 3 considerations which have been advanced here this morning, 4 and in the various petition papers filed before this --
5 before the Atomic Safety and Licensing Board in arriving at 6 a reasonable determination in connection with Section 2.206 7 petition, whether or not these would suggest that a 8 proceeding should be instituted to suspend construction of 9 the Bailly facility.
10 That provides a present real avenue to obtain 11 consideration of those issues, and it ultimately will be 12 reviewed by the Commission should it differ with the
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13 Director's decision on that score.
14' CHAIRMAN ROSENTHAL:
If that remedy were not 15 available, would you still rest on the two-step licensing 16 process?
I'7 MH. GOLDBERG4 I do not think, given the Court 18 decisions, many of which have arisen in connection with 19 aspects of the Bailly project, including the pile foundation 20 matter, whic r think can be analogized to emergency 21 planning considerations.
Certainly, the question of the 22 adequacy of a pile foundation is one that is central to the 23 issue of whether or not a plan can be safely built and
(
24 operated at the Bailly facility, and yet the Commission took 25 the position that the risk that the pile foundation will not O
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I prove satisfactory at the operating license stage is borne 2 by the applicant.
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3 I see no basis for departing from that same 4 rationale in this instance, particularly given the icnguage 5 of 50.55B, which does not seem to require that we embark on 6 a fresh assessment of whether or not a previously licensed 1
7 facility should be built.
8 CHAIRMAN BOSENTHAL:
In the final analysis, your 9 position, then, I take it, is this, that if there were not a 10 vehicle for exploring into site suitability at this point, 11 and.it had to wait until the oparating license proceeding 12 commenced, and it were then determined that the site were 13 not suitabla, and the plant was then 90 percent complete and 14'had to be scrubbed, so be it.
15 Is that really what it comes down to?
16 MR. GOLDBERG Yes.
Of course, that assumes the 17 unavailability of the 2.206 avenue.
18 CHAIRMAN ROSENTHAL:
That is why I asked you if 19 that were unavailable, you would still be pressing the 20 two-step licensing process concept, and you answer was yes.
21 MR. GOLDBERG Yes, I would, because the staff has 22 been given the responsibility which it takes very seriously 23 as evidence in the Bailly project by its own imposition of a 24 stay of construction while it examines the adequacy of the 25 pile installation proposal.
It takes very seriously its ALDERSON REPORTING COMPANY, INC.
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1 Commission implementa tion of the instruction in the 1980 2 Authorization Act, is in its publication of advance notice
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3 of proposed rulemaking on reactor siting, and not in the 4 Commission's implementation of new emergency planning 5 requirements, but as to the applicability of the new 6 requirement on emergency planning, I would note that they 7 impose requirements upon a construction permit, and 8 operating license applicant, but do not impose requirements 9 upon plants under construction.
10 In other words, there is no present requirement 11 that a plant under construction must be presently upgraded 12 to satisfy operating license level requirements in the area 13 of emergency planning, which could be the net effect of 14' litigating the present adequacy of the emergency planning in 15 this proceeding.
16 CHAIRMAN ROSENTHAL:
Supposing that we were to 17 agrae with your adversaries that the contentions under 18 consideration are within the scope of this proceeding, and 19 were to instruct the Licensing Board to admit the 20 petitioners as intervenors and also to accept the 21 contentions for litigation, what do you perceive would be 22 the standard against which those contentions would be 23 seasured?
(
24 MR. GOLDBERGs Frankly, I think there would be 25 considerabia doubt.
It seems to me we have criteria tha t O
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1 are applicable for a construction permit applicant, and we 2 have certain criteria that are applicable for an operating 3 license applicant, and it really is uncertain what criteria 4 ve would apply in terms of judging the present sufficiency 5 of the Bailly emergency plans.
6 CHAIRMAN ROSENTHAL:
It could be.
Just to give a 7 concrete example of this, you heard Mr. Vollen deliver Dr.
8 Schultt's prepared statement.
Dr. Schultz focused on the 9 problems tha t would be attendant upon evacua ting the Indiana 10 State Prison.
Now, is it clear as you understand it under 11 the existing regulations tha t might apply to Bailly that tr e 12 evacuation or the evacuability of the prison population 13 would have to be considered?
14' MR. GOLDBERG4 My understanding, M r. Chairman, is 15 that Indiana State Prison lies approximately 12 or so miles 16 from the Bailly f acility.
