ML20058A444
| ML20058A444 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 01/22/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, TASK-AINV, TASK-SE SECY-81-042, SECY-81-42, NUDOCS 8110280568 | |
| Download: ML20058A444 (76) | |
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SECY-81-42 January 22., 1981_
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ADJUDICATORY ISSUE
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(Notation Vote) i l
The Commissioners For:
Leonard Bickwit, Jr.
From:
General Counsel f
REVIEW OF ALAB-619 (NORTHERN INDIANA PU l
Subiect:
SERVICE COMPANY) l Bailly Generating Station,' Nuclear-1 Facility:
al.
Petition for~
Filed by City of Gary et Review:
To inform the Commission of an Appeal Board
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l in our opinion,
Purpose:
decisionptiich, i
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Review Time (as extended).
February 6, 1981 Expires:
The Appeal Board 's decision in - ALAB-619, affirmed the
- 1980, Discussion:
issued on November 20, two would-Licensing Board 's conclusion that i
be intervenors had not raised contentionssu l
now underway on the licensee's request for an i
extension of the construction completionthe City of Gary and j i
The petitioners, George Schultz, had raised the issues of site l
date.
The suitability and emergency planning.
Appeal Board's decision may be summarized as j
follows:
Anyone who had standing at the j
1 Standing.
or would have construction permit stage, standing at the operating license stage, ha j
The focus of the construction proceeding.
information in th'.s r:ccrd was c'nic:f l
Peter Crane, OGC
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permit extension proceeding is not, as applicant and staff have asserted, solely the causes and incremental effects of the delay in completion; rather the extension cannot be divorced from the construction and operation of the f acility.
Standing, however, is distinct from the issue of contentions:
a i
petitioner who has standing but has not raised at least one acceptable contention cannot intervene.
2.
Contentions.
The Appeal Board's decision in Indiana and Michigan Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), ALAB-129, 6 AEC 414 (1973) addressed the scope of conten-tions in a construction permit extension pro-ceeding.
That decision,.made under the specific circumstances.of the particular case, held that the issues raised there by the inter-
~
venors were more appropriate for resolution at the operating license review stage.
Cook stands for the proposition that an intervenor in a construction permit extension proceeding can litigate safety and environmental issues wSIch (a) arise from reasons used to justify the CP extension and (b) cannot abide the OL proceeding.
Y 3.
The Contentions in this Case.
The Appeal Board rejects the petitioners' claim that all matters arising af ter the issuance of the CP can only be be examined at the OL stage, and it agrees with the petitioners that it would
" offend reason" to suggest that challenges to the suitability of the site can only be heard at the operating license review stage.
The Appeal Board parts company with the petitioners on the appropriate means for examining site suitability, pointing to the 2.206 petitions challenging the suitability of the Bailly site that are currently before the Director, NRR.
The Appeal Board expresses confidence that the petitions will receive careful consideration by the Director, NRR, and that if they are turned _-
down, the Director's denial will receive "especially close scrutiny" from the Commission.
The Appeal Board stresses that although the petitioners in this case do not satisfy the precise terms of Cook (because the safety issue raised does not arise from reasons used to jus-tify the extension of the completion date),
the emphasis in Cook was on a " common sense" approach, based on the " totality of the cir-cumstances."
Thus if there were: not the
3 s
the Appeal avenue provided by 10 CFR 2.206, Board would have great difficulty finding anything in Cook to preclude an examination of the petitioners' site suitability conten-As it tions in the CP extension proceeding.
the 2.206 remedv.must be regarded is, however, as exclusive.
The Appeal Board notes 4.
Other Matters.
that the Notice of Hearing published by the NRC staf f seems by its language to limit the scope of the hearing to whether the licensee has shown " good cause" for the delay, i.e._,
whether the reasons adduced are those which 10 CFR 50.55(b) recognize as a basis for extending a construction completion date.
The Appeal Board states that the dimensions of a construction permit extension proceeding are established by Section 185 and by the Commission's implementing regulation (10 CFR 50.55(b)) and may not be narrowed by Though taken literally, the Notice of Hearing.
the staf f's notice of hearing might limit the proceeding to consideration of whether t the hearing --
requirements of the regulation,as described in not so limited.
The Petition for Review of ALAB-619.
The City of Gary, et al., contend that the Appeal Board was correct in interpreting Section 185 as requiring a " common sense" approach when determining the scope of a construction permit extension proceeding.
The petition says that the Appeal Board appropriately rejected both the view that the proceeding should be limited to the causes adduced by the permittee, and the view that a f ar-ranging inquiry is mandated into all safety and environmental issues which may have arisen since the CP issued.
The petition contends, however, thatt it was contrary to law and sound policy to hold that where there may be an alternative avenue for the addressing a compelling safety concern, resolution of that concern "becomes so good cause to extend the construction permit.
L 4
e The petition cites a hypothetical example raised by the Chairman of the Appeal Board at oral argument.
That situation supposes delays in construction, followed by a timely request for a CP extension, followed by a major earthquake.
The petitioners assert that it would defy common sense to exclude the issue of earthquakes from the hearing simply because earthquake problems were not among the reasons for the delay of construction.
The petition states that the Three Mile Island accident is an event analogous to the major earthquake postulated by the Appeal Board Chairman, because the accident makes it seem unlikely that the Commission would grant an -
operating license to a plant located at a site that could not be evacuated.
The petition states that the Appeal Board has recognized the petitioners' evacuation concerns to be compelling, and apparently would have allowed intervention if no Petitioners alternative forum were available.
assert that since the issue is the scope of
" good cause" under Section 185, the possibility of an alternative forum cannot deprive them of their rights to have the issue heard in the extension proceeding.
Moreover, they assert, the 2.206 procedures are not an acceptable substitute, since they place the burden on petitioners to demonstrate that a show cause Section 185, on the proceeding is warranted.
other hand, places the burden on the licensee to show good cause to allow completion of In addition, 10 CFR 2.206 gives the plant.
the Director, NRR, discretion to decide whether to initiate a proceeding, with no opportunity -for the petitioners to seek Commission review of a denial, Finally, the Appeal Board seemed-to assume that no party disputed the Director's authority to issue a show cause order.
However, on the same the Appeal Board acted, the licensee day that filed comments with the Director, stating that a 2.206 proceeding was not an appropriate means for resolving the issues raised, and urging against issuance of a show cause order.
