ML20002D215
| ML20002D215 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 01/14/1981 |
| From: | Fahner T, Marc-Anthony Murray, Rapkin A ILLINOIS, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8101200046 | |
| Download: ML20002D215 (8) | |
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BER RE THE ATOMIC SAFET'l R D LICD; SING BOARD 4,
to IN THE MAT'IER OF:
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Docket No. 50-367 f
NORDE3N INDIR;A PUBLIC
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(Construction Permit
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Extension) b} g (Bailly Generating Station,
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4 OBJECTIONS TO MDDRANDD1 AND ORDER OF DECDIBER 24,19
,,4'/,f, g \\\\~ j AND FDTION mR Ct.KnFICATION PEOPLE OF THE STATE CF IILINOIS, by its attorney TYPm E C. FAHNER, Attorney General of the State of Illinois, pursuant to 10 C.F.R. 52.751(a) (d) objects to the Board's Memorandum and Order of December 24, 1980 and requests that the Board revise that Order in light of these objections or certify for determination to the Atmic Safety and Licensing Appeal Board the matters raised by these objections.
In support hereof, Illinois adopts and incorporates herein by reference
" Porter County Chapter Intervenors' (1) Objections to Mmorandum and Order of Decarber 24, 1980, and hbtion for Peconsidation, and (2) Motion for Certification or Referral" filed January 9, 1981.
In addition, Illinois states the following:
1.
Environmntal Contentions. On page 5 of its Order the Board states that it is withholding ruling on the envirormental contentions pending the Staff's determination of the type of environnental analyds to be made. Although the
- In that the Memorandum and Order of Decerrber 24, 1980 supplements the Board's Order Following Special Prehearing Conference issued August 8,1980, the provisions of 10 C.F.R. S2.751a are applicable.
F]O2 9 O C OYbl7 (5-
. Board then offers its views on the question, those vieas are apparently not at this point nuant to be a ruling.
Taerefore Illinois withholds coment until a final ruling is nude.
2.
Nealy-Filed Contentions.
The Board has denied all of the newly-filed contentions except Contentions R-I 10-12, 14, and 15, wttich relate to the need for a new or supplemented environmental inpact statement. The Board's denial of the other new contentions should be reconsidered for the following reasons:
The Board has misinterpreted the recent opinion of the Atmaic Safety gnd Licensing Appeal Board in Northern Indiana Public Service Cavany (Bailly Generating Station, Nuclear-1), ALAB-619,12 NBC (tbverter 29, 1980)
("AIAB-619"), and on the basis of that misinterpretation holds that the newly-filed contentions dealing with unresolved generic safety issues are outside the scope of the permit extension hearing in this case.
In the Board's view, AIAB-619 limited the scope of permit extension hearings solely to issues admissible under Indiana and Michigan Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2)
AIAB-129, 6 AEC 414 (1973)
(" Cook")- that is, to health and safety or environmental issues which (1) arise frcan reasons associated with the requested extension and (2) cannot appropriately abide the operating license proceeding.
Because the intervenors' generic safety contentions do not satisfy the first prerequisite, the Board believes that it "has no choice" but to reject them. (Order, pp. 3-4)
The Appeal Board, however, did not in AIAB-619 limit the scope of permit extension hearings to issues admissible under Cook. 'Ihe Appeal Board expressly adknowledged that the two-pronged Cook test "was tailored to the particular facts of that case" and was "[n]either in terms nor by neessary inplication... offered as an inflexible nold for passing judgment on the litigability in a permit extension proceeding of every variety of contention..." (AIAB-619, p.22)
The Appeal Board enphasized the inportance attached in Cook to "the totality of the circumstances" l
. and the need for a "connon sense" approach to determining the secpe of gocd cause proceedings.
(AUG-619, pp. 22-23)
Furt ernere, the Appeal Board cbserved that where a capelling natter of safety was involved the tw-step licensing process did not preclude consideration of such matter prior to the cperating license stace.
