ML19347C186

Response in Opposition to Util 800828 Response to Porter County Chapter Revised Contentions.Contentions Raise Issues Re Delay.Contentions R-I 1 Through R-I 9 & R-I 13 Should Be Admitted.Certificate of Svc Encl

ML19347C186
Person / Time
Site:	Bailly
Issue date:	10/10/1980
From:	Graham R, Osann E, Vollen R, Whicher J IZAAK WALTON LEAGUE OF AMERICA, PORTER COUNTY CHAPTER, VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8010160787
Download: ML19347C186 (10)

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UNITED STATES OF AMERICA

• 3 NUCLEAR REGULATORY COMMISSION 2 ~ ~ ' f 3 m@

7 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD [.Dh*7ikI

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) l NORTHERN INDIANA PUBLIC ) Docket No. 50-367 l SERVICE COMPANY ) (Construction Permit l (Bailly Generating Station, ) Extension) l Nuclear-1) ) l 1 O6 I l

PORTER COUNTY CHAPTER INTERVENORS ' REPLY TO NIPSCO RESPONSE TO NEWLY-FILED CONTENTIONS Porter County Chapter of the Izaak Walton League of America, Inc., Concerned Citizens Against Bailly Nuclear Site, Eusinessmen for the Public Interest,-Inc., James E. Newman and Mildred Warner (" Porter County Chapter Intervenors"), by their attorneys, hereby reply to "NIPSCO's Response to Revised Conten-tions," dated August 28, 1980 ("NIPSCO Response") as authorized

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by the Board's Order Extending Time for All Replies, dated i

September 5, 1980.

Preliminarily, NIPSCO states (NIPSCO Response at p. 3), l l

that none of the newly-filed contentions raises issues related to the delay. This is simply untrue, as NIPSCO itself relies on delays caused by TMI, in its August 31, 1979 let:er to the NRC requesting an extension of the latest ccmpletiondatefortheBaglyfacility.

TMI-related issues are raised by R-I 1, 4 and 7. Similarly, by its reliance on unspecified new Commission regulations and guidelines as support for its new requested latest completion date in its 8010160 7 37 psoS 7 G S */

February 7, 1979 and August 31, 1979 letters to the Board, NIPSCO 4, 7 and 9 as has assigned issues such as those raised by R-I 2, reasons for delay These contentions should thus be admitted even under NIPSCO's restrictive view of the proper scop' of this proceeding See NIPSCO Response at pp. 3-4 1 NIPSCO now asserts that the subs tance of the TMI-related to this issues and new regulations and guidelines are i* relevant 6), in spite of its reliance on them proceeding (NIPSCO Reply at p.

Such an in its construction permit extension application letters. i assertion is both inappropriate and unfair. NIPSCO should not be l allowed to amend its application in the context of its submissions to the Board on the admissibility of Intervenors' contentions. 1 is that, under NIPSCO's position (NIPSCO Response at p. 4) the tes:

enunciated by this Board for admission of contentions not l directly related to the reasons for delay, Intervenors mus: make a the matter cannot be resolved prior to the prima facie showing that l

• Porter County Chapter Intervenors respectfully submit that the Board, in its Order Denying Objections to Orders Following filed October 2, 1980, at p. 6, j Special Prehearing Conference, l has misinterpreted the Commission's intention concerning liti-gation of TMI-related issues. The Cc= mission's Statement of l'

Policy, 45 Fed. Reg. 41737 (June 20, 1980), concerns litigation of such issues only in operating license proceedings. There is nothing in the Statement to indicate that the Commission intended to limit the scope of a "ecod cause" proceeding such as this. Further, the Statement contemplates reopening of operating license hearing records to consider new evidence is significant new evidence, related to TMI issues where "there=aterially affects the decision."

not included in the racord, that 45 Fed. Reg. at 41740. Even applying that stringent standard to the cocstruction permit record in the Bailly case, it is obvious tha- the TMI-related issues should be heard.