In sum, petitioners urge review and reversal of the Appeal Board decision, because it means that safety issues so compelling as possibly-to demonstrate that good cause to complete the plant is lacking have'nevertheless been declared inadmissible in a CP extension proceeding.
s 5
s NIPSCO'S Opposition to the Gary Petition.
NIPSCO argues that the Commission must look to its governing regulation, which states that petitions for review of Appeal Board decisions will not ordinarily be granted "unless it appears the case involves an important matter that could significantly af fect the environment, the public health and safety, or the common defense and security, constitutes an important antitrust question, involves an important procedural issue, or otherwise raises important questions 10 CFR 2. 786 (b) ( 4).
of public policy.... "
NIPSCO urges that the Gary petition meets none of these tests, since the exclusion of emer-gency planning matters from litigation in this proceeding can have no.effect whatever the environment, or the common on safety, defense and security, since the kind of accidents for which emergency planning is required cannot take place during constr'uction.
Moreover, the Commission has established new emergency planning requirements for holders of operating licenses and for applicants for operating licenses and construction permits.
It has not, however, established requirements for holders of construction permits.
.6>
I rulif Titigated The issue of evacuability was in the construction permit issuance proceeding, and both the Licensing and Appeal Boards have held the issue inadmissible in the extension proceeding.
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-In its aavance notice of rulemaking on rhactor' siting criteria, the Commission directed its I
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staff to review existing sites, including I
those where plants with construction permits
.are located.
45 Fed. Ren-50350 (1980).
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l Contrary to the petitioners' assertion,~Ihe Appeal Board did not assume that the 2,206 petitions were unopposed, nor did the Appeal Board assume that the Director would grant those petitions.
NIPSCO adds that though the merits of those petitions are not now before the Commission, it believes that the Director should deny the petitions.
NIPSCO states that it makes no sense to reovaluate the suitability of the site in a show cause proceeding when the Commission has not established new standards of site acceptability or minimum evacuation times which a Board could apply.
NIPSCO assumes that it was just such considerations that led the Commission to choose the method it did -- the staf f reassessment described above -- for addressing the issue of emergency planning at plants with construction permits.
NRC Staff Opposition to the Gary Petition The Staf f contends that the Appeal Board 's 1
decision in ALAB-619 was correct as a matter l
of law, and that it presenti no issues of j
policy warrpnting review.
The staf f urges dhat to open the construction 1
permit extension proceedina to matters altogethe i
unrelated to the cause of the delay would do violence to the integrity of the two-stage licensing process, contradicting the Commission'
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settled policy -- enunciated again only two years ago with reference to the same plant and the same petitioners -- in i
f avor of using the operating license
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review stage to address matters arising during construction or left unresolved 5
at the construction permit issuance 3
stage.
OGC Analysis j
In our view, i
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~the Licensing In the present case, Board, in deciding against the petitioners, nevertheless commented that they had made a strong case that the site was unsuitable.
In ALAB-619, the Appeal while disclaiming any intent to
- Board, comment on the merits of the 2.206 said that the petitioners had petitions,
" supplied no basis to presume that the Director is any less sensitive than are they to the undesirability ef _ allowing construction of a nuclear facility to l
proceed on a site in the teeth of sub-stantial cause to believe that that-sooner or later -- will have to site --
be declared unsuitable from a safety standpoint."
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Recommendation:
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c; t ~~K-Leonard Bickwit, Jr.
General Counsel 1
Attachments :
1.
ALAE-619 2.
Gary petition for review 3.
NIPSCO opposition 4.
Staff opposition 1
i Comissioners' coments should be provided directly to the Office of the Secretary by c.o.b. Thursday, February 5, 1981.
l Comission Staff Office coments, if any, should be submitted to the Comissioners NLT January 29, 1981, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and coment, the Comissioners and the Secretariat should be apprised of when corrnents may be expected.
DISTRIBtITION Comissioners Comission Staff Offices Secretariat
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ENCLOSURE 1 4
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,45'i'3'I s UNITED STATES OF AMERICA
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6 NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING APPEAL BOARD
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Alan S. Rosenthal, Chairman
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Dr. John H. Buck
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Thomas S. Moore
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In the Matter of
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NORTHERN INDIANA PUBLIC SERVICE COMPANY )
Docket No. 50-367
)
(Bailly Generating Station, Nuclear 1)
)
(Construction Permit
)
Extension)
Ms. Diane B. Cohn, Washington, D. C.
(with whom Mr. William B.
Schultz, Washington, D.
C., was on the brief), for the petitioners, City of Gary, Indians, et al.
Mr. William H. Eichhorn, Har:nond, Indiana (with whom Mr. Maurice Axelrad, Ms. Kathleen H. Shea and Mr. Steven P.
Frantz, Washington, D.
C.,
were on the brief), for the applicant, Northern Indiana Public Service Company.
Mr. Robert J. Vollen, Chicago, Illinois (with whom Ms. Jane M. Whicher and Messrs. Edward W.
Osann, Jr.,
anc Robert L.
Graham, Chicago, Illinois, were on the brief), f or the inter-venors, Porter County Chapter of the Izaak Walton League of America, Inc., et al.
Mr. Steven C. Goldberg for the Nuclear Regulatory Commission staf f.
Dr. George Schultz, Michigan City, Indiana, filed a brief as petitioner pro se.
Attorney General of Illinois Tyrone C. Fahner and Assistant Attorneys General Susan N. Sekuler and Mary Jo Murray, Chicago, Illinois, filed a brief on behalf of the State of Illinois.
DECISION Novembe'r 20, 1980 (ALAB-619)
S ii r
1 I.
On May 1, 1974, following the rendition of a Licensing Board initial decision authorizing him to do so,1/
the Direc-
/
tor of Regulation of the then Atomic Energy Commission 2 is-sued a permit (CPPR-104 ) for the construction of the Bailly j
Generating Station, Nuclear 1.
As required by both Section i
185 of the Atonic Energy Act, 42 U.S.C. 2235, and the Commis-sion's regulations,10 CFR 50.55 (a), the permit specified, the date by which construction had to be completed.
inter alia, 1
That date was Septe=ber 1, 1979.
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The appellate review of the initial decision was exhaustive.
In ALAB-224, f
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8 AEC 244, rehearing denied, ALAB-227, 8 AEC 416 (1974), we af firmed the decision.
On judicial review, ALAB-224 was set aside on the ground that it had mis-applied the Commission's site acceptability regulations concerned with population density (which are contained in 10 CFR Part 100).