" 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 nonetary investrent, the facility is nearing capletion at that site." (ALAB-619, p.22)
Thus, tie Appeal Board made clear that licensing boards are not restricted in good cause hearings to consideraticn of only those capelling safety issues which arise frcm the reasons assigned for the extension request.
3.
Short-Pilings. The contentions concerning short pilings must be admitted in this proceeding because they satisfy the t'e-pronged test of Cook.
In its August 8,1980 Order Following Special PrePearing Conference, this Board decided that the first prong is satisfied: " Unquestionably, the change to short pilings is a safety issue that arises frcm a reason for the delay in the cmpletion of the facility." (p.15) As to the second prong, the Board need not find that the short pilings safety issue is in fact empellina and cannot abide the operating license stage, since, as the Appeal Board stated in AIAB-619, the intervenors' assertions to the effect nust be taken as true for the purposes of ruling on admissibility, citing Mississipoi Power & Light Capany (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 ABC 423 (1973). (ALAB-619, p.21)
- A careful reading of Cock indicates that there the petitioners concerned themselves only with issues ad. sing fram reasons associated with the requested permit extension and did not assert that other issues should be admitted as well. Thus the Appeal Board in Cook was not confrented with the question whether natters unrelated to the extension request are within the scope of a good cause pr
- ing, t
. Beyond that, rhis Board has fot=d that the short pilings question is in fact tco major ard sig. ficant a design feature to defer for later consideration:
Ib begin with, it is clear that, had ite short pilings design proposal been in the present posture at the time of the construction pemit hearings, the matter would have been considered by the Licensig Board. Despite Permittee's insistence that it is the cotion of an applicant to defer [untill the operatin' license pro-g ceeding the consideration of design features such as the short pilings proposal..., it is inconceivable that a known design feature of this sianificance would not have been brought up by the staff and neard by the Board, even if the applicant had sought to defer it.
(Order, pp. 5-6 ; emphasis added)
It is hard to imagine a board stating in strorger terms that an issue is one which may not appropriately abide operating license pro-ceedings.
It should also be noted that the Staff by its actions has denenstrated that the short pilings proposal cannot be deferred: if that proposal were one which could abide the operating license stage, the Staff would not have stayed further coratruction pending evaluation but would have allowed construction to con-tinue while an evaluation was made.
LW Cook the proponent of a contention must show nothing nore than that the contention meets the twt >-pronged test in order to trigger the right to a public hearing. Then, on the basis of evidence adduced at the hearing, the Board approves or denies the particular design or other safety issue in question or determines that there is reasonable assurance that it will be satisfactorily re-solved by the tine the extended construction permit expires.
In requiriag that the intervenors give " substantial re, son for a board to deny the" pilings design change (Order, p.6), the Board adds a third prong to the Cook admissibility test. The Board thus also indicates a miscenception of the burden of proof in a good cause pro d ing.
It is not necessary that tM intervenors prove that the short pilings plan is unsafe. All they need show is that the pilings plan is too inportant a safety question to defer, and then NIPSCO
. carries the burden of proving that the plan is safe (or of providing information sufficient to support a 10 C.F.R. S50.35 firding of reasonable assurance-i.e.,
of proving that there is gcod cause for the Bcard to grant the permit extension request.
Furthernere, the statement that the intervenors have not giwn reasons cccpelling denial of the short pilings proposal indicates that the Board has already adjudged the nerits of the short pilings contentions. The Board has also apparently found, without input fran the intervenors concerning the Staff and NIPSCO's R & D prtxJra,a, that that program is adequate ard reasonable assurance exists that the pilings question will be resolved in the future. Be m m Illinois is entitled to an adjudicatory hearing on the short pilings design proposal, Illinois is en-titled to offer evidence disputing whether a 550.35 reasonable assurance finding can be made and whether any particular R & D program advanced by the applicant and Staff is MMJate. The content of any R & D program necessitated bf' S50.35 is to be deterntined not on an ex parte basis but in the adjudicatory setting. The Board states at pages 6-7 of the Order:
Whether any such [R & D] program sanctioned by the Board would agree in every particular with tra extensive pro-gram already adopted by the Permittee and Staff, as sunmarized in the Staff's Response to the Board Questions (Lynch Affidavit, pp. 2-8) is not critical in deciding whcther a hearing on that issue should be held at this juncture. Nothing subnitted to the Board suggests that there exists any material insufficiency in the program already adopted to test the short pilings design....
