ML20041A472

Motion for Reconsideration of ASLB 820129 Order Requiring Implementation of Revised Plan.Aslb Course Falls Short of ASLB Responsibility to Issue Timely Rulings,Is Unfair to Util & Exceeds ASLB Authority.Certificate of Svc Encl

ML20041A472
Person / Time
Site:	Bailly
Issue date:	02/16/1982
From:	Eichhorn W EICHHORN, EICHHORN & LINK, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8202220196
Download: ML20041A472 (12)

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, ' DOCKETED N U'i?SC UNITED' STATES OF AMERICA. '82 FEB 18 P3:51 NUCLEAR REGULATORY COMMISSION y fcr> y <r BEFORE THE ATOMIC SAFETY AND LICENSING' BOARD'l '

In the Matter of ) Docket No. 50-367

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{- NORTHERN INDIANA PUBLIC ) (Construction Permit SERVICE COMPANY ) Extension) { \ bl (Bailly Generating Station, _ February 16, 198 [' <Q Nuclear-1) E) ,

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, NORTHERN INDIANA PUBLIC SERVICE COMPANY'S tw,, y , ";- /

i MOTION FOR RECONSIDERATION OF ORDER 9 C DATED JANUARY'29, 1982 ], N' '

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. On January 29, 1982, the Licensing Board issued.an " Order

-(Requiring NIPSCO to Implement-Revised Plan)." For the reasons

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set forth below,. we respectfully suggest that the course chosen by the Board falls short of the Board's responsibility

-to issue timely rulings on matters before it, is unfair to Northern Indiana Public Service' Company (NIPSCO) , and exceeds the Board's authority. We therefore file this Motion for Reconsideration of Order. We request that the January-29 Order be withdrawn and the attached proposed order be issued in lieu thereof.

Responsibility for Timely Conduct

. of the Proceeding The Commission has exhorted licensing boards to do their best to meet the agency's responsibilities in the licensing 0503 g area. Admittedly, in formulating recent instructions to boards, j 8202220196 820216 PDR ADOCK 05000367

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the Commission focused ~on applications'for_ opera' ting licenses 7

!' rbutothere is noireason to believe that its concern is'l'imited Lto those proceedings.' (Statement of' Policy'on Conduct of Licensing ' Proceedings, '4 6- Fed. Reg. 28,533. (May 27, 1981).) .  ;

The: Commission reiterated its " fundamental commitment to a-

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fair and thorough hearing process." (46 Fed. Reg. at 28,534.)1 l It emphasized "the need for the balanced and efficient conduct i

of all phases'of the hearing process" (Id.) and stated L

expressly:

. The' licensing boards should issue timely

rulings on all matters. In particular, rulings should 1xf issued on crucial or 'potentially

i. dispositive issues at the earliest practicable juncture in the' proceeding.-

(46f Fed. Reg.-at 28,535.)'

The Order of January 29 does not, we respectfullyLsubmit, 4 discharge the responsibility to " issue timely rulings on all I  !

! matters." ,

l' l The Commission's policy statement acknowledged that 1

proceedings vary in "the difficulty.and complexity of issues to be decided, the number of such issues, and the size of the record compiled." (1}. ) However, the Commission stated I

the expectation that, taking those. factors into. account,

" decisions will issue as soon as practicable after the sub-i mission of proposed findings of fact and conclusions of law."

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- (Id.) In this case, there are no proposed findings but, surely, the same expectation of an expeditious decision must apply to the far simpler matter of concluding the proceeding.

Matters Remaining to Be Decided The following matters remain to be decided by this Board:

1. Is the proceeding to be terminated? (NIPSCO's Motion to Terminate Proceedi'ng was filed on August 26, 1981; PCCI responded on September 10 and the Staff on September 15, 1981.)

2. Is the termination, if any, to be entered "with prejudice"? (PCCI so requested in its Response of September 10, 1981, and renewed that request in its Motion Concerning Excavation dated October 1, 1981, and Motion to Compel of December 9, 1981. NIPSCO opposed the sugges-tion in its Response to Licensing Board Order dated September 17, 1981, and Response to PCCI's Motion to Compel dated December 22, 1981. The Staff's similar views are set out in its Response to PCCI's Motion to Compel dated December 29, 1981. Recent Appeal Board decisions t

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are in fact dispositive of this question.

