ML19347B621

Forwards Comments on Behalf of Util Re 800924 Ltr from Six Organizations to NRC on ASLB Proceeding About Util Application for Extension to Const Completion Date.New Info & Allegations Do Not Warrant Suppl Eis.W/Certificate of Svc

ML19347B621
Person / Time
Site:	Bailly
Issue date:	10/10/1980
From:	Lowenstein R, Newman J, Shea K LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Harold Denton Office of Nuclear Reactor Regulation
References
NUDOCS 8010150455
Download: ML19347B621 (11)

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i _ ;,  : ,: .E u J' Mr. Harold Denton ~\ W l :

Director, Nuclear Reactor Regulation /

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s U.S. Nuclear Regulatory Commission M Washington, D.C. 20555 Re: Docket No. 50-367 Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1)

Dear Mr. Denton:

On September 24, a number of organizations addressed a letter to Chairman Ahearne which records the opinion that granting of an extension, requested by the Northern Indiana Public Service Company (NIPSCO), to the construction permit for Bailly Generating Station, Nuclear 1, necessitates issuance of a revised or supplemental environmental impact statement.

We have prepared the enclosed comments on that letter and herewith submit them on behalf of NIPSCO. This letter and the enclosure are being served on the Licensing Board in the extension proceeding and all other participants.

Very truly yours, LOWENSTEIN, NEWMAN, REIS, AXELRAD

& TOLL i

Counsel for Northern Indiana Public I Service Co any l By: -

d, @Lu .

KHS/ar i Enclosure 8010150'/56 g SS l

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l NIPSCO'S COMMENTS ON SPETEMBER 24, 1980 LETTER FROM SIX ORGANIZATIONS

, I. Introduction Northern Indiana Public Service Company (NIPSCO) has applied to the Nuclear Regulatory Commission (NRC) for an extension of the latest completion date specified in the construction permit for Bailly Generating Station, Nuclear-1 I

(Bailly). This application is currently pending before an Atomic Safety and Licensing Board designated by the Commis-sion to rule on the application.

On September 24, 1980, six organizations 1/ (Organiza-tions) submitted a letter (Letter) to Chairman Ahearne of the NRC which set forth their opinion that granting an exten-sion of the construction permit for Bailly would require the NRC b

to issue a supplement to the environmental impact- statement - (EIS) prepared in conjunction with the issuance of the construction permit for Bailly.2/ The Organizations state that a supple-1/ National Audubon Society, Sierra Club Legal Defense Fund, Natural Resources Defense Council, National Wildlife Federation, Izaak Walton League of America, and National Parks and Conservation Association.

-2/ Final Environmental Statement (FES) related to construction of Bailly Generating Station, Nuclear-1 (Feburary 1973) .

. mentcl EIS (SEIS) is required on tha groundo that the extension allegedly is major federal action significantly affecting the quality of the human environment, and that "new information" has become available and circumstances have changed since the issuance of the FES for Bailly.

These grounds are similar to those raised by the Chair-man of the Council on Environmental Quality in a letter dated August 12, 1980, to the Attorney General of Illinois. NIPSCO has previously provided a Memorandum cf Law on the issues dis-

! cussed in that letter.2/ The analysis contained in the Memo-randum of Law demonstrates that the arguments offered by the six organizations are similarly without a basis in the National Environmental Policy Act (NEPA), the Commission's regulations and policies. or pertinent precedents.

These Comments are intended to address the arguments first raised by the Leganizations and to emphasize those points in our previous Memorandum of Law which are especially pertinent to the Letter of the Organizations.

II. The Letter Of The Organizations Provides No Support For Issuance Of An EIS Or Supplemental EIS For The Extension As our Memorandum of Law discussed,d! extension of the construction permit for Bailly is not a major federal action significantly affecting the quality of the human environment.

Consequently, NEPA does not require the NRC to prepare an EIS for the extension.

-3/ The memorandum was enclosed with a letter dated September 5, 1980, from Kathleen H. Shea to Harold Denton.

4/ Memorandum of Law, pp. 2-11.