Porter County Chapter of the_
Izaak Walton League _ v. AEC, 515 F.2d 513 (7th Cir.
The Supreme Court summarily reversed that de-1975).
termination and remanded the cause to the Seventh Cir-Northern cult for the consideration of other issues.
Indiana Public Service Co_. v. Walton League, 4 23 U.S.
Thereafter, the court of appeals affirmed 12 (1975).
ALAB-224.
533 F.2d 1011, certiorari denied, 429 U.S.
945 (1976).
Although over the years there have been a number of other adjudicatory rulings pertaining to the Bailly l
facility, none is of present relevance.
The licensing functions of the Atomic Energy Commission 2/
were transferred to the Nuclear Regulatory Commission
~
effective January 19, 1975.
When used in connection with events transpiring af ter that date, the term "Com-mission" has reference to the NRC.
M Section 185 of the Act further provides that, should con-struction of a nuclear f acility not be completed by the pre-9 scribed date, "the construction perrit shall expire, and all rights thereunder be forfeited, unless upon good cause shown, the Commission extends the completion date" (emphasis supplied).
This proviso, as well, has been carried over into the regula-tions.
Section 50. 55 (b) states:
If the proposed construction or modification of the f acility is not completed by the latest completion date, the permit shall expire and all rights thereunder shall be forfeited:
Pro-vided, however, That upon good cause shown the Commission will extend the completion date for a reasonable period of time.
The Commission will recognize, among other things, develop-mental problems attributable to the experi-mental nature of the facility or fire, flood, explosi an, s trike, sabotage, domestic violence, enemy action, an act of the elements, and other acts beyond the control of the permit holder, as a basis for extending the completion date.
The Bailly f acility remains today -- some six and one-half years after issuance of the permit -- in the very incipient stages of construction (less than 1% completed).
In recognition of the slow progress of the work, on February 7,1979 the permit holder (Northern Indiana Public Service Company, hereinaf ter
" applic ant") filed an application for an amendment to the permit which would extend the completion date to September 1,1985.
The reasons assigned for the inability to complete construction
on schedule were essentially these:
(1) the permit had been and issued several months later than initially anticipated; (2) it had proved necessary to halt construction activities at t
various times as a result of a series of unforeseen intervening I
events. 3/
These reasons were said to constitute the requisite I
good cause for extending the completion date.
i On August 31, 1979, the applicant altered its request to ask that the completion date be extended for yet another 27 months -- to Decerber 1, 1987.
In justification, it pointed to certain regulatory delays and projected regulatory review schedules which assertedly might still furdber impede the progress of the construction work.
i On November 30, 1979, a notice of opportunity for hearing on the sought permit extension was published.
In response to the notice, a number of petitions for leave to intervene and requests for hearing were filed.
Among them were those submitted (1) jointly by the City of Gary, Indiana, a labor union and three organizations (hereinaf ter, the
" Gary petitioners") ; and (2) by George Schult=.
J/
Among those events were a judicially imposed stay (which was in effect for over two years) and the controversy over the design of the foundation pilings for the f acil-ity.
i indicated in Both the Gary petitioners and Dr. Schult:
their papers below that they proposed to ' litigate the same E
the suitability of the Bailly site from the single issue:
standpoint ok the feasibility of providing protection to per-sons in the general vicinity should there be an accident dur-l i
ing plant operation. 4 /
Opposing the grant of the two peti-I tions, the applicant and the staff insisted, inter alia, that i
site suitability questions were beyond the permissible scope
~
of a construction permit extension proceeding. 5./
Both the i
As formulated by the Gary petitioners in a February 26, l
_4 /.
l 1980 filing:
Whether realistic evacuation and emergency plans can be implemented to adequately pro-r tect the populations surrounding the proposed site of the Bailly One Nuclear Generating Station in the event of a nuclear accident.
Dr. Schultz, who is employed as a clinical psychologist at the Indiana State Prison in Michigan City (said to be i
located within ten miles of the Bailly site), is princi-pally concerned regarding the alleged absence of any workable plan for the emergency evacuation of the 1600 inmates of that institution.
- See, e.c., his filings of l
December 10, 1979 and February 25, TFF6 Under the Commission's Rules of Practice, a petitioner 4
5/
l for intervention must advance at least one acceptable contention.
10 CFR 2.714 (b), codifying, e.g.,
- Missis, sippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424 (1973), and l
cases there cited.
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. staff and the applicant relied upon Indiana and Michigan Elec-tric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), ALAS-l 129, 6 AEC 414 (1973), for the proposition that a ' safety or environmental issue may be raised in such a proceeding only if, i
t unlike here, that issue is associated with the reasons assigned by the applicant for the delay in completing construction.
In addition, both of these parties challenged the petitioners' t
standing to intervene. 6_/
i In an unpublished order entered on August 7, 1980, the Licensing Board denied the two petitions.
Although finding I
that Sa petitioners had the requisite standing to intervene, i
the Board determined that their site suitability contentions were not within the reach of this proceeding.
The basis for this conclusion was not agreement with the applicant's and the staf f's reading of the Cook decision, ALA3-129, supra; indeed, the Board at least intimated (order, pp. 24-29) a view that i
6/
As a municipality, the City of Gary (albeit neither j
the other subscribers to its petition nor Dr. Schultz)
~~
might have sought to participate in the proceeding in a non-party capacity.
The City ex-l plicitly eschewed the opportunity to do so, electing to seek intervention solely under the provisions of 10 CFR 2.714 (a).
Even if a governmental body, one seeking to acquire party status pursuant to the terms of Section 2.714 (a) must comply with the interest and contentions requirements embodied in that Section.
See Project Management Corp. (Clinch River Breeder i
Reactor Plant), ALAB-354, 4 NRC 383, 392-93 (1976).
5 k
. in appropriate circumstances it might consider issues unrelated to the reasons given for the construction delay.