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4 requested latest completion date. Tae Board also ruled that in order for an issue arising from the reasons for the delay to be heard, it must be ripe and the proponent of the contention must offer a compelling reason fer not resting on the finding, made during the construction permit proceeding, of reasonable assurance that all safety issues would be resolved by the latest completion date set out in the permit (i.e., September 1, 1979). (Order Following Special Prehearing Conference, dated August 8, 1980, at pp. 17-20) In its February 7, 1979 letter requesting an extension of the latest completion date for the facility, NIPSCO asserts its aeed for a longer construction period because of "more numerous and more detailed regulatory guides." In its August 31, 1979 le::er amending the previous letter. NIPSCO lists the accident at TMI and generic reviews due to TMI as reasons for its new proj ected comple-tion date. The newly-filed contentions assert issues arising fror new developments in the nuclear power field as manifested in the NRC's guidelines and regulations as well as in the reports flowing from the TMI accident. Because each of the contentions mee: the test set forth in the Order for issues " arising from the reasons for delay" they are admissible in this proceeding. Under either formulation of the tes t, however, the contentions here in issue should be imitted in th' o proceeding.

In both its Response and its Reply to State of Illinois Memorandur in Support of Their Newly-Filed Contentions and to Porter County Chapter Intervenors ' Arguments in Support o f th e Admis sibi.'. ity of " Newly-Filed" Contentions, ("NIPSCO Reply"), filed on Saptember 26, 1980, NIPSCO makes much of Por:er County Chapter Intervenors '

purported failure to make a crima facie showing. However, NIPSCO conveniently ignores the facts that ciscovery is not completed and no evidence has yet been presented in this proceeding. To the extent that the Board intended to require any such showing prior to the commencement of the hearing, we submit that the uncontroverted facts, reports and studies listed in the contention satis fy the prima facie showing requirement.

NIPSCO's assertion (NIPSCO Response at p. 5) that R-I 1

" lacks the attributes of a contention" is based on a mi.creading of the contention. This contention clearly asserts that when the TMI accident and the studies referenced therein are conside ad in this proceeding, no finding of good cause for the extension of the completion date of the Bailly plant can properly b.e made by this Board. Similarly, NIPSCO's position that R-I 2 is inadmissible for lack of specificity and basis is unsupportable.* The contention seeks to admit specific significant new developments and their impact on whether good cause can be shown for an extension of the l Sailly construction permit. I i

Contrary to NIPSCO's cssertion, (NIPSCO Response at p. 6, NIP"C0 Reply at p. 3), concerning the Mark II containment vessel, none of Porter Coun y Chapter Intervenors ' contentions, including Contention R-I 3, has been ruled inadmissible in this or any other proceeding. Further, the contention clearly meets the " generic contention" tes: from Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 773 (1977) which NIPSCO submits should control: "because of failure to consider a particular item there has been an insufficient assessment of a specified type of

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risk for the reactor. Similarly, Contention R-1 5 raises the insufficient consideration of other generic problems with General Electric nuclear plants and satisfies the River Bend test.

x In the event the Board rules against the admissibility of this or any other contention on technical grounds of specificity or basis we reserve the rizht to file amended contentions satisfying anv such technical deliciencies. '

NIPSCO misstates the River Bend test: there is no requirement that it be " alleged" : hat "because of failure to consider a particular item there has been an insufficient assessment of a specific :ype of risk." Rather, it must so " generally appear."

Id. at 773.

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NIPSCO (N1PSCO Response at p. 6- 7) states that R-I 4 is insufficient because it does not specify "the manner in which Ecilly's post-accident monitoring system is inadequate." The Contention states the system is inadequate "because it lacks post-accident monitoring capabilities sufficient to inform plant operators of what has happened following a nuclear accident." NIPSCO's position is thus without merit.