The possible similarity of a Board-sanctioned R & D program to the current Staff and Permittee R & D program is not only "not critical"; it is ccmpletely irrelevant.
The only question before the Board at this point is whether under the Atanic Energy Act and the Nuclear Regulatory Cc*tmission's own rulings in Cook and AIAB-619 the intervenors' short pilings contentions are admissible in these construction permit extension proceedings.
In light of the foregoing, PEOPLE OF THE STATE OF IILDDIS requests t
that the Board reconsider its Order of Deceber 24, 1980 or certify to the Appeal Board the questien of the ad:nissibility of the intervenors' newly-filed and short pilings contentions.
Paspectfully subnitted, TYPONE C. FAICER Attorney General State of Illinois
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,s BY:'
' N EE PAPKIN j
Assistant Attorney General i
OF CX.NSEL:
NEE PAPIGN Assistant Attorney General Environmental Control Division MARY JO MURFAY Assistant Attorney General Environmental Control Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60601
[312] 793-2491 DATED: January 14, 1981 1
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u xan.CATE OF SERVICE 9
I, A\\NE RAPKIN, hereby certify that copies of Objections to Fanorandun 4
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and Order of DacerMr 24, 1980 and bbtion for Cartificaticn were served on each of the persons cn the attached Service List by depositirg in the United States Mail, postage prepaid, on this 14th day of January, 1981, i
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SERVICS LIST Herbert Grossman, Esq.
George and Anna Grabowdci Administrative Judge 7413 W. 136th Lane Atcznic Safety and Licensing Cedar Iake, Irdiana 46303 Board Panel U.S. Nuclear Regulatory Ccmnission Dr. George Schultz Washington, D.C. 20555 807 E. Coolspring Poad Michigan City, Irdiana 46360 Dr. Richard F. Cole Idministrative Judge Richard L. Pobbins, Esq.
Atcmic Safety and Licensing Iake Michigan Federation Boarti Panel 53 W. Jackson Boulevard U.S. Nuclear Pegulatory Comission Chicago, Illinois 60604 Washington, D.C. 20555 Mr. Mike Olszanski Mr. Glenn O. Bright Mr. Clifford Mezo Idministrative Judge Iccal 1010 Atomic Safety and Licensing United Steelwrkers of America Board Panel 3703 Euclid Avenue U.S. Nuclear Regulatory Ccmnission East Chicago, Irdiana 46312 Washington, D.C. 20555 Steven C. Goldberg, Esq.
Maurice Axelrad, Esq.
Office of the Executive Kathleen H. Shea, Esq.
Iagal Director Io wnstein, Newman, Peis, U.S. Nuclear Regulatory Cctmission Axelrad & Toll Washington, D.C. 20555 1025 Connecticut Ave., N.W.
Washington, D.C. 20036 Pobert J. Vollen Jane M. Whicher William H. Eichhorn, Esq.
BPI Eichhorn, Eicnhorn & Link 109 North Dearborn Street 5243 Hohman Avenue Chicago, Illinois 60602 Hamnond, Indiana 46320 Docketing and Service Section Diane B. Cohn, Esq.
Office of the Sec. M William P. Schultz, Esq.
U.S. Nuclear Regulatory Ccanission Suite 700 Washington, D.C. 20555 l
2000 P Street, N.W.
Washingtm, D.C. 20555 Stephen Iaudig, Esq.
r 21010 Onharland Road Atcmic Safety and Licensing Noblesville, Indiana 46060 Board Panel U.S. Nuclear Regulatory Comnission Washingtm, D.C. 20555 Atcmic Safety and Liceraing Appeal Board Panel U.S. Nuclear Regulatory Camission Washington, D.C. 20555 i
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