Rather, as the Board saw it (order, p. 40), "[t]o the extent that allega-tions are made regarding site unsuitability because of the inabil-ity to devise satisfactory evacuation plans, the Commission has taken it upon itself to consider all reactors under construction in areas of high population density, which removes this issue from consideration in this proceeding".1/
7/
By way of elaboration, the Board had this to say (order, pp. 31-32) :
- Congress and the Commission have indi-
- cated their desire not to have new siting requirements applied to f acilities authorized before a certain date, except by the Conads-sion on a case-by-case basis:
Public Law 96-295 (June 30, 1980), which authorizes the l
N.R.C.'s appropriations for fiscal year 1980 and directs the manner in which they can be spent, provides in Section 108 that regula-i tions establishing demographic requirements for siting promulgated under the authorization shall not apply to any f acility for which ap-plication for a construction permit was made on or before October 1, 1979; the Cormission's May 30, 1980 Order in Consolidated Edison Company of New York, Inc. (Indian Point, Unit No. 2) and Power Authority of the State of New York (Indian Point, Unit 3), Docket Nos. 50-247 and 50-286, and its advance notice of rule-making on the revision of reactor siting cri-teria, entitled " Modification of the Policy and Regulatory Practice Governing the Siting of Nuclear Power Reactors", dated July 23, 1980, 45 Fed. Reg. 50350 (July 29,1980), direct the Staff to review facilities situated in areas of high population density that already have construction permits, and submit a report to 1
the Commission to be considered in the Commis-sion's_ case-by-case determination on each site.
-g-The Gary petitioners and Dr. Schultz appeal this ruling under 10 CFR 2.714a.
Their appeals are supported by inter-County Chapter of the Izaak Walton League of
~
venors Porter America, et al. and the State of Illinois.
The applicant and the staff urge affirmance.
For its part, the applicant not only endorses the Licensing Board's ruling on the petitioners' contentions but, in addition, reasserts its standing argument below.- /
II.
The applicant's insistence that the petitioners lack standing to intervene rests on the premise that they do not possess an interest which may be affected by the outcome of this proceeding.
See Section 189a of the Atomic Energy Act, 42 U.S.C. 2239 (a) ; Section 2.714 (a) of the Rules of Practice, 10 CFR 2.714 (a).
This premise in turn is bottomed upon the applicant's concept of the essential nature of a construction permit extension proceeding.
We are told that the "le]xten-sion of a construction permit is not an authorization of con-struction or operation".
Brief, p. 20.
Accordingly, " alleged It is less clear whether the staff likewise is chal-8/
lenging the Licensing Board's resolution of the stand-ing question.
See p. 6 of its brief.
t t
. injuries resulting from construction or operation are not in-t juries resulting from the extension proceeding" and therefore "do not constitute adequate grounds" for standing to inter-Vene.
Id. at 21.
Rather, so the argument goes, standing "must be predicated upon a showing that the extension of con-i struction will produce an additional or incremental injury beyond that previously authorized by the construction permit".
No such claim, of course, has been made by these peti-Ibid.
tieners; as reflected by their respective contentions, their concern relates to the possible impact of an accident during plant operation upon the health and safety of themselves or those whom they represent.
If the applicant's premise is right, it would appear to follow that there would not be many, if any, persons resident in the general area of a nuclear f acility under construction who could obtain intervention in a permit extension proceed-ing such as the one at bar.
The applicant provides no examples of possible " additional or incremental injury beyond that au-thorized by the construction permit" which might flow from the And i
extension of the completion date specified in the permit.
very few come readily to mind. 9 /
Thus, what the applicant's i
Offhand, we can think of only one:
the enlargement of 9/
the time interval during which the surrounding commu-
~~
nity must endure the transitory environmental and socio-These economic effects of the construction work itself.
effects are, however, generally of relatively little significance.
k.
. position comes down to is that the notice of opportunity for hearing amounted to a tender of public participational rights on terms which almost no indivi?. cal could meet.
We should, of course, be rest cautious in treating Com-mission notices (whether issued by the Commission itself or its delegate) as being, in practical effect, illusory.
- And, here, there is no occasion to do so.
For it is plain upon analysis that at least one of the links in the applicant's chain of reasoning is fatally flawed.
While it may be true that, strictly speaking, "the ex-tension of a construction permit is not an authorization of construction or operation", it is equally true thst, without the extension, the plant can be neither completed nor operated.
Once again, as a matter of both statute and regulation, unless the extension is obtained the permit will. expire as a matter of law and "all rights thereunder be forfeited".
See p. 3, It therefore blinks reality to suggest that the supra.
extension proceeding is entirely divorced from the authoriza-tion of construction activities and eventual plant operation; to the contrary, the outcome of the proceeding will have a significant, and perhaps crucial, bearing upon whether the plant will ever be placed in operation.
This being so, it
, - - ~ ~. -.
. scarcely can be gainsaid that that outcome comes within the sphere of the cognizable interest of those persons who, be-cause they reside near the f acility site, had the requisite standing to intervene in the construction permit proceeding (and will have similar standing with regard to any eventual operating license proceeding).
That is not to say that these petitioners necessarily
~
are entitled to litigate in a permit extension proceeding (from the question of the suitability of the facility site the standpoint of feasibility of emergency protective mea-sures or otherwise).
Whether a petitioner for intervention has a cognizable interest in the outcome of a proceeding and whether a particular issue is litigable in that proceeding are quite discrete questions which often will require dif-ferent answers.bS!
We therefore now turn to examine the There have been numerous NRC licensing proceedings in 10/
which a petitioner for intervention has been found to have satisfied the interest requirement of Section of the Rules of Practice and yet been denied
- 2. 714 (a) intervention because none of the contentions set forth in the petition was deered litigable in the proceed-ing.
A very recent example is Commonwealth Edison Co.
(Carroll County Site), ALAB-601, 12 NRC (July 29, 1980).
In that early site review proceeding, two in-dividuals and an organization filed a joint interven-tion petition seeking to raise certain issues having
~
As to nothing to do with the suitability of the site..
there was one of the individuals and the organization, l
no dispute that a sufficient interest in the outcome (FOOT!iOTE CONTINUED ON NEXT PAGE) l
. merits of the competing positions of the parties on the liti-gability question.
III.
in determining whether it is empow-
"It is settled that, a licensing board must ered to entertain a particular issue, respect the terms of the notice of hearing published by the Commonwealth Commission for the proceeding in question".
(Carroll County Site), AIAB-601,12 NRC _,
Edison Co.
(July 29,1980), and cases there cited.
The threshold ques-tion thus is whether the notice of opportunity for hearing which triggered this construction permit extension proceeding clothed the Board below with the authority to consider the site suitability issue which the petitioners have sought to Only if that question is answered af firmatively, need raise.
we then move to decide whether the Licensing Board correctly determined that developments subsequent to the issuance of the notice reflect a Commission purpose to exclude petitioners' issue from the proceeding.
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 1_0/
Nonetheless, we of the proceeding had been alleged.
affirmed the denial of the petition even with respect to them on the ground that all of their contentions were beyond the permissible scope of an early site re-view proceeding (which, we determined, is confined to site suitability questions).