NIPSCO (NIPSCO Response at p. 7-8), asserts that ATWS, the i issue raised by R-I 6, was considered at the construction permit I proceeding and therefore should not be considered here. NIPSCO I ignores the thrust o f all the newly-filed safety contentions: that recent developments and newly-acquired knowledge cast serious doubt or the " reasonable assurance" finding made by the original licensing l

board. (See Porter County Chapter Petitioners Objections to, l I

Comments on, Requested Revisions of and Reworded Contentions in l

Response to Provisional Order Following Special Prehearing Conference, '

filed June 30, 1980, at p. 9) . The construction permit board found, under 10 CFR 550.35(a)(4), that there was reasonable assurance that all safety matters would be satisfactorily resolved before the latest completion date in the original application. That date passed more than a year ago and the safety issues raised by the newly-filed l l

contentiens remain unresolved. Clearly, this fact alone casts sufficient douot on the construction permit board's finding to nake  ;

these issues admissible in this proceeding.

4 NIPSCO attacks R-I 7 on the grounds of vagueness and lack of specificity. NIPSCO ignores the wording of the contention, which I states specificuily in what systems problens of worker exposure have

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been experienced, that NIPSCO has failed to resolve this problem, and that it may not be capable of resolution by the new latest requested completion date. The contention thus should be admitted.

The Board, in denying a contention by Local 1010 similar to R-I 8 concerning the adequacy of spent fuel storage disposal capacities, stated that the issue was not ripe. (Order Supplementint Order Following Special Prehearing Conference, filed August 26, 1980, at p. 7) Porter County Chapter Intervenors submit that the issue is ripe: if this hearing were one concerning issuance of a l l

construction permit, the issue would be heatl. If not resolved j before installation of the containment vessel, it may well be 1

incapable of resolution at all. At the minimum, NIPSCO's ability I to resolve this issue should be litigated. The proposed rulemaking  !

proceeding cited by NIPSCO is not a reason to refuse to consider the issue here. The Cc= mission 's s tatement directs that the " issues being considered in the rulemaking should not be addressed in individual licensing preceedings ." 44 Fed. Reg. 61372, 61373 (October 25, n'79) (emphasis added) . There is no prohibition against the consideration of this issue in this proceeding, and the contention should be admitted.

NIPSCO challenges R-I 9 (NIPSCO Response at p. 9-10) as lacking specificity and basis. NIPSCO's position is without merit.

The contention is as specific as possible at this point in these proceedings, and may be rephrased or reworded prior to the hearing.

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s NIPSCO (NIPSCO Response at p. 10) contends that R-I 13 is inadmissible because it was litigated before the original constructiot permit board and further alleges that NIPSCO's financial ability alret* has been ruled inad=issible. (NIPSCO Reply at p. 7). Both 1

1 asser tons are incorrect. The construction permit board dealt with l NIPSC 's financial ability to construct a $150 millica plant, not ,

i a S1.1 billion plant. l l

NIPSCO (NIPSCO Reply at p. 7-8) misstates Pcrter County Chapter l l

Intervenors' suggestiun that the Board allow discovery to enable it l l

to make a prima facie, or other, showing that the safety issues are incapable of resolution by th3 latest requested completion date. l This is not a request for discovery in order to phrase a contention  :

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appropriately, as NIPSCO asserts. Rather, if the Board requires a  ;

prima facie case to be submitted, it should admit Porter County Chapter Intervenors' newly-filed contentions contingent upon such a showing being made by facts established during discovery. Such discovery would allow the Intervenors to stand on equal footing with NIPSCO in regard to access te relevant information and would alleviate the prej udice to Intervenors which could be caused by requiring submission of facts which the Board forbids them to discover. The Eoard has recognized the appropriateness of this procedure in the Order Following Special Prehearine Conference', at pp. 53-54 (" .we will require tha t the facts underlying these assertions be specified before we go to hearing.")

Porter County Chapter Intervenors deny that they have attempted to raise any issue for the first time in the previously-filed argument in support of these contentions, as NIPSCO asserts (NIPSCO Reply, 7

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p. 5 at n.*). Rather, NIPSCO's technical competence to resolve these significant safety issues which have arisen since the issuance of the construction permit is a necessary part of the question of whether the issues are resolvable by the new latest requested completion date. Thus, the request that we be allowed to litigate NIPSCO's ability to resolve these m *ters is a request which is narrower than, but included within, tt.sse contentions.

i NIPSCO has not submitted arguments concerning R-I 10, 11, l

12 14 and 15 Apparently, it was unaware of the Staff's repre-l sentation that it would issue its determination whether to file an Environmental Imoact Statement in "early October, 1980."

