ML19351F124

Suppl to 800605 Requests to Suspend or Revoke Cp. Evacuation Issues Are Especially Suited to Site Feasibility Determination for Case by Case Consideration.Certificate of Svc Encl

ML19351F124
Person / Time
Site:	Bailly
Issue date:	12/04/1980
From:	Cohn D, Schultz W GARY, IN, PUBLIC CITIZEN LITIGATION GROUP
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19351F121	List: ML19351F120 ML19351F124
References
NUDOCS 8012290538
Download: ML19351F124 (12)

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t BEFORE THE U.S. NUCLEAR REGULATORY COMMISSION O

IN THE MATTER OF )

)

NORTHERN INDIANA PUBLIC ) Docket No. 50-367 SERVICE COMPANY ) (Request for Action)

(Bailly Generating Station, ) 10 C.F.R. S*2.206 Nuclear - 1) )

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SUPPLEMENT TO REQUEST FOR ACTION TO SUSPEND OR REVOKE CONSTRUCTION PERMIT On November 20, 1980, the ppeal Board upheld the denial of intervention by the City of Gary, et al. in pending construction permit extension proceedings for the Bailly nuclear plant. If the Board is correct, a show cause proceeding under section 2.206 of the Commission's rules is the only available forum for examining the question which the Gary petitioners have raised -- namely, the suitability of the Bailly site from the standpoint of whether it is feasible to evacuate surrounding populations in the event of a nuclear accident. We are not asking the Conmission at this point to provide the answer to the question of' whether Bailly is being built at an evacuable site; we are only asking for a forum in which this crucial issue can be addressed.

l l The requests for action filed by the Gary petitioners and the State of Illinois demonstrate why a reevaluation of the Bailly site is required now. This is because of the inherent population density factors which have identified B7.111y as a site posing unique barriers to evacuation planning. These factors have ac-quired new significance since the accident at Three Mile Island, which dispelled the Commission's prior position that the chance

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i of an accident requiring evacuation was so small that the possibility of such an accident did not need to be considered in a construction permit or operating license proceeding. In addition to the combination of these factors, the very nature i

of the issue raised -- the fundamental question of where a plant .

should or should not be built -- cannot, under any reasonable approach, be deferred until a$ter the plant is constructed.

The standard adopted by the commission for determining whether to initiate proceedings under S 2.206 is whether

" substantial health or safety iqsues" have been raised.

Consolidated Edison Co., 2 NRC 173, 176 (1975); Porter Country Chapter of the Izaak Walton League v. NRC, 606 F.2d 1363, 1368 (D.C. Cir. 1979). We demonstrat'e below that the City of Gary, i

et al., have raised a substantial health or safety issue, which must be addressed and resolved at this time.

1. The Question,0f Whether The Bailly Site Is Evacuable Is A Significant Health And Safety Issue.

The City of Gary, et al. submit that they hav'_ demonstrated why a show cause proceeding is required to examine the unique circumstances presented by Bailly. This is due to the combination of the Commission's recent recognition that evacuation capability mus't be taken into account in order to protect the public health and safety and the inherent population factors which, while always present at Bailly, have now assumed a new importance which requires a reconsideration of the Bailly site. At the very least, the unique circumstances of the Bailly site require the Commission to thoroughly examine whether the site is evacuable, and accordingly the show cause order should be issued.

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f The factors which, in our view, make Bailly a uniquely poor site.from an evacuation perspective are by now well known.

They include the fact that the plant is 800 feet from a recrea- '

tional park which is attended by at least 25,000 to 40,000 people per day during the spring and summer, and 700 feet from a steel plant which employs a total of approximately 8,500 workers.

In fact, the steel plant cannpt be totally evacuated since it requires a residual work force of 170 for 6 days in the event that operations are interrupted. Finally, the site is located approximately 6 miles from the gity of Gary, Indiana; a total of 12 cities and towns lie within a 10 mile radius of the plant.

Because of these factors, Bailly was the only nuclear power plant operating or under construction that failed to meet all six

' siting criteria recommended in the Report of the Siting Policy Task Force (NUREG 0625) .1/

While these factors did exist when the construction permit for Bailly was granted, they have acquired new significance in light of intervening events. .The most important of those events is, of course, the accident at Three Mile Island, where the NRC recommended at one point that the State of Pennsylvania consider l

(1/The fact that the Task Force's criteria are at present only recommendations (see NIPSCO's comments at 8-10) is irrelevant to the question of whether they nevertheless reveal that there l

are special population density concerns about the Bailly site.

We also do not believe it is at all helpful to engage in a debate about whether Bailly ranks first, fifth or sixth on a i

scale of worst sites in the country. See Letter from Harold R. Denton to Jane Seed (October 14, 1980).

The fact is that the results of the Task Force Report clearly target Bailly as a case requiring special consideration, and, since Bailly is -

not yet built,-that evaluation should be made now.