Nothing in the Organizations' Letter supports a contrary

( conclusion. The Organizations merely assert that the extension is major federal action significantly affecting the quality of the human environment.b! However, they cite no cases in sup-port of their proposition,6/ and they offer no information i

l which would indicate that the extension itself would result l

in environmental impacts which were not analyzed in the con-l struction permit proceeding. The Organizations' unsupported,

.conclusory allegation is hardly a sufficient ground for requiring the NRC to prepare an EIS for the extension of Bailly's construction permit.

l To the extent that the Organizations may be arguing that l

l the existence of "new information" requires the issuance of a l SEIS for the extension even if the extension is not major federal action significantly affecting the quality of the human environ-ment, their arguments are similarly without merit or support.

As discussed in our Memorandum of Law,7/ the issues to be considered in a license amendment proceeding are limited to l those which have a sufficient nexus to the amendment. The l

5/ Letter, pp. 1, 16.

-6/ The Organizations do cite NRDC V. NRC, 547 F.2d 633, 638 l (D.C. Cir. 1976), reversed on other grounds 435 U.S. 519 l (1978). However, the court in that case held that the issuance of an operating license was a major federal ac-tion significantly affecting the quality of the human environment; it did not discuss extension of. a construc-tion permit. Thus, that case is not relevant to the is-sue involved here.

7/ . Memorandum of Law, pp. 12-13.

l

Organizations have not alleged that any nexus exists between the "new information" to which they refer and the extension, and,.in fact, no such nexus is readily apparent.8,/ Thus, the allegedly "new information" does not justify the issuance of a SEIS .?or the extension.

i III. A SEIS To The Bailly FES Is Not Required Independently Of The Extension i

For the reasons described in our Memorandum of Law and in Section II above, an EIS or SEIS is not required for the l extension and the Organizations' conclusions are therefore erroneous. It is also clear that the Letter does not provide any basis for requiring issuance of a SEIS for Bailly inde-pendently of the extension proceeding.

Initially, it should be noted that the NRC licensing structure for reactors expressly requires review of environ-mental issues at two prescribed stages: issuance of the con-i

-8/ If the Organizations are arguing that the impacts of )

construction and operation are an inevitable result of an extension and therefore have a nexus to the extension, their arguments lack merit. Those impacts are beyond the scope of an amendment proceeding when a full environmen-tal review has previously been prepared. See, e.g.,

Northern States Power Co. (Prairie Island Nuclear Gener-ating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 46 n.4 (1978), remanded on other grounds, Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979). Such impacts would be l cognizable, if at all, only if no EIS had been prepared for the construction permit. See Consumers Power Co.

(Big Rock Point Nuclear Plant) , LBP , 12 NRC ,

slip op. pp. 6-11 (Sept. 12, 1980) (referFed to Appeal j

Board); Dairyland Power Cooperative (La Crosse Boiling Water Reactor), LBP-80-2, 11 NRC 44, 65-77 (1980).

Since an EIS has been issued for Bailly, only the incre-mental impacts attributable to the extension would be cognizable in the extension proceeding.

i 1

struction permit and issuance of the operating license. Once 1

a final EIS has been completed and a construction permit has l been issued, as discussed in the Memorandum of Law, any obligation to reopen the environmental record prior to con-sideration of the operating license would be subject to a stringent standard.E! To justify such reopening, any alleged "new information" must present "a significant new environmental impact or information which would clearly mandate a change" in result.10/

Such a standard is necessary to the achievement of administrative finality, without which a manageable regu-latory system cannot exist. As the Appeal Board has stated:

If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.

Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619, 621 (1976), quoting ICC v. Jersey City, 322 U.S. 503, 514 (1944). This standard for reopening an environ-mental record during construction is especially compelling given the fact that "new information" will be reviewed at the operating license stage. See 10 C.F.R. S 51.21 (1980).

None of the cases cited by the Organizations contravenes this basic principle. The only consistent rule that can be 9/ Memorandum of Law, p. 18.

10/ Id.

gleaned from these and other relevant cases is that an agency's required response to new information obtained after an initial

EIS has been completed and approved will vary depending upon a variety of circumstances, including the nature and extent of the fede.ral involvement in a project.11/-

These cases do not man-date the issuance of a SEIS whenever new information is alleged i

j to exist.12/

At most, they simply reflect the view that an agency's NEPA responsibilities are not abruptly terminated when a FES is issued.

It is obvious that the factual allegations of the i

j Organize.tions do not warrant a reopening of the environmental record in Bailly. We have explained at length in our Memoran-dum of Law why a SEIS should not be issued in order to con-

,1 sider Class 9 accidents.13/ -

The other "new information" 1

alleged by the Organizations is also insufficient to justify the issuance of a SEIS.

