ML20003D547
| ML20003D547 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 03/26/1981 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8103270648 | |
| Download: ML20003D547 (7) | |
Text
03/26/81 o\\8g C
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UNITED STATES OF AfiERICA 3
fiUCLEAR REGULATORY C0!!!!ISSION g
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BEFORE THE ATOMIC SAFETY A!:D LICENSING S0ARD
[%{.ci/
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In the 11atter of
)
fiORTHERN INDIANA PUBLIC SERVICE Docket No. 50-367 COMPANY
)
(Construction Pennit Extension)
(Bailly Generating Station, Nuclear-1)
)
NRC STAFF RESPONSE TO PORTER COUNTY CHAPTER INTERVEN0RS' MOTION FOR THE ADMISSION OF CONTENTION On Itarch 6,1981, the Porter County Chapter Intervenors (PCCI) noved for the admission of a new contention, denominated contention 14, 1
effectively adopting the recommendations of two members of the NRC Office of Inspection and Enforcenent (IAE) contained in internal nenoranda to the Director of the Division of Licensing (DOL), Office of Nuclear ReactorRegulation(NRR).O These individuals recommended that three particular matters receive consideration in connection with the Bailly perait extension proceeding.
l These are: (1) the cost of anticipated nodification in the !! ark II containnent design; (2) the Applicant's Quality Assurance Organi:ation and Program and (3) the Applicant's linited nuclear power plant 1/-
See !!emorardu:1 frm J.H. Sziezek, IAE, to D.G. Eisenhut, D0L, dated January 10,-1981, and acco.npanying memorandua fron J.G. Keppler,
~ ~ '
ISE, dated January 8, 1081.
Copies of these memoranda were served on the Board and parties, in the fonn of a written " Board Notificatic7", from the Director of DOL, dated January 16, 1981,
-containing his position on the natters raised therein.
8108270648
. experieqce.
The gravamen of the present motion is that the Board admit these three natters as issues in the proceeding on the strength of the subject memoranda.
The Staff opposes this motion consistent with its uniform position throughout this proceeding that disparate safety concerns unrelated to the grounds for the penait extension request, such as these, are inadmissible as a natter of law and sound regulatory administration.2)
As evident from the Director of D0L January 26, 1981 letter,E the two memoranda in question do not alter the Staff's litigative position in this regard and the pertinent recommendations contained therein have not been accepted.
Discussion The reconaendations in the I&E Staff memoranda in question are solely those of the authors.
These individuals are not responsible for the formulation of the Staff position on any aspect of this proceeding.
They do not represent the views of the Director of the Office of I&E or, more importantly, these of the Director of DOL, the principal official in the Office (NRR) primarily responsible for fomulating Staff technical
~~2/
See most recently NRC Staff response to notions for reconsideration
. and certification or referral, dated January 29, 1981.
This position is in accord with the Appeal Board decisions in Cook and in this proceeding on the _ scope of a construction permit extension proceeding. See Indiana and Michigan Electric Co. (Donald C. Cook Nuclear plant, Units 1 and 2), ALAB-129, 8 AEC 414, 420 (1973) and Bailly, ALAB-519, slip op, at 23, 28-29 (November 20,1980)
(Connission declined review).
3]
See Director of D0L letter, dated January 16, 1981.
. positions in f(RC adjudications. M The Director of D0L fe'lt it appropriate to bring the memoranda to the attention of the Board and parties in keeping with its liberal Board notification policies.
They dn not reflect the official staff position herein and should be accorded no weight at all in the designation of matters in controversy in this proceeding.
The three matters which the author of the memoranda, and now PCCI, recocnend be admitted as issues herein (namely, !! ark II containment design, quality control and technical qualifications) are analogous to aspects of PCCI Contention 7 (technical qualifications)E rejected by Board and twice-rejected newly-filed Contention 3 (1tark II containment design).6f These Board rulir.gs on the contentions were proper and the 4j See 10 CFR 9 1.61(a); NRC Panual, Chapter 0123, Part II, Section F.
Tiii Division of Project !!anagement became the Division of Licensing following the last reorganization of the Office of fluclear Reactor Regulation.
The Office of I&E performs an entirely separate role in the affairs of the agency.
See 10 CFR H 1.64.
5]
See 1.icensing Board Order Following Special Prehearing Conference, dated August 7,1980, at 60 wherein the Board stated: "[t]o the extent [PCCI] seek to litigate any alleged lack of technical ability not actually manifested in the delay in construction, this matter has already been determined in the construction permit proceeding and is not admissible here." The Board further stated that it did not admit that portion of another intervenor's contention "which requires that NIPSCO and its contractor prove in this proceeding that they are technically competent in order to receive this extension." The extent to which the delay in construction was attributable to technical incompetence was admitted. An additional contention thereon would be unnecessarily duplicative.
6f See Licensing Board !!caorandum and Order, dated December 24, 1980 and February 20, 1981.