17
. CHAIRMAN ROSENTHAL:
That is my understandina.
18 MR. GOLDBERG The new rules require at th e 19 construction permit stage preliminary consideration and at 20,the operating license stage final consideration for plans 21 that will ensure that protective measures can be im;1emented 22 in the event of an emergency to protect a population within i
23 a ten-mile cadius.
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24 Those rules also indicate that the precise area of 25 the emergency protection zone is not fixed in any given O
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1 instance, so it could be that certain demographic j
1 2 considerations or other particular considerations that are
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3 peculiar to a site could be taken into account, and the 4 staff has invited Dr. Schultz and has used this forum again 5 today to invite his to participate with us in the course of 6 our deliberation over the merits of the 2.206 petition in 7 trying to see whether or not there is any reason that we 8 have to believe that effective emergency plans cannot be 9 implemented for the Bailly facility.
10 DR. BUCK:
Mr. Goldberg, going back to my quection li that I asked Ms. Cohn, effective emergency plans do not 12 necessarily requira evacuation of any particular person 13 within any particular range.
They require protection.
Is
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14" that not correct?
15 MR. GOLDBERG:
That is correct,
.r.
Buck.
16 DR. BUCK:
Thank you.
17 MR. GOLDBERGs Evacuation is an i xtreme f orm of 18 protective action that could be required in the event of a 19 nuclear accident.
20 DR. BUCK:
The thing that bothered ke about the 21 hearing and the PL 96-295 is that the Federal Rt71 ster 22 notice of the rules and regulations issued on August 19 23 specifically states that they are in conformance with PL 24 295.
I do not see how they can be in conformance with PL 25 295 and really insist that this plant meet some unknown 1
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2 Am I correct in that 17terpretation?
3 MR. GOLDBERG:
Not being the architect of those 4 regulations, I --
5 DR. BUCK:
I am not a lawyer.
I only know what I 6 read here.
7 M8. GOLDBERG:
I am, unfortunately, but have no 8 more insight into the intention of the Commission in 9 structuring the new rule along thosa lines than you might 10 have.
11 CHAIRMAN ROSENTHAL Did you indicate might or 12 aight not be that the Illinois -- Indiana prison would have 13 to be taken into account?
I thought you said, well, it is
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14' basically a ten-mile provision, but that on a case to case 15 basis it might be acre than ten miles.
16 MR. GOLDBERG:
It is certainly conceivable, l'7 although I am by no means indicating that it will, that 18 consideration will be given to what measure of protective 19 action is necessary in the event of an emergeny.
20 CHAIRMAN ROSENTHAL:
By regulation or --
21 MR. GOLDBERGa In context of the staff's 22 consideration of the adequacy of emergency planning at the 23 Bailly facility.
24 CHAIRMAN ROSENTHAL:
Do you envisage that in a 25 let 's move this on to the operating license proceeding.
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81 1 Assume it was coming up today rather than this construction 2 permit extension proceeding.
As you see it, could there be 3 litigated in that operating license proceeding whether 4 adequate protective measures have been taken for the prison 5 population?
6 MR. GOLDBERG:
Yes, I could conceive an issue that 7 would allege that the emergency planning should encompass 8 this particular fa:ility.
I am not committing the staff 9 here today 2.s to what its position would be, or in fact it 10 would require an emergency plan that might include actions 11 up to and including the evacuation of that particular 12 facility.
(}
13 MR. MOOREs What is the staff's present best 14' ess imate as to when construction could resume at Bailly if 15 the applicant wanted it to go forward?
16 MR. GOLDBERG4 We indicated to the Licensing 17 Board, Mr. Moore, that we will issue all evaluation of the 18 pile foundation proposal on or about October 15 of 1980, 19 this month.
Assuming that that report is' favorable, there 20 is no longer any bar to proceeding with construction.
21 Precisely what period of time migh t be required to 22 resobilize the construction force, I cannot answer, but 23 there would be nothing from proceeding with plant 24 construction.
25 The point has also been made by the appellants and O
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e2 1 a party in support of their appeal that the disposition of 2 the present appeal vill have a limited impact on the scope 3 of the present extension proceeding.
In fact, the staff 4 would submit that that is not the case at present.
The 5,I1 censing Board has not found that there is any necessity to 6 tdmit for present litigation any safety issue.
