ML20052C728

Answer Objecting to & Proposing Mods to ASLB 820412 Memorandum & Order.Objects to Proposed Order Calling for Immediate Termination of Proceedings.No Assurance Util Will Comply If Proceedings Terminated.W/Certificate of Svc

ML20052C728
Person / Time
Site:	Bailly
Issue date:	04/29/1982
From:	Whicher J PORTER COUNTY CHAPTER INTERVENORS, VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8205050437
Download: ML20052C728 (9)

Text

.,=g.

~-

, N 9

s yg UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

NORTHERN INDIANA PUBLIC )

SERVICE COMPANY -) Docket No. 50-361 % IfQ (Bailly Generating Station, ) #;7 g Nuclear-1) ) Cy7 .; N' N

PORTER COUNTY CHAPTER INTERVENORS' if

'q i

a 3 .cGl.9' 1 L ,. p.

~

OBJECTIONS TO, AND REQUESTED MODIFICATIONS OF, sa PROPOSED ORDER TERMINATING PROCEEDING kh ]

'k .4 y [

kb/i  ?

Porter County Chapter Intervenors (PCCI), by their at rneysp \

- pursuant to the Board's April 12, 1982, Memorandum and Order (Issuing Proposed Order Terminating Proceeding) (" Memorandum")

hereby state the following objections to, and request modifications to, the " Proposed Order." For the convenience of the Board, attached hereto is a Modified Proposed Order containing the modifications to the Board's Proposed Order which PCCI request.

PCCI object to that portion of the Proposed Order which calls for immediate termination of these proceedings. The Board has succinctly set forth some of the reasons for refraining from terminating the proceeding at pages 2 and 3 of the Memorandum.

There are, however, other compelling reasons not considered by the Board. -*/

• / The Board's concern about " depart [ing] from a general procedure sanctioned by the Appeal Board" (Memorandum at p. 4) is not justified. In Toledo Edison Company (Davis-Besse Nuclear Power Sta tion, Units 2 and 3),ALAB-622, 12 NRC 667 (1980); ALAB-652, $)gCh3 14 NRC 627 (1981), none of the imposed conditions were contro- I verted, and all had been approved by all parties to the pro- ,

ceeding, a situation quite distinguishable from the instant / /  !

Case.

8205050437 820429 )

PDR ADOCK 05000367 '

O PDR 2 J

y ,

NIPSCO has evidenced clearly its recalcitrance with respect to restoration of the Bailly site. For example, there is no evidence that NIPSCO has begun implementation of its plan even in the face of the Board's January 29 Order compelling it to do so

" forthwith." NIPSCO's unwillingness even to tell PCCI o f any activities it may have undertaken to begin implementation of a plan further illustrates this attitude. In the absence of a Licensing Board with jurisdiction over NIPSCO there may well be no mechanism to enforce a reporting requirement set forth in the Proposed Order. -*/

The absence of a Licensing Board with jurisdiction over NIPSCO also means that there will be no apparent motivation for NIPSCO to cooperate with the staff. In short, there is absolutely no assurance that NIPSCO will fulfill its obligations under the terms of tne Proposed Order if the proceedings are terminated before site restoration. NIPSCO's asserted " willingness to bind itself" to the site restoration plan (Memorandum at p. 4) could well prove illusory and, as the Board acknowledges, the jurisdiction of some other body to enforce the conditions is " hazy, at best" (Memorandum at p. 3) . Moreover, even if NIPSCO did comply with "the exact terms of its current site restoration plan" (id.),

the absence of a Board with jurisdiction could prevent the implementation of changes in the plan which subsequent events demonstrate to be appropriate.

• / PCCI believe that a reasonable reporting requirement imposed upon NIPSCO, with a Licensing Board available to enforce that requirement, is an adequate alternative to the discovery which they have initiated and, therefore, do not object to the Board's treatment of that discovery.

M

r

. N PCCI also object to some of the specifics of the reporting requirements contained in the Proposed Order because they are not suf ficiently detailed, particularly when viewed in light of NIPSCO's refusal to extend even a basic courtesy of providing information to PCCI. Three requirements for each report are set forth in the Proposed Order:

A. a description of the progress of site restoration activities including "all activities undertaken and all matters accomplished";

B. an estimated percentage of completion; C. an estimated completion date.

PCCI submit that the lack of detail invites NIPSCO to side-step the reporting requirement, and that merely ordering a

" description", as set forth in paragraph 7 of the Proposed Order, leaves open the possibility for NIPSCO to submit sketchy, super-ficial and inadequate " reports. " Further, there is no requirement that NIPSCO document the contents of the reports.

PCCI further object, in three respects, to paragraph 8 of the Proposed Order, which provides for inspection. First, the provision is inadequate because it allows only one inspection, as opposed to periodic inspections as the work progresses.

Without period inspections, inadequate compliance with the plan may not be detected at an appropriate time. Second, the allowable inspection is not sufficiently described. For example, is it to be limited to visual inspection of the site? Is any testing to be allowed? If so, to what extent? Third, there is no provision for experts to accompany the inspecting parties.

M

p.. .. . , --

'Given the technical nature of the site restoration, inspections may be useless without the presence and advice of experts.

In sum, PCCI object to the Proposed Order in the respects set forth above, and propose that it be modified in the respects reflected in attached Modified Proposed Order.