)
1 The notice of opportunity for hearing (see p.
4, supra) stated that what was to be decided was "whether, pursuant to 10 CFR 50.55 (b), good cause has been shown for extension of the completion date for [the Bailly construction permit) for a reasonable period of time, i.e.,
- * - whether, pursuant to 10 CFR 50.55 (b), the causes put forward by the (applicant) are among those which the Commission will recognize as bases for extending the completion date".
If interpreted most literally, this language might be taker. as precluding the consideration of anything other than the adequacy of the asserted reasons why the plant was not built on schedule -- measured by the examples of sufficient explanations set forth in Section 50.55 (b).
See p.
3, supra.
But such a narrow reading is permissible only if it does not produce an inconsistency between the notice and governing e
As earlier seen, the re-statutory and regulatory provisions.
that " good cause" be found for a construction permit quirement extension is rooted in Section 185 of the Atomic Energy Act and the Commission's implerenting regulation,10 CFR 50.55(b).
What constitute the ingredients of the " good cause" determination
-- i.e., what are the permissible subjects of inquiry in a pro-ceeding instituted for the purpose of deciding the existence of " good cause" -- is therefore a matter of legislative command.
. Accordingly, the meaning of this legislative term may not be altered by the expedient of a hearing notice; and the issuer of such a notice must be presured to intend that it be read in the light of any previous interpretation of Sections 185 and 50.55 (b).31!
As all of the parties to this proceeding seem to ac-A.
the single prior adjudicatory decision explicitly knowledge, the notice was issued by L.S. R'uben-In this instance, 11/. stein, as Acting Chief of Light Water Reactors Branch 4
~~
Office of Nuclear in the Division of Project Management, Reactor Regulation.
At our request, the staff supplied us with what it deemed to be the source of Mr. Ruben-See stein's delegated authority to issue the notice.
27, 1980 letter to the Secretary to this its October We thereupon invited the other parties to the Board.
appe als to comment on the staf f's letter if they so Several of them accepted the invitation.
des red.
On a close study of the matter, we have concluded that Rubenstein issued the notice within the scope of his Mr.
We are constrained to add, however, that not authority.
all of the links in the chain of delegation are as ex-As a plicit as they both might and should have been.
general proposition, implied (as opposed to specific) delegations of authority to take certain action invite If the end result should be a nullifica-controversy.
(and unnecessary) prejudice tion of action taken, severe to the interests of those af fected thereby may result.
For these reasons, we strongly urge an immediate and careful review of all outstanding delegations of author-ity within the staf f to insure that they leave no room for reasonable doubt respecting who has been vested with what powers.
t
. dealing with the outer boundaries of the " good cause" inquiry That case came to us on an appeal is Cook, ALAB-129, supra.
from an initial decision of the Licensing Board which deter-mined that " good cause" had been established for the extension of a construction permit.
The appellants (intervenors in the proceeding) complained of the f ailure of the Board below to have considered anything other than the reasons which had been given for the delay in the completion of construction.
In this connection, they insisted that the Board should have al-lowed them to explore, inter alia, whether certain design f
changes made by the applicant would pose a threat to the public health and safety or occasion an adverse environmental impact.
(Those design changes were among the causes assigned by the applicant for the delay.)
Characterizing the issue before us as being whether "the Licensing Board [had) correctly delineated the scope of its in-quiry",12/ we looked first to the terms and legislative history of Section 185 of the Act in search of an answer.
That search proved in vain; as then did our scrutiny of both Section 50.55(b) of the Commission's regulations and the notice of opportun-ity for hearing.
This prompted the conclusion that the " ques-tion of the precise content of a Section 185 ' good cause' in-quiry is entirely res nova".
ALAB-129, 6 AEC at 418-20.
l/
6 AEC at 416.
l
Proceeding on that basis, we undertook to consider the For their part, the widely divergent views of the parties.
applicant and the staff had urged that the Licensing Board had correctly held that all that it could decide was whether there was a suf ficient showing of " good cause" for the failure to f
a Board may complete construction on schedule; as they saw it, l
never look beyond the sufficiency of the assigned reasons for On the other hand, the intervenors had maintained the delay.
tha.t the " good cause" inquiry must embrace as well every safety or environmental issue which the need for the extension might suggest.
Id. at 418-20.
We found neither of these lines of argument persuasive.
Each " introduce {d] an unwarranted element of rigidity" into a l
determination which "obviously is dependent upon the facts of r
case" and, accordingly, should be based upon Ithe particular]
the consideration of those f actors succested by "the totality One essen-of the circumstances" confronting the adjudicator.
tial vice of the thesis of the applicant and the staff was that it could lead to a finding that " good cause" existed to extend
't the deadline for plant completion even if one or more of the reasons assigned for the delay " cast serious doubt upon the ability of the applicant to construct a safe facility" -- an unreasonable result.
Id. at 420.
The intervenors' proposal r
i a-5 likewise did not comport with " common sense":
The fundamental purpose of that hearing is, af ter all, not to determine the safety or environmental aspects of the reactor in And, in this particular case, the question.same Licensing Board which conducted this hearing is on the threshold of commencing the hearing which will encompass both the Appendix D construction permit environmental review and the matter of the issuance of fa-Especially since cility operating licenses.
intervenors will be a full participant in that hearing, it is not readily apparent why addressed to whether a " good cause" hearing 4
i a construction permit should be extended --
must necessarily reach issues which can be there considered and decided.13/
I Ibid.
Where this led was to the determination that the intervenors could litigate only those safety or environmental issues which l
arose from the reasons assigned in justification of the both (1)
(2) could not, request for a construction permit extension; and consistent with the protection of the interests of intervenors or i
" appropriately abide the event of the en-the public interest, Ibid.
vironmental review - facility operating license hearing".
Applying this standard, we went on to decide that each of the As early noted in the Cook decision, the two-unit facil-ity had received its construction permits in 1969 with-13/
Under later-promulgated
~~
out an environmental review.
Commission regulations, it was slated to receive such a review in conjunction with the operating license proceed-ing.
See 6 AEC at 414-15.
b h
I
_ is -
issues which the intervenors had sought to inject into the pro-Id.
ceeding had been properly excluded by the Licensing Board.
at 420-22.
Although all of the parties to the appeals at bar look B.
to the Cook decision for guidance, they derive quite different messages from it.
The applicant and the staff take what was there said 1.
