ML20039C260

Response Opposing Porter County Chapter Intervenors 811209 Motion to Compel Util to Implement Revised Plan for Restoration.Util Will Act When Termination Order Issued, Weather Permitting.Certificate of Svc Encl

ML20039C260
Person / Time
Site:	Bailly
Issue date:	12/22/1981
From:	Eichhorn W EICHHORN, EICHHORN & LINK, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8112290139
Download: ML20039C260 (8)

Text

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UNITED STisTES OF AMERICA DOCKETED l NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND L) CENSING A[ 8 All :57 QQ,?! S DiL,C; Tn the Matter of ) Docket No. 50DOhyU

) e NC ;<T.'ERN INDIANA PUBLIC ) (Construction Perniit e SE2'!2 CE COMPANY ) Extension)

(Bailly Generating Station, ) December 22, 1981 B6CW ,

Nuclear-1) ) ggy y NORTHERN INDIANA PUBLIC SERVICE COMPANY'S n ..#. ,=rr tsC RESPONSE TO PORTER COUNTY CHAPTER INTERVENORS

" MOTION Tu COMPEL NIPSCO TO IMPLEMENT '

Co p ITS REVISED PLAN FOR SITE RESTORATION _"

On August 26, 1981, Northern Indiana Public Service Company (NIPSCO) filed a Motion to Terminate Proceeding.

NIPSCO has since developed a repo2.L describing the construc-tion work which was performed at the Bailly site and the restoration work which is planned. That report has been revised to reflect comments received from the NRC Staff and Porter County Chapter Intervenors (PCCI) and was resubmitted to Mr. Denton on November 19.

We believe that NIPSCO, the Staff, and PCCI are in agree-ment regarding the nature and scope of site restoration work to be performed (and that no other intervenor cares to comment thereon). It also appears that no party objects to termination of the proceeding.

On December 9, 1981, PCCI served a " Motion to Compel NIPSCO to Implement Its Revised Plan for Site Restoration."

As the title indicates, the Motion asks the Board to order NIPSCO to implement " forthwith" its " Revised Plan" for restoring 8112290139 811222

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the Bailly site, thus implicitly recording that the planned restoration is satisf actory ' o Pr:CI. This action is advocated simply because "NIPSCO has doca nothing to inplement its Revised Plan . . . .

(Motion, p. 1.) The Motion asserts simply that no valid reason exists for further delay in implementing the Revised Plan . . . ."

In fact, of course, NIPSCO is awaiting entry of a termina-tion order, which presumably would impose the condition that NIPSCO implement the " Revised Plan." As that Plan indicatec, backfilling of the excavation will commence promptly upon receipt of necessary approvals and, weather permitting, take approximately 120 days to complete. However, the material used for backfilling may be dredged from Lake Michigan and dredging would not begin until the summer of 1982. PCCI has voiced no objection to that schedule. Indeed, no basis for objecting has been identified and, in our view, none exists. /

~*/ PCCI alleged in an earlier pleading (Motion Concerning Excavation dated October 1, 1981) "that the existence of the open excavation itself, at an elevation below that l of the natural level of the groundwater, results in dewatering the adjacent Indiana Dunes National Lake-shore." Previous allegations to that effect by the entities which now comprise "PCCI" were rejected by the Appeal Board. (Northern Indiana Public Service Co.

(Bailly Generating Station, Nuclear-1), ALAB-241, 8 AEC 841 (1974).) In any event, whatever concerns, founded or unfounded, PCCI may have in this respect can be resolved if the Board promptly issues an order terminating the proceeding on the condition that the site restoration plan is implemented .

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There is simply no need to compel NIPSCO to act. / NIPSCO intends to act once it is clear that the intended course of action is acceptable. The Motion to Compel should therefore be denied.

, PCCI's current Motion again urges that termination of the proceeding should be delayed until there has been " full implementation" of NIPSCO's plan for site restoration.

The deferral of termination is proposed in order to pro-vide a forum for hearing "possible claims of non-compliance" with the restoration plan. (Motion, p. 2.) We note that this suggestion apparently rests upon the assumption that NIPSCO will not complete the restoration plan which it has developed and which will presumably be imposed as a license condition and that the NRC Staff will not discharge its responsibilities to monitor compliance and take any necessary enforcement action. PCCI thus proposes extraordinary Board action contravening standard NRC practice regarding enforcement with essentially no justification. We know of no basis in statute or regulations for a Board to retain jurisdiction over a pro-coeding because of an intervenor's unsubstantiated and generalized fear that everyone else will default on his obligations.

• / In NIPSCO's view, the Board's authority to compel that action is questionable. However, the Board need not decide that matter since there is no reason to compel such action. NIPSCO will not object to inclusion in the Board's termination order of the requirement that NIPSCO restore the site as outlined in the revised report

, of November 19.

(See Portland General Electric Co. (Trojan Nuclear Plant) ,

ALAB-451, 6 NRC 889. 891 n.3 (1977); Duquesne Light Co.