7 I would suggest that if the Appeal Board were to 8 reach the conclusion that emergency planning was the kind of 9 issue that requires present adjudication in this extension 10 proceeding, that the scope of the existing proceeding would 11 be substantially expanded with the considerable additional 12 expenditure of resources on behalf of all parties.
(}
13 It would, moreover, perhaps even have more 14 profound implications for the practice of treating 15 construction permit extensions which, as I alluded to le earlier, there have been dozens in the past and several 17 pending.
In fact, in one case, nine separate extensions 18 were granted, and that is in the Diablo Canyon facility 19 which, as this Appeal Board may be aware also was and is a 20 highly contested project, with issues including seismicity 21 being among the matters that are in controversy.
22 So, we would just like to take the view that this 23 appeal should not be seen as merely affecting the interest 24 of the Gary and Dr. Schultz petitioners alone.
25 I have nothing further.
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l MR. MOORE:
You earlier indicated you were 2 authorized to state that it was the Director 's present 3 intention to determice whether the 2.206 petition would be 4 granted or denied by the end of this year.
In the 5 Director's letter of July 31, 1980, to the Assistant 6 Attorney general of the State of Illinois which is a ppended 7 to the brief of the appellants, it was the Director's 8 intention to undertake certain risk studies in determining 9 -- to help him determine the status of the Sailly peti'.lon, 10 and that those would not be completed until the spring of 11 1981.
12 Do you know whether those risk studies will be 13 g
completed before the Diretor's decision, or whether in 14' reaching his decision those will be dispensed with?
15 MR. GOLDBERG:
Mr. Moore, my answer to Chairman 16 Rosenthal earlier is on -- would replace the representations l'7 made in the July letter to Mr. Hansel.
The decision has not 18 been reached whether or not to require those additional 19 studies.
20 CHAIRMAN ROSENTHAL:
Thank you, Mr. Goldberg.
21 Ms. Cohn, you have ten minutes.
22 MS. COHN.
Going back to the Chairman's 23 observation that the statute provides precious little 24 guidance as to what good cause means, I would like to try 25 and explain one more time why I believe that whatever we ALDERSON REPORTING COMPANY. INC.
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%J I think good cause means, the availability of another 2 proceeding, n a m 2.l y, a 2.206 proceeding, should have nothing 3 to do with it, and that is basically because whenever we 4 have a safety or environmental issue raised with respect to 5 an extension proceeding, the argument can be raised in every 6 case that there is always this alternative forum in which 7 the safety issue can be raised.
8 Therefore, if we deny our contentioD on the 9 availability of a 2.206 proceeding in thir case, one would 10 assume that the same would hold true for every other 11 proceeding, and I believe that in Cook this Board already 12 determined that that should not be the ultimate result, and f) 13 instead, tha t the question of what good cause means is one u/
l'I that should be detarmined on the basis of the facts and 15 particularly whether common sense tells us that the issue 16 being raised is one that cannot avait re view at the l'7 operating license stage.
18 In this respect, we think that this case is not 19 too far afield from the Chairman's hypothetical about Class 20 11 ea rthquake, and that is because we have here very recent 21 recognition about the possibility of Class 9 accidents 22 coupled with the identificatior, of Bailly as being perhaps 23 the worst site in the whole country from a population and k
24 therefore emergency planning perspective.
25 Therefore, we would succest that what the Board ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE. S.W., WASHINGTON, D.C. 20024 (202)554-2345
85 I has to do is independently determine what the scope of this 2 proceeding is and what the scope of a good cause finding
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3 requires.
4 One last point with respect to the 2.206 5 proceeding, aside from the fact that we have no assurance as 6 to how the Director of Nuclear Reactor Regulation will 7 exercise his discretion as to whether to institute one or i
E not, we would also like to point out that in this 9 proceeding, NIPSCO has the burden of demonstrating that good 10 cause for an extension exists, whereas in a 2.206 11 proceeding, the staff or the Gary petitio. rs, if 12 participating in that proceeding, would in fact have the 13 burden of demonstrating that circumstances warrant 14' suspension or relegation of a =onstruction permit.
15 I believe tha t on the burden of proof, the 16 substantive standard may be somewhat different.
17 With respect to Dr. Buck's question --
18 CHAIRMAN ROSENTHAL4 I am not so sure you are so 19 right on your view of where the burden of proof lies in a 20 show cause proceeding.