(in the applicant's words, Br. pp. 8-9) " clearly indicat[ing]
as that any consideration of safetIy in an extension proceeding is limited to the ' reasons assigned for extension'".
Both of these parties also insist that any other conclusion would undermine (construction permit and operating the two-step licensing process license) established by Section 185 of the Act.
To quote the applicant once again (Br. p. 11), "[t]he Atomic Energy Act does not require that every safety-related issue be resolved prior to See Power Resources Develop-the operating license proceeding.
367 U.S.
ment Co. v. International Union of Electrical Workers,
[D]evelopments which occur after the issuance 396 (1961),
of the construction permit are analyzed at the operating license stage and there is no requirement that an adjudicatory proceed-ing consider these issues as they arise".
Beyond those considerations, our attention is directed to the Director of Nuclear the fact that, pursuant to 10 CFR 2.206,
i
+ ^
1 Reactor Regulation may be asked at any time to institute under 10 CFR 2.202 a show-cause proceeding looking to the possible suspension or revocation of a construction permit.
modification, the staff advises us that the Director now In this connection, has before him such a request which was founded on the very I
The claim of site unsuitability which petitioners press here.
request was initially filed by the State of Illinois; it has We were told at now been joined in by the Gary petitioners.
oral argument by staff counsel that the Director will act on i
45).
it by the end of this year (App. Tr.
and those rupporting their position, 2.
The petitioners, focus their spotlight upon the language in Cook to the ef fect that the f actors to be taken into account in making a " good cause" determination should be influenced by the " totality of the circumstances involved" and considerations of the protection of public and private interests.
See pp. 16-17, supra.
As they see it, the pertinent circumstances of the present case are not at all analogous to those which were before us in t
Cook and that a "corron sense" approach here precludes the ex-clusion of their contentions simply because unrelated to the In reasons assigned for the delay in construction completion.
unlike the Cook intervenors, this regard, they emphasize that, they are seeking to raise a serious site suitability issue in
the context of a f acility as to which actual construction has r
barely begun.
They assert (Gary petitioners' Br. p. 14)
"[ijt simply is contrary to all notions of protection of that
- that siting and emergency the public interest to argue *
- planning factors at Bailly should be fully considered only If lef t to the operat-af ter the entire plant has been built".
those factors will never ing 3 ansing proceeding, they predict, "after full resources are committed receive proper attention, the Bailly plant to. finishing construction at the present site, will operate regardless of the risk to surrounding populations".
t Ibid.
Nor do petitioners perceive the Section 2.206 remedy to be an adequate substitute for the scrutiny of their site suita-bility issue in this proceeding.
This is principally because
~
that Section leaves it to the discretion of the Director whether to grant or deny a request that a show-cause proceed-ing be instituted.
Further, although "the Commission ray on I
its own motion review" a decision which denies such a request "to determine if the Director has abused his discretion", no
-?tition asking that it undertake review will be entertained.
10 OFR 2.206(c).
i 1
l 1
l
i i
We can agree with the petitioners up to a point.
C. 1.
To begin with, this case does differ from Cook in the re-In Cook, as we have seen, the issues spects which they note.
sought to be injected into the permit extension proceeding had nothing at all to do with the suitability of the site for a nuclear facility.
Here, in sharp contrast, petitioners' con-tentions not merely are addressed to site suitability but, as well, are raised in the setting of in essentially unbuilt plant.
that the matter of the suitability It is true, of course, of the Bailly site from a population density standpoint was litigated extensively in the construction permit proceeding, and that its resolution in favor of the applicant ultimately survived judicial review which reached the Supreme Court level.
l See fn.
1, supra.
The petitioners insist, however, that more Anto doubt the correctness of the recent developments have put result in that proceeding.
Although that rey or nay not be Missis-for present purposes we must assume that it is.
- true, sippi Power and Light Co. (Grand Gulf Nuclear Station, Units t
1 and 2), ALAB-130, 6 AEC 423, 426 (1973).
This being so, we are unimpressed with the argument of the applicant and the staf f that petitioners can appropriately be told to withhold their site suitability contentions until
. It does no disservice the operating license stage has arrived.
to the concept of a two-step licensing process to conclude that, in circumstances such as those at bar, that suggestion offends Manifestly, if there currently exists substantial cause reason.
to believe that the Bailly site is unacceptable, now is the time to explore the matter further -- rather than years hence when, the f a-following a substantial additional monetary investment, cility is nearing completion at that site.
In short, were the operating license proceeding the only alternative vehicle for the airing of petitioners' concerns, we would encounter great dif ficulty in erecting a barrier, on the strength of anything said in Cook, to the exploration of those concerns in the present proceeding.
To be sure, petitioners do not satisfy the precise test employed in that decision; to re-their site suitability contentions are not rooted in the
- peat, reasons assigned for the delay in completing construction.
But that test was tailored to the particular f acts of that case.
Neither in terms nor by necessary implication was it offered as an inflexible mold for passing judgment on the litigability in a permit extension proceeding of every variety of contention in every conceivable setting.
Indeed, that it was not intended to have any such effect is indicated by the importance we attached to
looking at the " totality of the circumstances" and invoking a
" common sense" approach in determining the scope of the " good See 6 AEC at 620.
cause" inquiry in the specific case.
2.
At this juncture, however, our agreement with the petitioners comes to an end.
In our view, the eventual oper-ating license proceeding cannot be said to provide the only other viable forum for the ventilation of petitioners' issue.
To the contrary, Section 2.206 of the Rules of Practice pro-vides an explicit, adequate and immediately available remedy to those who believe there to be newly arising cause why plant construction should be halted well before the operating license l
stage is reached.
We are equally persuaded that, where that cause has no discernible relationship to any other pending pro-ceeding involving the same f acility (e.g., one concerned with permit extension), the Section 2.206 remedy must be regarded as exclusive, In authorizing "any person" to file a request for the a.
institution of a show-cause proceeding under Section 2.202 "to modify, suspend, or revoke a license or for such other action as may be proper", Section 2.206 does not place any limitations upon either the timing of the request or the grounds which may be assigned for seeking such relief.
And, although at one time 1
l
the institution of a show-cause proceeding had to be predicated upon alleged license violations,$d! Section 2.202 was broadened in 1963.15[
As it reads today, the Section permits the Director of Nuclear Reactor Regulation to base the proceeding upon any "f acts deemed to be suf ficient grounds for the proposed action" license modification, suspension or revocation).