(Puerto Rico Electric Power Authority (North Coast Nuclear Plant), ALAB-662, 14 NRC (Dec. 7, 1981); Philadelphia Electric Co.

(Fulton Generating Station), ALAB-657, 14 NRC (Nov. 17, 1981).)

3. What site restoration, if any, is to be required?

(NIPSCO's revised plan for site restoration was submitted November 19, 1981. PCCI has stated no objection to the plan and in fact on Decem-ber 9, 1981, moved to compel its implementation.

In its Response to PCCI's Motion to Compel dated December 29, 1981, the Staff has stated that the plan is acceptable.)

4. Is the proceeding to terminate before or after completion of any site restoration? (PCCI has urged that termination be delayed until the Board determine that restoration has been satisfactorily completed. Motion Concerning Excavation dated October 1, 1981, and Motion to Compel dated December 9, 1981. NIPSCO has opposed that position in its Response to the Motion to Compel dated December 22, 1981. The Staff also urges that the order of termination be conditioned upon implementation of the approved restoration

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plan but concludes that1 retention.of jurisdiction by -the' Board to oversee -implementation 'ofithe plan

.is unnecessary.* / Staff's Response to PCCI's Motion'Concerning Excavation,. dated-~ November 18,.

1981,_and Response to PCCI's Motion _to Compel dated December.29, 1981.)

5. 'Is any termination to be conditioned upon NIPSCO's-a payment of "PCCI's expenses and attorney's fees in this proceeding"?

(PCCI so requested in its Motion for an Order dated January 8, 1982.

NIPSCO and the Staff have demonstrated th'at the requested. relief is unsupported-by_ law or fact in their-respective responses of January 25 and 28, 1982.)

i-The-Board's January 29, 1982 Order The Board's recent order addresses the matters identified above in the: following way:

1. Not decided, i.

2.

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Not decided.

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3' . Perhaps decided--that is, "NIPSCO's revised site

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restoration plan is approved" but the Order

! fails to state'whether that plan is sufficient, thus leaving open the possibility of requiring additional action.

• / The Board's Order is incorrect.in suggesting (p. 1) that the Staff presently urges that NIPSCO's Motion to Terminate 5

Proceeding need not be granted.until restoration is completed..

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'4. Perhaps decided--that is,-implementation of

-the restoration = plan.is to begin.but it is not stated when any other Board action might-be taken or whether the Board may intend to defer. termination until restoration is complete.

,This would be contrary to the vigorous and-persuasive arguments presented by NIPSCO.

5. Not decided. -

In our view,.this piecemeal. approach to the resolution of this proceeding:is inconsistent with Commission policy..

We recognize that the Board has stated:

The Board considers it unnecessary to .

delay the implementation of the. site  !

.ofrestoration plan,pending the resolution tliese issues.-

This statement appears.to imply that the Board believes there is some urgency attached to. accomplishment of site restoration.

4 However,-there is, we submit, no evidence to that effect l

upon which it can rely. (NIPSCO's Response to PCCI's Motion

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Ito Compel, n. at p. 2 (December 22, 1981).)

Tha practical effect of the Board's' Order is to grant PCCI's Motion to Compel NIPSCO to Implement Its Revised i

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~*/ "These issues" are identified as " including-the form of the termination order, the supervision of the site restora-tion plan and'the payment of attorneys' fees."

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_7-Plan for Site Restoration. That action is unjustified and may be prejudicial to NIPSCO's rights.

A site restoration plan would not be required absent a termination of the p ject and the associated proceedings now before the Board. Consequently, implementation of such a plan, before issuance of a termination order with its attendant conditions, is inappropriate. If the Board concludes that NIPSCO's proposed site restoration plan meets all condi-tions which it may impose on termination of the proceeding, a termination order incorporating a requirement to irp]e- m ment the restoration plan, may be appropriate. If the implementation order precedes the termination order, NIPSCO is forced to undertake its restoration plan with only the hope, but without assurance, that the Board will not impose additional conditions in the termination order which are inconsistent with the restoration plan which is under way or possibly completed. /

Furthermore, we respectfully suggest that the Board has execeded its authority. We have found nothing in the Atomic Energy Act or NRC regulations which could be said to authorize a licensing board to impose a condition such as that contained in the January 29 Order except in circumstances where it is

~*/ It must be remembered that there are intervenors in this proceeding who have to date remained silent on the restora-tion and termination issues.