J 4-present motion preyides no basis to warrant reconsideration at this stage of the process.
Finally, the present motion fails to address the factors contained in 10 CFR Q 2.714(a) relative to late-filed contentions.72 Consideration of these factors also militates against the adaission of proposed contention 14.
With regard to the first factor, the nemoranda upon which the present motion is groundcd were written in January,1981.E The present motion was filed in March,1981. Although there is no explanation why the present motion was not filed earlier, the existence of the subject nenoranda provided the fIrst occasion for th? submission of newly proposed contention 14.
With regard to the second relevant factor, the three-substantive matters raised in proposed Contention 14 are probably litigable in the eventual operating license proceeding.
If PCCI believes that the situation warrants, it may seek the initiation of an earlier proceeding thereon in the form of an appropriate request pursuant to 10 CFR 52.206.E 7]
10 C.F.R. Q 2.714(c)(3); Louisiana Power and Light Co. (Waterford l
Steam Electric Station, Unit 3), LBP-73-31, 6 AEC 717, l
a ) peal dismissed as interlocutory, ALAB-186, 6 AEC 1155 (1973).
T1cse factors are: (i) good cause, if any, for failure to file on time; (ii) the availability of other means whereby the petitioner's interest will be protected; (iii) the extent to which the petitioner's participation may rease ably be expected to assist in developing a sound record; (iv) the.xtent to which the p(v)titioner's interest will be represented by existing parties; andthe extent to w e
the issues or delay the proceeding.
8]
See n. I supra.
L 9]
See ALAB-619, slip. op at 23.
r-
- p...
. With regard to the third factor, adjudication of the three substantive natters in question is neither relevant nor essential to the development of a sound record in this construction permit proceeding.
The present record does not provide a basis upon which to ascertain whether or not PCCI could make a valuable contribution to adjudication of such issues even if they were admitted, c
With regard to the fourth factor, the Staff hasE and will continue to discharge its statutory responsibility to assure that Bailly can be safely built and operated.
Formal adjudication of the issues raised in proposed Contention 14 is unlikely to further this end.
With regard to the final factor, the admission of three new technical issues of a broad niture, with the concomitant time and effort entailed in additional discovery, additional prehearing and hearing preparation and expanded post-hearing filings, will inevitably broaden the issues and unnecessarily delay the proceeding.
Conclusion l
In light of _ the above, the Staff opposes the present motion and objects to the adaission of proposed Contention 14.
Respectfully submitted,
/
_ ( $.- k:'-
Steven C. Goldberg Counsel for NRC Staff 0ated at Bet'nesda, !!aryland this 26th day of March, 1981.
10f See, Je.., Staff Safety Evaluation Report related to the Bailly liiTe foundation' dated I'. arch,1981.
a UNITED STATES OF AMERICA NULLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING'B0ARD In the Matter of
)
)
NORTHERN INDIANA PUBLIC SERVICE
)
Docket No. 50-367 COMPANY (Construction Permit Extension)
(BaillyGeneratingStation,
)
Nuclear-1
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO PORTER COUNTY CHAPTER INTERVENORS' MOTION FOR THE ADMISSION OF CONTENTION in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 26th day of March, 1981.
Herbert Grossman, Esq., Chairman Robert L. Graham, Esq.
Atomic Safety and Licensing Board One IBM Plaza Panel 44th Floor U.S. Nuclear Regulatory Commission Chicago, Illinois 60611 Washington, D.C.
20555
- George and Anna Grabowski Robert L. Holton 7413 W. 136th Lane School of Oceanography Cedar Lake, Indiana 46303 Oregon State University Corvallis, Oregon 97331 John Van Vranken, Esq., Chief Northern Region J. Venn Leeds Environmental Control Division
- 10807 Atwell 188 West Randolph Street Houston, Texas 77096 Chicago, Illinois 60601 Kathleen H. Shea, Esq.
Clifford Mezo, Acting President Lowenstein, Newnan, Reis, Axelrad Local 1010 and Toll United Steelworkers of America 1025 Connecticut Avenue, N.W.
3703 Euclid Avenue Washington, D.C.
20036 East Chicago, Indiana 46312 Robert J. Vollen, Esq.
William H. Eichhorn, Esq.
c/o BPI Eichhorn, Morrow & Eichhorn 109 North Dearborn Street 5243 Hohman Avenue Chicago, Illinois 60602 Hammond, Indiana 46320 Edward W. Osann, Jr., Esq.
Atomic Safety and Licensing Suite 4600 Board Panel One IBM Plaza U.S. Nuclear Regulatory Commission Chicago, Illinois 60611 Washington, D.C.
20555 *
.. o
, Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Lomission Washington, D.C.
20555
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Comission Washington, D.C.
20555 *
/ $L" kcCll Steven C. Goldberg Counsel for NRC Staff 4
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