ML20003B849
| ML20003B849 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 02/20/1981 |
| From: | Grossman H Atomic Safety and Licensing Board Panel |
| To: | ILLINOIS, STATE OF, PORTER COUNTY CHAPTER INTERVENORS |
| References | |
| ISSUANCES-CPA, NUDOCS 8102250714 | |
| Download: ML20003B849 (4) | |
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UNITED STATES OF AMERICA D
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NUCLEAR REGULATORY COMMISSION O
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Before Administrative Judges:
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N In the Matter of Docket No. 50-367 CPA
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NORTHERN INDIANA PUBLIC SERVICE
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(Construction Pennit Extension)
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February 20, 1981 (Bailly Generating Station,
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Nuclear 1)
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MEMORANDUM AND ORDER (Denying Motions for Reconsideration and for Certification or Referral)
MEMORANDUM On December 24, 1980, following the issuance of ALAB-619 (Nov. 20,1980) in this proceeding, which further defined the scope of a construction permit exten-sion proceeding originally delimited in Indiana and' Michigan Electric Co.
(Donald C. Cook Nuclear Plant, Units 1 and 2), ALAB-129, 6 AEC 414 (1973), this Board denied certain " newly-filed" contentions and contentions involving the merits of'the "short pilings issue". The Board's denial of these contentions v.as based upon the two-pronged. test for admitting contentions in an extension pro-ceeding first enunciated in Cook, ALAB-129, supra, and reaffirmed in Bailly, ALAB-619, supra, that matters which do not directly cause a delay in construction will be heard if they (1) arise from the reasons assigned for
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the construction permit extension and (2) cannot appropriately abide the operating license proceeding. We denied the newly-filed contentions because they failed the first test of not arising from the reasons assigned for the construction 81922 5 0 M 93cb G
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. permit extension and denied the short pilings contentions because they failed the second test by being able to abide the event of the operating license proceeding.
The Porter County Chapter Intervenors (PCCI) and the State of Illinois intervenor object to our denial of these conte.ntions and have filed motions requesting a reconsideration and reversal of our rulings or, in the alternative, an immediate certification or referral of these rulings to the Appeal Board.
For the reasons stated below, we deny those motions.
Newly-Filed Contentions PCCI and the State of Illinois base their objection to the Board's denial of the newly-filed contentions on the ground that the Board misinterpreted Bailly, ALAB-619, as requiring the two-pronged test in all construction permit extension proceedings. They construe ALAB-619 and Cook, ALAB-129, supra, as merely tailoring the two-pronged test to the particular facts of those respective cases.
While ALAB-619 may have disclaimed the two-pronged test as "an inflexible mold" (p.' 22) for judging every contention in all permit extension proceedings, it clearly mandated the dismissal of any contention that has "no discernable relationship" to the permit extension (p. 23), as is the case with the newly-filed contentions.
For those contentions,10 C.F.R. 9 2.206 is the exclusive remedy.
Ibid..
Whether or not that formulation in ALAB-619 is merely a rephrasing of the first prong of the Cook test as we see it, intervenors have offered no substantial reason fur reversing our ruling.
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. The State of Illinois' further observation (Motion, Fn., p. 3), that Cook, ALAB-129, supra, did not confront the question of whether matters unrelated to the extension requests are within the scope of a good cause proceeding, is inapposite.
As we made clear in our December 24, 1980 Memorandum and Order (pp. 3-4), we did not deny the newly-filed contentions on the basis of the Cook decision but, rather, on ALAB-619's "further guidance" with regard to the Cook determination.
Short Pilings-Issue In objecting to the Board's denial of the short pilings issue, PCCI and the State of Illinois rely upon Bailly, ALAB-619, supra;' Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Units 1), ALAB-590,11 N.R.C. 542 (1980); and Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973); to assert that the Board improperly prejudged the " merits" of the issue to determine that it coald abide the operating license stage.
Intervenors' assertion is without foundation. They confuse their position on the merits of the issue, which the Board accepted for the purpose of deter-mining admissibility, with their value judgment on whether the issue could abide the operating license stage, which the Board rejected. The latter deter-mination is one that only the Board can make under Cook, ALAB-129, suora, and Bailly, ALAB-619, supra, subject to reversal if it is erroneous. For the purpose of determining admissibility, the Board assumed that NIPSOC's short pilings proposal might not meet applicable health and safety or environmental standards.
However, taking into account the present posture of that design
- proposal, the uncertainties surrounding the unknown quantity of the sub-soil composition, the testing program already instituted, the close scrutiny given to the proposal by the Staff and Comission, and the Commission's determination in CLI-79-ll, 10 N.R.C. 733 (1979) that the short-pilings proposal could have abided the operating license stage in its posture at the construction pennit proceeding, we determined that the issue could abide the operating license stage.
Nothing submitted by intervenors has persuaded us that we erred in exercising our judgment to deny that issue.
ORDER For all of the foregoing reasons and based upon a consideration of the enti,re record in this matter, it is, this 20th day of February,1981 ORDERED That PCCI' and State of Illinois' objections to, and motions for recon-sideration of, the Board's Order of December 24, 1980 denying the newly-filed contentions and short-pilings issue are denied.
In view of the failure of intervenors' motions to demonstrate that a certification or referral to the Appeal Board or Comission is necessary to prevent detriment to the p,ublic interest or unusual delay or expense, intervenors' alternative motions for certification or referral are also denied.
FOR THE ATOMIC SAFETY AND LICENSING BOARD 1%
Herbert Grossman, Chairman ADMINISTRATIVE JUDGE