(NRC Staff Respense to Porter County Chapter Intervenors' Motion Ccncerning Environmental Impact Statement and State o f Illinois '

Motion to Compel Staff Deten ination, filed September 9, 1980.)

In the event NIPSCO seeks, at a future point in these proceedings.

to assert arguments concerning these contentions, we reserve the right to respond to them at a later date.

For the foregoing easons, Porter County Chapter Intervenors' Contentions R-I 1 through R-I 9, and R-I 13, should be admitted in this proceeding.

DATED: October 10, 1980 Respectfully submitted, Robert J. Vollen Jane M. Whicher Edward W. Osann, Jr.

Robert L. Graham Robert J. Vollen By: ~ ~i ii ;

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Jane M. Whicher -

109 5. Dearborn Chicago, IL 60602 (312) 641-5570 3

t.n issue already admitted bv the Board to the extent manifested

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in the delay in constructio'n. (See Order Following Special I> rehearing Conference at p. 60)

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+n Edward W. Osann, Jr. g One IBM Plaza - Suite 4600 Chicago, IL m

60611 $ T' i 6 IN " 7--

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Robert L. Graham T. Cin;3t@if g2-EC A5</

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'A Chicago, IL 60611 (312) 222-9350 CERTIFICATE OF SERVICE I hereby certify that I served copies of the Porter County Chapter Intervenors ' Reply to NIPSCO Respcase to Newly-Filed Contentions dated October 10, 1980, on all persons en the attached Service List, by causing them to be deposited in the U.S. mail on October 10, L930, first class postage prepaid.

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Jane :. Knicher

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SERVICE LIST

'. Herbert Grossman, Esq., Chairman George and Anna Grabowski I Accmic Safety and Licensing 7413 W. 136th Lane Board Panel Cedar Lake, Indiana 46303 U.S. Nuclear Regulatory Commission )

Washington, D.C. 20555 Dr. George Schult:

Dr. Richard F. Cole 807 E. Coolsorinn Rd. I Michigan Cit'y, Indiana 46360 Atomic Safety and Licensing Board Panel Richard L. Ydbbins , Esq .

U.S. Nuclear Regulatory Ca= mission Lake Michigan Federation Washington, D.C. 20555 53 W. Jackson Blvd. l I

Chicago, IL 60604 Mr. Glenn O. Bright Atomic Safety and Licensing Mr Mike Olszanski l Board Penel Mr. Clifford Meno U.S. Nuclecr Regulatory Commission Local 1010 Washington, D.C. 20555 United Steelworkers of America 3703 Euclid Ave.

Maurice Axelrad, Esq. East Chicago. Indiana '6312 Kath leet. H. Shea, Esq. i Lcwenstei., Newman, Reis. S :ever. C . Goldberg, Esq.

Axelrad and Toll Office of the Executive 1025 Connecticut Ave., N.W Lezal Director l Washington, D.C. 20036 U.S.~ Nuclear Regulatory Commissico '

'?as hing ton , D. C . 20555 i Will ar H. Eichhorn, Esq.

Eichhorn, Eichhorn & link Susan Sekuler, Esq.

3243 Hohmaa Avenue As sis tant Attorney General Hammond, Indiana 46320 John Van Vranken, Esq.

Diane 3. Cohn, Esc Environmental Control Division 1S5 W. Randolph S t. - Suite 231:

William P Schultz, Esq. Chicago. IL 60601 Suite 700 2000 P Street, .. W. Docketing and Service Sectier Washing:en, D.C. 20555 Office of the Secretary U. S. Nuclear Regulatory Atomic Safety and Licensing

~ Conmiission Scard Panel Washington. D.C.

U.S. :;uclear Regulator / Commission .

Washin* ton, D.C. Stepnen .Laudig, r.s q .

205'55 1010 Cumberland Rd.

Atomic Safety and Licensing N blesville, IN 46060 Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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