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i evacuation within 20 miles of the reactor. That accident has led the Commission to recognize the need for more effective emergency response capability. In proposing new rules, the Commission stated that it now regards " emergency planning as equivalent to., rather than secondary to, siting and design in public protection," a position which it acknowledged is a

" depart [urel from its prior regulatory approach to emergency planning." 44 F.R. 75169 (Dec. 19, 1979). On August 19, 1980, the Commission published final rules which require workable evacuation plans within an Emeriency Planning Zone ("EPZ") of 10 miles as a condition for operation of a plant. 45 F.R. 55402 et geg. Moreover, the new regulations require consideration at the construction permit stage of evacuation capability within a 10 mile EPZ. See 45 F.R. at 55411.

In contrast to this approach, the construction permit for Bailly was granted on the basis of consideration only of a 188 meter exclusion area (the smallest of any site in the country) and a 2,400 meter low population zone. The siting and emergency planning standards applicable at the time Bailly was approved l

have now been rejected by the Commission and every other body i which has studied the implications of Three Mile Island.2/

5/SeeComptrollerGeneraloftheUnitedStates, " Areas Around Nuclear Facilities Should Be Better Prepared for Radiological Emergencies," EMD-78-11 (Mar. 30, 1979); " Planning Basis for the Development of State and Local Government Radiological Emer-gency Response Plans In Support of Light Water Nuclear Power Plants," NRC/ EPA Task Force on Emergency Planning (Dec. 1978);

(" Emergency H.R. Rep. No.96-413, 96th Cong., 1st Sess. 1979 Planning Around U.S. Nuclear Power Plants: Nuclear Regulatory i

j Commission Oversight"); A Report to the Commissioners and to the Public, "Three Mile Island" '(4/5/79) .

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The significance of TMI also lies in the fact that the accident has made it apparent that a Class 9 accident could occur. Recognizing this fact, the Commission has also issued an interim statement of policy requiring that consideration be given to the environmental effects of Class 9 accidents in weighing alternative sites under the National Environmental Policy Act. See 45 F.R. 40101 (June 13, 1980). In contrast, r

population density at the Bailly site relative to population density at alternative sites was never considered in the initial construction permit proceeding specifically because of the perceived improbability that a Class 9 accident could occur. Moreover, we fail to see how it can be argued that the consideration given emergency planning at the construction permit stage should preclude an adjudication of this issue now, when the Licensing Board specifically excluded consideration of the possibility of a Class 9' accident in granting a construction permit for Bailly.

We are not arguing that the change in criteria for construction permits would alone be a sufficient basis for., granting a show cause order. However, NIPSCO's argument -- that the fact that site suitability was considered during the original cone.truction permit proceeding is a sufficient basis for denying the request for a 1

show cause proceeding -- should also be rejected. Instead, we submit, the Commission should adopt an approach which falls in between-these two extremes, namely that reexanination of an issue decided at the construction permit stage is appropriate when an event which has intervened since the construction permit was granted makes such an examination necessary to protect the public health and safety. We can hardly think of a health and safety issue more

t important than site evacuation, nor can we imagine a set of factors (the combination of TMI and the high population density of the Bailly site) which'are more compelling in terms of the public's health and safety.

The fact that the Commission is currently considering re-ports addressing this question highlights the importance of the issues which the Bailly petitioners have raised. For example, Y -

the Commission is reviewing a draft report by a consultant to the Federal Emergency Management Agency (" FEMA") which was designed to provide estimates ofI evacuation times for best and worst case circumstances at Bailly. Regardless of whether the conclusions contained in the report are correct,l/ a section 2.206 proceeding is necessary to. decide, in an adjudicatory pro-ceeding where all interested parties will have an opportunity to present evidence, whether Bailly is still a suitable site for a nuclear reactor.

1/Although we have not yet had an opportunity to fully eva-luate the draft report, certain inadequacies are clear, demon-strating the need for an adjudicatory proceeding in which the issue of whether Bailly is evacuable can be fairly decided.

For example, the evacuation time estimates projected for Bailly are significantly lower than those for other plants with much smaller surrounding populations: e.g., Quad Cities (1/4 the population); Salem (1/4 the population); Point Beach (1/4 the The FEMA time population) ; North. Anna (1/10 the population).

asgessments are also significantly lower than the times esti-mat'ed by NIPSCO's own consultants, whose estimates did not even While take into account the nearby recreational population.

the draft FEMA report does provide a separate estimate for the time needed.to evacuate the thousands of visitors to the nearby park, this time is not factored into that needed for However, evacuating the remaining population within a 10 mile' radius.

even the FEMA report recognizes that the dense populations around Bailly cannot be evacuated under extreme adverse weather conditions, stating at the same time thatThus Bailly is located in the path of even the draft FEMA report major winter storm centers.

demonstrates that we have raised a significant issue affecting health and safety.

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2. Because The Issue Of Siting And Emergency Planning Cannot Bo Deferred To The Operating License Stage, A Show Cause Proceeding Is Required.

If, as we contend, the question of whether Bailly remains a feasible site _ raises significant health and safety concerns, ,

then this issue must be examined now. Unlike other safety matters which can be rectified after construction of the plant r

has been completed, it makes absolutely no sense to defer to tne operating license stage the issue of whether a plant has been built in a safe place. As,the Appeals Board said in i

rejecting the argument for delay: .

