ML19350C782

Response in Opposition to Porter County Chapter Intervenors 810306 Motion for Admission of Contention 14.Contention Lacks Required Specificity.Issues Are Outside Scope of CP Extension Hearing.Certificate of Svc Encl

ML19350C782
Person / Time
Site:	Bailly
Issue date:	03/23/1981
From:	Axelrad M LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8104060690
Download: ML19350C782 (8)

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NUCLEAR REGULATORY COMMISSION Sj /;PR 0 3 79g BEFORE THE ATOMIC SAFETY AND LICENSING BOA 1 kyg

/ de In the Matter of ) Docket No. 50-367 /

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

(Bailly Generating Station, March 23, 1981 9 3 Nuclear-1) ) \

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(S NORTHERN INDIANA PUBLIC SERVICE N '23 12 COMPANY'S RESPONSE IN OPPOSITION H, .

--P.M f TO MOTION FOR THE ADMISSION OF \6i .'l'2 /

CONTENTION 14 ' D '* '

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On March 6, 1981, Porter County Chapter Intervenors QiG f (PCCI) moved for admission of " Contention 14." Northern Indiana Public Service Company (NIPSCO) files this Response in opposition to admission of the proposed contention.

The proposed " Contention 14" is a narrative description of a letter from one NRC employee (director of Region III of the Office of Inspection and Enforcement) to another (director of the I&E headquarters Division of Resident and Regional Reactor Inspection). The proposed Contention does not identify precisely what is sought to be litigated. However, we believe it may fairly be stated that the contention seeks to place in issue in this construction permit proceeding the following allegations:

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that the Bailly facility is "one of a type" and will require "significant mccifications" entailing increased costs, that the " Quality Assurance organization and Program" will require "significant upgrading to meet existing standards."

that NIPSCO's "overall competence" to construct and operate the Bailly facility "does not match the standards which the NRC Staff would expect if a utility were submitting a new application today."

that the Bailly site is " inappropriate" because of its " proximity to a major city."

In our view, " Contention 14" should be rejected because it lacks the specificity required by NRC regulaticns. For example, pleading requirements cannot be satisfied by the naked assertion that "significant modifications" of a totally un-identified nature will be required. As stated above, PCCI has drafted a narrative description of a letter; it has not proposed a statement of specific issues to be litigated.

Contention 14 should be rejected on that basis alone.

Furthermore, the issues sought to be raised by these al-legations'(to the extent they can be discerned) are beyond the scope of a permit extension proceeding--as previously and correctly defined by this Board and the Appeal Board.

This Board has characterized the Appeal Board holding1 /

as limiting admissible contentions to " issues (1) that arose

-from the reasons assigned to the requested extension and (2)

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l could not abide the operating license proceeding." (Memoran-1/ Northern Indiana Public' Service Co. (Bailly Generating l Station, Nuclear 1), ALAB-619, 12 NRC- (1980).

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-3 dum and Order of December 24, 1980, slip op., p. 3.) Neither requirement is satisfied by " Contention 14."

PCCI's Motion for the Admission of Contention 14 argues that both requirements are met, but the arguments are not per-suasive. In essence, it is PCCI's position that their asser-tic s must be accepted as true for the purpose of assessing admissibility (Motion, p. 2) . That is, since PCCI says that the issues must be heard now, allegedly the second test is met. Such self-serving PCCI declarations obviously do not seek to satisfy the regairement, but only to write it out of existence.

PCCI also apparently argues that " Contention 14" raises the " reasonableness of the (construction permit] extension."

It then suggests, without actually asserting,2/ that the

" reasonableness of the extension" is synonymous with "the reasons assigned for the extension." Therefore, allegedly the first test is met. There are several defects in PCCI's argu-ment. First, it is not clear that " Contention 14" raises l

l the " reasonableness of the [ construction permit] extension."

Second, the logical connection between " reasonableness of the extension" and " reasons assigned for the extension" is not explained and is, we submit, inexplicable. In any event, no satisfaction of the first test is provided by PCCI's obtuse statements. -

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~ 2_/ "To the extent, however, that the reasonableness of the

, extension is inseparable from 'the reasons assigned for

! the extension,this prong of the Board's test is satis-fled." Motion, p. 3.

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, Contention 14 is the latest of PCCI's continuing afforts to litigate or relitigate in the perrdt extension proceeding issues unrelated to that proceeding. However, as the Appeal Board has clearly ruled

. . . a permit extension proceeding is not convened for the purpose of con-ducting an open-ended inquiry into the safety and environmental aspects of reactor construction and operation.