(e.g.,
Thus, as no one appears to dispute, the petitioners were authorized by Section 2.206 to request, and the Director is authorized by Section 2.202 to initiate, a show-cause proceed-ing to examine the very site suitability matter which is sought And it is to be injected into the permit extension proceeding.
I equally manifest that, should a hearing be ordered on such a the participational rights of the parties to it will
- request, be no different than in any other type of adjudicatory proceed-ing (including that now before us).
The same may be said with it is regard to the allocation of the burden of persuasion:
settled "that the Atomic Energy Act intends the party seeking to build or operate a nuclear reactor to bear the burden of proof in any Commission proceeding bearing on its application to do so, including a 'show cause' proceeding".
Consumers 14/
See 27 Fed. Reg. 377, 380 (January 13, 1962).
15/
See 28 Fed. Reg. 10151, 10153 (September 17, 1963).
i
. l Power Co. (Midland Plant, Units 1 and 2), ALAB-315, 3 NRC 101, 105 (1976).
As previously noted (p. 19, supra), the Director will which both act shortly upon the pending Section 2.206 request, has the Gary petitioners' endorsement and parallels their site suitability contention.
In these circumstances, it obviously is neither appropriate nor possible for us to forecast what re-sult will obtain; needless to say,"that will depend upon the Director's weighing of all relevant factors in light of informa-tion in his possession which is not within our ken.
We are pre-l l
pared, however, to record our confidence that, whatever the out-it will be preceded by a careful and responsible evaluation
- come, of the claims underlying the request.
The petitioners have sup-plied no basis to presume that the Director is any less sensitive than are they to the undesirability of allowing construction of a nuclear facility to proceed on a site in the teeth of substan-tial cause to believe that that site -- sooner or later -- will have to be declared unsuitable from a safety standpoint.
Should the Director find the Section 2.206 request lacking in merit, he will be obliged to set forth in writing his reasons for that finding.
Section 2.206(b).
As petitioners emphasize, if dissatisfied with those reasons they will have to rely
\\
~.
r k
- Although i
upon the Commission to undertake review sua sponte.
the Co= mission might have entitled those adversely affected by a Director's decision either to take an appeal from it or seek
~
discretionary review, it chose to do neither.
The compelled after mature consideration,' the Commission inference is that, concluded that in circumstances where (as here) a person deems there to be warrant for taking action against a construction permit or other license, he should be given the opportunity to press his claim before the Director without further avenues of redress as a matter of right.
Although petitioners may not concur in that conclusion, it must be respected.
Moreover, contrary to their seeming belief, we know of no authority -- and petitioners point to none -- for the proposition that the sufficiency of an avail-able remedy rests upon the extent, if any, to which the de-termination of the initial decisionmaker is subject to further challenge on a higher level.
It might be added in this connection that, in order to pass an informed judgment on whether warrant exists to review a particular denial of a Section 2.206 request on its own mo-tion, the Commission must necessarily examine the grounds assigned by the Director -- and, in most cases at least, the
4
. 16/
underlying papers as well.
We scarcely would be justified in presuming that this task is not faithfully discharged.
Purther, there is every reason to think that, were the Director to turn down the Section 2.206 request here, that action would receive especially close scrutiny.
The Bailly facility has, after C 1, been the subject of an exceptional amount of atten-tion over the years -- much of which has been directed to the suitability of the site given the' population density of the surrounding area.
This is not to say that the Commission would -- or indeed should -- overturn a Director's denial here.
Once again, whether petitioners' claims are colorable enough to justify adjudication in a formal proceeding is not a fit subject for our conjecture.
All that we suggest is that those claims undoubtedly will receive the measure of consideration I
due them in the event that the Director's action calls upon the Commission to look at the matter itself.
b.
It does not necessarily follow from its availability that the Section 2.206 remedy is invariably exclusive.
In fact, Cook teaches that it is not.
The issues which the intervenors 16/
our understanding of Cannission practice is that such
~~
denials are treated in much the same fashion as are Appeal Board decisions which are before the Commission for possible sua sponte review under 10 CFR 2.786(a) although the standard for undertaking review differs in the two instances.
T
. r there sought to litigate in the permit extension proceeding could equally have been raised by way of a request for a show-cause order.
Yet, that f actor played no part in our decision.
Rather, as previously seen, we took the controlling considera-tion to be whether the then upcoming hearing in the environ-mental review-operating license proceeding was a suitable forum for the ventilation of the intervenors' issues.17/
Once again, however, each of those issues was directly tied to the reasons why construction could not be completed on schedule.
There was consequently no occasion in Cook to address, let alone decide, whether the Section 2.206 remedy is exclusive in circumstances where, as here, the supervening developments alleged to warrant termination of reactor con-struction concededly have nothing whatever to do with the need for the permit extension -- and thus cannot be said to evolve I
naturally from the extension application which is the source of the proceeding.
We have been provided no compelling reason why it is not totally appropriate in such circumstances to leave petitioners' concerns for possible consideration in a show-cause proceeding.
Indeed, that conclusion comports with the " common sense" 17/
The Section 2.206 remedy received but fleeting mention, and then in a quite different context.
See 6 AEC at 420.
I w-
. 1 i
As there observed (see p. 17, approach championed in Cook.
a permit extension proceeding is not convened for the supra),
purpose of conducting an open-ended inquiry into the safety and environmental aspects of reactor construction and opera-tion.
Yet that is precisely what the proceeding would _ become were an open invitation given to those in petitioners' situa-tion to freight it unnecessarily with matters far removed from those events which led to its commencement.18!
4 For the reasons above stated, the denial of the inter-vention petitions of the City of Gary, Indiana, et al. and George Schultz is af firmed.
It is so ORDERID.
FOR THE APPEAL BOARD C.. O u
~\\
C. J(gn Bishop Secretary to the Appeal Board We neither reach nor intimate any opinion regarding the 18/
basis of decision below on the intervention question.
4 j
Nor do we pause to examine whether See p. 7, supra.
the considerations which persuaded the Licensing Board that the petitioners' contentions were not litigable in this proceeding do or do not come into play insofar as the determination of the Section 2.206 request is con-That is for the Director and the Commission to cerned.
It is enough to observe that, if those consid-decide.
erations in and of themselves preclude the present exam-ination of emergency planning in a show-cause proceeding, it would appear almost inevitably to follow that they would likewise bar such examination in this permit exten-sion proceeding.
e W
4 0
9 e
ENCLOSURE 2 A
1 4
?
i i
I f
r a
f i
I.