--11/ In this connection, it may be noted that the NRC has 1

recognized in other contexts distinctions between the application of NEPA to federally-licensed private pro-jects as opposed to federal projects. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

CLI-77-8, 5 NRC 503, 541-42 (1977); consumers Power Co.

(Big Rock Point Nuclear Plant), LBP , 12 NRC ,

slip op. p. 7 (Sept. 12, 1980).

i 12/ The fact that changes have occurred is not a suffi-cient basis for preparation of a SEIS unless those changes are significant. Warm Springs Dam Task ,

Force v. Gribble, 621 F.2d 1017, 1023-26 (9th Ci.. j 1980); Inman Par

• Restoration v. Urban Mass Transp. l Admin., 414 F. Supp. 99, 117-19 (N.D. Ga. 1975). l l

13/ Memorandum of Law, pp. 20-27.

7_

For example, the Organizations have offered no support for their allegations that dewatering has had an effect upon the Indiana Dunes National Lakeshore and Cowles Bog, that the use of short pilings is relevant to a consideration of environ-mental issues, or that the geological characteristics of the site are different than originally projected. Moreover, even if the lack of support is overlooked, there is no indication that this allegedly "new information" is of such significance in relation to the FES prepared for Bailly that it would justify the issuance of a SEIS on these issues.

Similarly, to the extent that the Organizations refer to matters which inevitably change over the years--such as the need for power and costs of constructon--there is no indica-tion that the changes are significant in relation to the Bailly FES. If a mere change in the need for power or in costs of construction were to compel the NRC to update an FES, the agency would be required to prepare supplements continuously.

Obviously, NEPA was not intended to require such a meaning-less and wasteful practice.

i Finally, the alternatives of the Schahfer site and a coal-fired plant at the Bailly site need not be reconsidered upon the basis offered by the Organizations. The Organiza-tions have not explained why the delay in construction of Bailly renders Schahfer more attractive than previously evaluated, nor have they alleged that the move to the Schahfer site would occasion less of a delay than previously estimated I

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or even would be feasible,14/ nor is there any indication that Schahfer would be environmentally preferrable. With respect to the alternative of a coal-fired plant, there is no indication that such a plant with SO2 pollution control equipment would be either environmentally or economically t superior to Bailly. Thus, none of this allegedly "new information" provides a basis for issuance of a SEIS.

In summary, the Organizations have not identified bases for most of their "new information," nor have they shown that their "new information" is of significance in relation to the J

FES for Bailly. Thus, the allegations of the Organizations do not warrant the preparation of a SEIS.

--14/ In fact, the capacity of the Schahfer site (which is limited by available water supply) is fully committed

, to fossil-fueled plants now in operation or under construction.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING SOARD In the Matter of ) Docket No. 50-367

)

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

)

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

CERTIFICATE OF SERVICE I hereby certify that a copy of a letter dated October 10, 1980 to Harold Denton, Director, Nuclear Reactor Regulation, NRC from Kathleen H. Shea with attached Comments was served j on the following by deposit in the United States mail, postage prepaid, on this 10th day of October, 1980:

Herbert Grossman, Esquire U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Glenn O. Bright U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard F. Cole U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Howard K. Shapar, Esquire Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Steven Goldberg, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555

-Susan Sekuler, Esquire Environmental Control Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60601

4 Robert J. Vollen, Esquire c/o BPI 109 North Dearborn Street Suite 1300 Chicago, Illinois 60602 Edward W. Osann, Jr., Esquire One IBM Plaza Suite 4600 Chicago, Illinois 60611 Robert L. Graham, Esquire One IBM Plaza 44th Floor Chicago, Illinois 60611 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana 46312 ,

Diane B. Cohn, Esquire William B. Schultz, Esquire Suite 700 2000 P Street, N.W.

Washington, D.C. 20036 Richard L. Robbins, Esquire 53 West Jackson Boulevard Chicago, Illinois 60604 Mr. George Grabowski Ms. Anna Grabowski 7413 W. 136th Lane Cedar Lake, Indiana 46303 Dr. George Schultz 807 East Cool Spring Michigan City, Indiana 46360 Ds b

• KAfRLEEN H. SHEA Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 l

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