DATED: April 29, 1982 Respectfully submitted, Robert J. Vollen Jane M. Whicher by: el C1__.- t #@ Fw Jane M. Whicher Attorneys for Porter County Chapter Intervenors Robert J. Vollen Jane M. Whicher c/o BPI 109 North Dearborn Suite 1300 Chicago,- IL 60602 (312) .641-5570 D

t _

4 A

MODIFIED PROPOSED ORDER It is hereby ordered:

1. That NIPSCO's motion to terminate the proceedings is held in abeyance until site restoration, described in NIPSCO's revised site restoration plan approved by the Board by Order dated January 29, 1982, is completed. Upon agreement of the parties that restoration is completed, the Board shall issue an order terminating these proceedings; if agreement is not reached, the Board may, upon motion by any party, determine whether site restoration is completed and issue such an order if appropriate.

2. That NIPSCO's application for extension of Construction Pe rmit No . CPPR-104 is deemed withdrawn and that Construction Permit No. CPPR-104 is deemed to have expired without further opportunity to NIPSCO to revive such permit.

3.

~

That NIPSCO must implement the revised site restoration plan agreed to by NIPSCO, the NRC staff, and PCCI, and approved by the Board by Order dated January 29, 1982.

4. That NIPSCO must begin implementation of that plan no later than August 1, 1982.

5. That NIPSCO must complete that plan no later than September 1, 1983.

6. That NIPSCO and the NRC staff must serve a report (jointly, if possible, or separately) on all parties on June 1, 1982 and the first day of each third month thereafter, and on the completion date of the site restoration (but no later than September 1, 1983 if not completed) . Each report shall contain:

A

4

~

a. A copy of each contract or purchase order entered into by NIPSCO with respect to site restoration,

b. A list of contracts or purchase orders remaining to be let, made or otherwise undertaken, together with a description of the work to be done under such contract or purchase order, and the date by which NIPSCO expects the contract or purchase order to be let, made or otherwise undertaken.

c. A detailed description of all site work done, and a detailed description of all site work remaining to be done, not encompassed within subparagraphs (a) and (b) above.

d. The estimated percentage of completion of site restoration, together with the basis for the estimate.

c. The estimated completion date.

7. That, at the time of service of each report, NIPSCO is also to give each other party notice of, and arrange for, an inspection of the site, under reasonable conditions, between 10 and 20 days days thereaf ter at which each party, if an individual, or one represe:.tative from each organizational party (even if intervening jointly with other organizations), may be present along with one expert for each such party, if the party so desires.

8. Each party participating in the site inspections may conduct reasonable inspection and testing activity. If the parties cannot agree on what inspecting and testing activity is reasonable, they_ shall so inform the Board, and the burden shall be on NIPSCO to demonstrate that the proposed inspection or testing activity is unreasonable.

)

- J

. . , _ , . ~ , . . . .

.j

. .. +

f

9. That, in the event NIPSCO has not completed its site restoration by September 1, 1983, NIPSCO must file a complete report with the NRC Commissioners, with copies to all parties, setting forth each reason why restoration was not completed and all plans for completion.

DATED:

Atomic Safety & Licensing Board h

- . = _

+n .. . - - y ,, .

t 6

• UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

NORTHERN INDIANA PUBLIC ) Docket No. 50-367 SERVICE COMPANY )

)

(Bailly Generating Station, )

Nuclear-1) )

CERTIFICATE OF SERVICE I hereby certify that I have served copies of Porter County Chapter Intervenors' Objections To,and Requested Modifications Of, Proposed Order Terminating Proceeding on each of the persons listed on the attached Service List by causing them to be deposited in the U.S. mail, first class postage prepaid, this 29th day of April, 1982.

f April 29, 1982 Robert J. Vollen Jane M. Whicher by: AC

• M -

Jane M. Whicher Attorneys for Porter County Chapter Intervenors  ;

Robert J. Vollen Jane M. Whicher c/o BPI  !

~

109 North Dearborn Suite 1300 Chicago, IL 60602 (312) 641-5570 ,

A

_ _ _ _ . _ _ _ . _ . _ _ _ _ _ _ _ . _ . _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ . _ . _ . ___.__m

(.

K

, , 0 .

SERVICE LIST Herbert Grossman, Esq. Gecrge & Anna Grabowski Administrative Judge 3820 Ridge Road Atomic Safety & Licensing Highland, Indiana 46322 Board Panel U.S. Nuclear Regulatory Dr. George Schultz Commission 807 E. Coolspring Road Washington, D.C. 20555 Michigan City, Indiana 46360

.Dr. Robert L. Holton Administrative Judge School of Oceanography Oregon State University Corvallis, Oregon 97331 Mr. Mike Olszanski Mr. Clifford Mezo Local 1010 - United Steelworkers Dr. J. Venn Leeds of America.

Administrative Judge 3703 Euclid Avenue 10807 Atwell East Chicago, Indiana 46312 Houston, Texas 77096 Stephen H. Lewis, Esq.

. Office of the Executive Legal Director U.S. Nuclear Regulatory Commissio-Maurice Axelrad, Esq. Washington, D.C. 20555 Kathleen H. Shea, Esq.

Lowenstein, Newman, Reis, Anne Rapkin, Asst. Attorney Gener Axelrad and Toll John Van Vranken, Environmental 1025 Connecticut Ave., N.W. Control Division Nashington, D.C. 20036 188 W. Randolph - Suite 2315 Chicago, Illinois 60601 William H. Eichhorn, Esq.

Eichhorn, Eichhorn & Link Docketing & Service Section (3) 5243 Hohman Avenue Office of the Secretary Hammond, Indiana 46320 U.S. Nuclear Regulatory Commissio Washington, D.C. 20555 Diane B. Cohn, Esq.

William P. Schultz, Esq. Stephen Laudig, Esq.

Suite 700 21010 Cumberland Road 2000 P Street, N.W. Noblesville, Indiana 46060 Washington, D.C. 20036 Atomic Safety & Licensing Board Panel - -

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

-