4 ancillary to the exercise of authority which the Board clearly does possess--such as the granting of a license or terminating of a proceeding. We do not contend that this Board is without authority to require site restoration as part of termination of this proceeding. However, that is precisely what has not been done here.

We urge that the January 29 Order be withdrawn and another Memorandum and Order, as proposed in the Attachment, be issued.

Respectfully submitted, EICllllORN , EICIll10RN & LINK S243 Ilohman Avenue llammond , Indiana 46320 By: ./ M _ WZ.--

William H. Eichhorn Attorneys for Northern Indiana Public Service Company l

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LOWENSTEIN, NEWMAN, REIS

& AXELRAD 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036

ATTACHMENT Proposed Memorandum and Order On August 26, 1981, Northern Indiana Public Service Company (NIPSCO) filed a Motion to Terminate Proceeding in view of the fact that it had on the same date withdrawn its application for extension of the Bailly construction permit.

No party opposes the termination.

NIPSCO ha; submitted a plan for restoration of the Bailly site which plan is acceptable to the Staff, intervenors PCCI, and this Board. No other party commented on the plan.

Accomplishment of that plan will stitute a full, complete, and sufficient restoration.

Intervenors PCCI have requested that the termination be entered "with prejudice." However, they have failed to identify any valid justification for that action. We conclude that there is no basis for termination with prejudice under the principles which govern us. (Puerto Rico Electric Power Authority (North Coast Nuclear Plant), ALAB-662, 14 NRC (Dec. 7, 1981); Philadelphia Electric Co. (Fulton Generating Station), ALAB-657, 14 NRC (Nov. 17, 1981).) PCCI's Motion is denied.

Intervenors PCCI have also requested that NIPSCO be required to pay "PCCI's expenses and attorney's fees in this proceeding." In our view, this Board is without authority to impose such a requirement even if there were justifica-tion for so doing--which there is not. PCCI's Motion is denied.

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In light of the foregoing and based-upon a consileration of the entire record in this matter, it is this day of February, 1982, ORDERED That NIPSCO's Motion to Terminate Proceeding is granted without prejudice and its Application for Extension of Construction Permit is deemed withdrawn on the condition that NIPSCO shall carry out the site restoration activities described in its " Report on the Resolution of All Construction -

Activities Undertaken at the Bailly Site for the Construction of Bailly Generating Station Nuclear-1 for Northern Indiana Public Service Company" (Revised November 18, 1981).

The Atonic Safety and Licensing Board

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ~ ATOMIC SAFETY - AND LICENSING BOARD 4

- In the'~ Matter'of ) Docket No. 50-367

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

)

(Bailly GeneratingLStation, ) February'16, 1982

- Nuclear-1) )

4-CERTIFICATE OF: SERVICE-I hereby certify-that copies of Northern Indiana Public Service Company's Motion for Reconsideration of Order Dated.

January 29, 1982 dated February 16, 1982, were. served on the following by deposit in the United States _ mail, postage prepaid, on this~16th day of February, 1982

Herbert Grossman, Esquire, Chairman A.ministrative-Judge

, U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Robert L. Holton i Administrative. Judge ~

School of Oceanography Oregon' State-University.

,- Corvallis, Oregon 97331

< s Dr. J. Venn Leeds I

Administrative Judge 4

10807 Atwell Houston, Texas 77096 i.

Docketing and Service Section g-Office of the Secretary 4

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 l

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~ Stephen H. Lewis, Esquire Offi'ce'of the Executive Legal Director U.S.. Nuclear Regulatory Commission Washington,.D.C. 20555 Susan Sekuler, Esquire Environmental 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. Graham, 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 I L

Ms. Anna Grabowski 3820 Ridge Road Highland, Indiana 46322 ,

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fLLIAM H. EICSHORN _

Eichhorn, Eichhorn & Link 5243 Hohman Avenue Hammond, Indiana 46320 Attorneys for Northern Indiana

Public Service Company