Are you familiar with our Midland 21 decision?
22 MS. COHN I.have to confess I am not.
23 CHAIRMAN ROSENTHAL.
To the consternation of the k.
24 applicants and generally and I think the sta f f as well, we 25 held that cn certain matters the burden in a show cause m
k/f, ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE. S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 proceeding rested with the licensee.
2 MS. COHN:
That is reassuring.
Thank you for 3 pointing that out.
4 CHAIRMAN ROSENTHAL:
I don't think that as yet has 5 been overturned by the Commission, although an effort was 6 made to get the Commission to do so.
7 MS. COHN:
With respect to Dr. Buck's question, in e
8 which he raised the effect on our position of the 9 appropriate -- the NRC appropriations bill, we agreed that 10 new regulations that will be promulgated some time in the 11 future have not been promulgated thus far.
Those are not 12 what should determine the outcome here.
jf1 13 What we tre sgying is that we have to apply V
14' whateve' t riteria, standards, or policies are in effect 15 today, and that under these criteria, for example, if Bailly 16 were to be the subject of a new construction permit hearing I'7 on the question of site suitability, it is our position that 18 this site would not be approved, and applying those 19 standards, we believe that the licensing Board can 20 appropriately make a determination about, as a threshold 21 matter, as to whether evacuation is feasible.
22 DR. BUCK:
Even though it was essentially 23 granffathered by the Act?
k.
24 MS. COHN:
It was grandf athered with respect to 25 whatever new specific criteris are adopted some time in the Q
ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202)554-2345
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1 future.
We don't even know what those criteria vill be, but 2 we do know that the Commission has indicated tha t the fact 3 that new sitinc criteria vill not apply to existing 4 construction permits, does not mean there is not a public 5 health and safety issues raised by the fact that there are 6 existing plants located in areas of high population density, 7 and that something has to be done about them.
8 Finally, with respect to Mr. Goldberg's last point 9 about what the scope of the hearing which the licensing 10 board will be conducting is, he indicated that the Board has 11 not admitted any other safety issues, and therefore the 12 admission of the Gary contention would significantly expand l9))
rN 3 the scope of the hearing already going on.
14' I would just like to point out that that depends 15 on what you call a safety issue.
Ihere have in fact already 16 been contentions admitted, for example, which relate to the l'7 questions of whether the reasons for not getting Bailly 18 built indicate that NIPSCO does not have the proper 19 competence f or comple ting the plant in a safe manner.
20 The issues of the pilings proposal which raises 21 some safety matters is also still under consideration, and 22 there are environmental contentions that have already been 23 admitted.
I 24 DR. BUCK Was there a contention on competence?
25 MS. C0HNa I am not exactly sure of the wording.
ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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\\v 1 I believe Mr. Vollan can maybe specify if what I have said 2 is not clear.
3 DR. BUCK Maybe I just don't remember it.
It 4 does not mean' there is not one there.
5 MS. COHN But I believe that to be the case.
6 Unless there are further questions, I am through.
7 CHAIBMAN ROSENTHAL:
Thank you very much, Ms. Cohn.
8 As I indicated before, it is nice in a cense to 9 have the Bailly case and some of its participants back with 10 us.
11 On behalf of the entire Board, I would like to 12 thank counsel for their informative and helpful arguments.
13 On that note, the appeals of the City of Gary, et
- 14. al., and George Schultz, will stand submitted.
15 (Whereupon, at 12:25 p.m.,
the hea ring was 16 concluded is described above.)
17 18 19 20 21 22 23 24 25 AkJ ALDERSON REPORTING COMPANY, INC.
400 VIRGINIA AVE, S.W., WASHINGTON. P.C. 20024 (2021554-2345
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_L mb MUCLEAR REGULATORY CNCiISSION This is 00 Oertify tha; the at:schec prcedecings before the in the natter Of: Northern Indiana Public Service Company (Bailly)
Cace Of ?r0cescing:
October 2, 1980 e
Docke Musber: 50-367 (Extension)
Place of ?r0ceecing:
Bethesda, Maryland were held as herein a;;ehrs, anc that tr.is is the Original transcri;;
therecf for the file Of the C0==issi0n.
I David S.
Parker Official :.eper:er (Typec) l j
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