. . . we are unimpressed with the argument of the applicant and the staff that peti-tioners can appropriately be told to with-hold their site suitab'ility contentions until the operating license stage has arrived. It does no disservice to the concept of a two-step licensing process to conclude that, in circumstances such as those at bar, that suggestion offends reason. Manifestly, if there currently exists substantial cause to believe that the Bailly site is unacceptable, now is the time to explore the matter further --

rather than years hence when, following a substantial additional monetary invest-ment, the facility is nearing completion at that site. .

Decision at 21-22.

The siting and emergency evacuation issue we have raised is thus one of a narrow category of safety issues which are uniquely appropriate for proceedings initiated under section 2.206, and we have demonstrated why the inherent population factors at Bailly make this one case appropriate for such proceedings.

NIPSCO argues, however, that the Commission has already determined the method by which questions of siting and emergency

i planning are to be treated, "at least initially," with respect to existing sites. Comments at 10. NIPSCO points to an advanced notice of proposed rulemaking which directs the NRC staff to review and submit a report on existing sites for " consideration in making case-by-case decisions." 45 Fed. Reg. 50351 (July 21, 1980). However, there is nothing in this notice which 1.ndicates that a section 2.206 proceeding is not available to determine the issue we have raised.

With respect to Bailly and other plants either in construction or operation, and which are loc 4ted in highly populated areas, the Commission has merely determined that, until it decides whether and how to proceed on a generic basis, decisions on continued operation nr construct' ion will be made on a case-by-case basis. See 45 Fed. Reg. 50351-52. The fact that the Commission has directed the staff to prepare a report to assist in these case-by-case determin'ations does not constitute a directive from the NRC that section 2.206 proceedings are not available where substantial issues have been raised with respect to a specific site. Moreover, the absence of'any time schedule for the staff's review indicates that no immediate action by the Commission will be taken if the pending request for action is deqied, while the construction of Bailly could be renewed in the very near future. Indeed, the show cause proceeding is a forum for precisely the type of case-by-case determination envisioned by the Commission.

As further support for its argument that a consideration of ,

the feasibility of evacuating Bailly should be deferred to the operating license stage, NIPSCO also points to the fact that the Commission's new rules on emergency planning were made specifically

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applicable only to applicants for and holders of operating licenses and to applicants for construction permits. However, it is difficult to understand how this fact supports NIPSCO's contention that the Commission has decreed that this issue should be decided only after the plant is built. A determination as to whether a certain site is no longer feasible from an evacuation r

perspective, where the site is one for which a construction per-mit was granted prior to issuance of the new emergency planning rules, has again been left for case-by-case consideration.

I For the reasons discussed above, we submit that the issues which petitioners have raised are especially suited for con-sideration under section 2.206. ,

Respectfully submitted,

& f.n Diane B. Cohn William B. Schultz Suite 700 2000 P Street, N.W.

l Washington, Q.C. 20036 (202) 785-3704 Attorneys for the City of Gary, et al.

Decbmber 4, 1980 l

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i UNITED STATES OF AMERICA NUCLEAR REGULATORY. COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of ) Docket No. 50-367

- )

NORTHERN INDIANA PUBLIC SERVICp ) (Construction Permit i

COMPANY ) Extension)

)

(Bailly Generating Station, )

Nuclear 1) )

i CERTIFICATE OF SERVICE I hereby certify, this 4th day of December, 1980, that copies of the City of Gary, et al.'s Supplement to Request for Action to Suspend or Revoke Construction Permit were served by mail, first class and postage prepaid, upon the following:

i Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 1 \

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' Thomas S. Moore Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555-Herbert Grossman, Esquire U.S. Nuclear Regulatory Commission Washington, D.C. 20555 2 _

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Glenn O. Bright U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard F. Cole 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 ,

r Steven Goldberg, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. George Schulth 807 East Coolspring Michigan City, Indiana 46360 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, Illinios 60611 William J. Eichorn, Esquire 5243 Hohman Avenue Hammond, Indiana 46320 HMr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana 46312 Tyrone C. Fahner Attorney General, State of Illinois Environmental Control Division 188 West Randolph Street Suite 1215 Chicago, Illinois -60601 y- -- , gr - e y <-

9 -- ,*-),

i Richard J. Robbins, Esquire 53 West Jackson Boulevard Chicago, Illinois 60604 Mr. George Grabowski Ms. Anna Grabowski 7413 W. 136th Lane Cedar Lake, Indiana 46303 ,

Stephen Laudig, Esquire 21010 Cumberland Road Noblesville, ,.

Indiana 46060 Kathleen Shea, Esquire Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.

Washington, D.C. 70035

' Robert W. Hammesfahr, Esquire 200 East Randolph Street Suite 7300 Chicago, Illinios 60601 Director of Nuclear Reactor Regulation 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

'iane B. Cohn Suite 700 2000 P Street, N.W.

Washington, D.C. 20036 (202) 785-3704 Attorney for the City of Gary, et al'.

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