(ALAB-619, slip op., p. 29.)

The issues apparently sought to be raised in Contention '

14 have already been proposed by the intervenors and rejected by the Board. NIPSCO's technical competence to build and operate the facility was raised in PCCI's Contention 72! and Illinois' Contention 5 [ Swhich was adopted by PCCI.b! The Board has explicitly ruled that NIPSCO need not prove its technical competence.b[ PCCI earlier challenged site suit-ability by adopting2 / Illinois' proposed contention 6.5[

-3/ Joint Intervenors' First Supplement to Petition for Leave to Intervene, pp. 14-15 (Feb. 26, 1980).

l-4/ Supplemental Petition of the State of Illinois, p. 13 (Feb. 26, 1980).

~5/ Joint Intervenors' Notice f Joinder and Adoption (Feb. 27, 1980).

-6/ Order Following Special Prehearing Conference, 12 URC 191, 221-22 (1980).

7/ Joint.Intervenors' Notice of Joinder and Adoption (Feb. 27, 1990).

8/ Supplemental Petition of the State of Illinois, pp. 13-14 (Feb. 26, 1980).

1 The contention was rejected,1[ a holding in effect confirmed by the Appeal Board.10/-

The allegations concerning need for modification of plant design and up-grading in areas such as quality assurance, allegedly at substantial increase in cost, are similar to other contentions previot >1y, and correctly, rejected by the Board.11/-

The present Motion and " Contention 14" were prompted by receipt of a memorandum expressing the view of one NRC em-ployeel2/ that the scope of the permit extension proceeding should be enlarged to include issues which PCCI has long sought to have litigated. The only thing "new" is that an NRC employee holds the stated views--and those views are ir-relevant to the question of legally permissible scope.

9,/ Order Following Special Prehearing Conference, 12 NRC 191, 224 (1980).

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Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-619, 12 NRC (1980),

11/ See, e.c., Contention 7.D. in Supplemental Petition of the State of Illinois, pp. 16-17 (Feb. 26, 1980), adopted by PCCI in Joint Intervenors' Notice of Joinder and Adoption (Feb. 27, 1980) . - The Contention was denied in Order Supplementing Order Following Special Prehearing Conference, pp. 2-3 (Aug. 25, 1980).

12/ The memorandum is dated January 8 and was received by PCCI counsel sometime before January 21. " Contention 14 " was filed March 6. We raise no objection of untimeliness despite the six-week delay but note that PCCI reacted with something less than alacrity.

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-f-We respectfully urge denial of the Motion and rejection of " Contention 14."

Respectfully submitted, LOWENSTEIN, NEWMAN, REIS

& AXELRAD 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 By: ,

e Maurice Axeirac -

EICHHORN, EICHHORN

& LINK 5243 Hohman Avenue Attorneys for Northern Indiana Hammond, Indiana 46320 Public Service Company 1

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. UNITED STATES OF AMERICA NUCLEAR REGU2.ATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING FOARD In the Matter of ) Docket No. 50-367

)

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

)

(Bailly Generating Station, ) March 23, 1981 Nuclear-1) )

)

CERTIFa ATE OF SERVICE I hereby certify that copies of Northern Indiana Public Service Company's Response in Opposition to Motion for the Admission of Contention 14 in the above-captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand delivery, this 23rd day of March, 1981:

Herbert Grossman, Esquire, Chairman l Administrative Judge U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Robert L. Holton i l Administrative Judge School of Oceanography Oregon State University Corvallis, Oregon 97331 Dr. J. Venn Leeds Administrative Judge 10807 Atwe'll Houston, Texas 77096 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 C. 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 Robert J. Vollen, Esquire e/o BPI 109 North Dearborn Street Suite 1300 Chicago, Illinois 60602 Edward W. Osann, Jr., Esquire One IBM Plaza Suite 4600 i Chicago, Illinois 60611 Robert L. Graham, Esquire One IBM Plaza 44th Floor Chicago, Illinois 60611 Mr. Mike Olszanski l Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana 46312 Mr. George Grabowski bk. Anna Grabowski 7413 W. 136th Lane Cedar Lake, Indiana 46303

(& v Maurice Axelrad LOWENSTEIN, NEWMAN, REIS

! & AXELRAD 1025 Connecticut Avenue, N.W.

l Washington, D.C. 20036 i

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