(Beaver Valley Power Station, Unit 1), ALAB-408, 5 NRC 13,3, 1386 (1977); Public Servi e Co. of New Hampshire (Seabrook Station), ALAB-356, 4 NRC 525, 535-540 (1976); Long Island Lighting Co. (Shoreham Nuclear Power Station), 4 AEC 521, 522 (1971).)

PCCI also takes the position that "the Bailly proceedings should be terminau.d wi'ch prejudice. " The initial reference to the possibility of termination "with prejudice" was con-tained in the Licensing avard's order of September 1, 1981, ,

where the Board asked NIPSCO to file "its objection, if any, to the termination's being with prejudice and whatever reasons it may have for such objection." The Board did not state that such a termination would be appropriate or identify any basis for such a tarmination. As NIPSCO then stated, no justifica-tion for imposition of the condition "with prejudice" is apparent.

PCCI urged termination "with prejudice" in its October 1 l

l Motion and repeats the suggestion in its current Motion.

l However, it has not identified a basis for imposing that .

l condition. PCCI says only:

f l Surely the lack of finality in this ten-year-old

! proceeding, inherent in a dismissal "without I

prejudice," is more than suf ficient harm to the public interest and the interests of all intervenors to justify dismissal with prejudice. (Motion, p. 4.)

Two recent Appeal Board decisions establish that dis-missal "with prejudice" is a "particularly harsh and punitive term imposed upon withdrawal." (Philadelphia Electric Co.

(Fulton_ Generating Station), ALAB-657, slip opinion at 9 (November 17, 1981).) It can be used to remedy " conduct and harm" of a nature and magnitude which' merit such a measure but

. . . the severe sanction of a withdrawal with prejudice should be reserved for those unusual situations which involve substantial prejudice to the opposing party or to the public interest in general.

(Puerto Rico Electric Power Authority (North Coast Nuclear Plant), ALAB-662, slip opinion at 12 (December 7, 1981),

citing Fulton, supra, slip opinion at 18.) There has'bcen no allegation that the enunciated standard is met in this case.

PCCI's reference to "the' lack of finality" is erroneous.

Termination without prejudice would be a final disposition of j the current application. It is possible that PCCI is objecting i

i to a disposition which would theoretically allow NIPSCO to file a new proposal at some future time to construct a nucle'ar plant at the site--a proposal which PCCI would, presumably, feel obliged to oppose. However, the theoretical possibility l

l that such a proposal might be filed--which would occur only if the public interest so warranted at a future time--is l exactly what should not be foreclosed now without reason.

I (North Coast, supra, slip opinion at 12-13.)

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Moreover, the theoretical inconvenience to PCCI in possibly choosing to oppose a theoretical future application provides no basis for a termination "with prejudice."

That kind of harm--the possibility of future litigation with its expenses and uncertainticd--

is precisely the consecuence of any dismissal without prejudice. It does not provide a basis for departing from the usual rule that a dismissal be without prejudice.

(North Coast, supra, slip opinion at 16-17; citing Jones v.

SEC, 298 U.S. 1, 19 (1936); 5 Moore's Federal Practice T 41.05[1] at 41-72 to 41-73 (2d ed. 1981).)

In summary, nothing has been raised in the more than three months since NIPSCO requested termination upon which termination with prejudice could be based. We respectfully urge the Board to promptly deny PCCI's "Motica to Compel" and to terminate this proceeding "without prejudice."

Respectfully submitted, EICHHORN, EICHHORN & LINK 5243 Hohman Avenue 4 Hammond, Indiana 46320

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By: ____ .. j gg William H. Elchhorn _

Attorneys for Northern Indiana Public Service Company LOWENSTEIN, NEWMIsN, REIS

& AXELRAD 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036

v * -

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 1

4 In the Matter of ) Docket No. 50-367

) ,

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

)

(Bailly Generating Station, ) December 22, 1981 l

, Nuclear-1) )

L 1

CERTIFICATE OF SERVICE I hereby certify that copies of Northern Indiana Public Service Company's Response to Porter County Chapter Intervenors' i " Motion to Compel NIPSCO to Implement Its Revised Plan for Site Restoration" dated December 22, 1981, were served on the following by deposit in the United States mail, postage prepaid, on this 22nd day of December, 1981:

Herbert Grossman, Esquire, Chairman Administrative Judge U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Robert L. Holton Administrative Judge School of Oceanography Oregon State University Corvallis, Oregon 97331 t

Dr. J. Venn Leeds

. Administrative Judge 10807 Atwell Houston, Texas 77096 l

Docketing and Service Section i Office of the Secretary U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 Howard K. Shapar, Esquire Executive Legal Director U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 i

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_2-Stephen H. Lewis, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Susan Sekuler, Esquire Fnvironmental Control Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60601 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. Craham, Esquire One IBM Plaza 44th Floor Chicago, Illinois 60611 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America Local 1010 3703 Euclid Avenue East Chicago, Indiana 46312 Mr. George Grabowski Ms. Anna Grabowski 3820 Ridge Road Highland, Indiana 46322 WILLDs ~H. ChHORN Eichhorn, Ei'chh~orn &' Link ~

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

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