/- ~
U 4
8/
DOC *ITED UNITED STATES OF AMERICA
,. q g
NUCLEAR REGULATORY COMMISSION
'-3 s7 DR ~ 8191D 0$a efth W44 f
Sud Before the Nuclear Reculatory Commission
- '4
~In the Matter of
)
Docket No. 50-367
)
UORTHERN INDIANA PUBLIC SERVICE
)
(Construction Permit COMPANY
)
Extension)
)
(Bailly Generating Station,
)
Nuclear 1)
)
PETITION FOR REVID4 The City of Gary, Indiana, United Steelworkers of America Local 6787, Save the Dunes Council, the Bailly Alliance and the Critical Mass Energy Project hereby petition for review of the l
November 20, 1980, decision of the Atomic Safety and Licensing Appeal Board, which denied petitioners leave to intervene in the pending construction permit extension proceeding for the Bailly nuclear plant.
Petitioners, representinc individuals who live i
and work near the Bailly site, seek the ooportunity to prove in the extension proceeding that, because of the density of the population i
surrounding the Bailly site, it will be impossible to devise an adequate evacuation plan to protect people from the consequences of-Intheirview,commonsensedicta$esthatthis a nuclear accident.
issue be decided now, since construction on the Bailly. plant has barely begun.
The issue before the ' Apoeal Board was not whether the pe,ti4io' ers n
are right or wrong that the Bailly site is unevacuable.
- Rather, petitioners seek review on the question of whether the Board was
~~
correct that the construction permit could be extended without
i even addressing this issue, and thus that the Licensing Board Because properly denied the petitioners permission to intervene.
the question of whether Bailly is being built in a safe place is a matter significantly affecting the public health and safety and because this case presents the important legal question of i
how the scope of an extension proceeding is to be defined, the Commission should grant review.
Proceedinos and Decision Below l
The Bailly nuclear plant, fo'r which a construction permit was granted on May 1, 1974, remains today only 1% complete.
Decision at 3.
As a result, on February 7, 1979, the permit
- holder, Northern Indiana Public Service Company ("NIPSCO"), filed an application for an amendment to the permit which would extend l
i 1/
the completion date to September 1, 1985.
On November 30, j
I 1979, a notice of opportunity for hearing on the requested per-mit extension was published, 44 Fed. Reg. 69061, and the City of Gary, el al. filed timely petitions for leave to intervene.
The Gary petitioners sought to litigate only one issue in the extension proceeding -- whether Bailly remains a suitable site for a nuclear reactor in view of significant doubts as to whether realistic evacuation and emergency plans can be imple-mented for the surrounding areas.
These doubts arise from the density of the population surrounding the Bailly site which poses unique barriers to evacuation planning, including the 31, 1979, NIPSCO requested an additional two years On August 1/
to December 1, 1987, within which to' complete construction,
- time, citing further delays..
1
fact that the plant is: 800 feet from a recreational park attended by up to 40,000 people per day; 700 feet from a steel plant which employs a total of approximately 8,500 workers; and approximately 6 miles from the city limits of Gary, Indiana, with a population of approximately 160,000 people.
These factors, in combination with data indicating that the resident and employ.-
ment population within a ten mile radius total nearly 170,000 people, give Bailly a unique distinction: it is the only nuclear plant operating or under construction that failed to meet all six siting criteria recommended in the Report of the Siting 2/
Policy Task Force (NUREG 0625).
Petitioners' principal contention is that these siting characteristics have acquired new significance since the accident at Three Mile Island.
Prior to the accident, and specifically at the time the Commission granted the construction permit for Bailly, the Comnission's position was that the chance of an accident requiring evacuation was so small that the possibility of such an accident need not be considered in a construction permit or operating license proceeding. -3/ In addition to the combination 2/
The population estinate is derived from a draft consultant's l
to the Federal Emergency Management Agency on evacuation report time estimates for Bailly.
3/
As a result of TMI, the Commission has adopted final rules which require workable evacuation plans within an Emergency Planning Zone of 10 miles as a condition for operation of a plant, and which i
also require consideration of evacuation capability within a 10 mile EPZ at the construction permit stage.
45 T.R. 55402 (Aug. 19, 1980).
In contrast to this approach, the construction permit for l
Bailly was granted on the basis of consideration only of a 188 meter ex1cusion area (the smallest of any site in the country) and a 2,400 meter low population zone.
Since TMI, the Commission has also issued an interim statement of policy requiring that considerat:
be given to the environmental effects of Class 9 accidents in weighi:
alternative sites under the National Environmental Policy Act.
(footnote continued)
i e
l of these factors, petitioners pointed out that the very nature of the issue raised -- the fundamental question of where a plant i
should or should not be built -- cannot, under any reasonable approach, be deferred until af ter the plant is already constructed.
l l
The Appeal Board nevertheless ruled that petitioners' con-tention was beyond the scope of this proceeding, and thus that i
intervention was properly denied.
In so ruling, the Appeal Board assumed, as it must, that events which have intervened since the j
construction permit for Bailly wa,s granted have "put in doubt the correctness of the result in that proceeding."
Decision at 21.
i In addition, the Board stated that it was " unimpressed with the 1
argument of the applicant and the staff that petitioners can appropriately be told to withhold their site suitability con- -
l tentions until the operating stage has arrived," concluding j
l i
that "if there currently exists substantial cause to believe that the Bailly site is unacceptable, now is the time to explore the matter further -- rather than years hence' shen, following a substantial additional monetary investment, the facility is nearing completion at that site."
Id.
at 21-22.
In then determining whether petitioners' site suitability contention fits within the scope of the inquiry in this extension proceeding, the Appeal Board interpreted the only other decision in which this issue had been addressed as requiring a " common 1
footnote continued:
45 F.R.
40101 (June 13, 1980).
The population density at the Bailly site relative _ to population density at alternative sites was never considered in the initial construction permit proceeding specifically because of the perceived improbability that a Class 9 accident could occur.
See 7 AEC 557 (1974).
i 1 '
I
sense" approach.
The Board emphasized that the factors to be taken into account in finding " good cause" for an extension should be determined by the " totality of the circumstances" in each case.
Id. at 22-23, cuoting Indiana and Michican Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2) ALAB 129, 6 AEC 414 (1973).
Applying that standard, the Board concluded that it would encounter great difficulty in erecting a barrier to the exploration of the evacuation issue in this proceeding if the operating license review were the only alternative vehicle for the airing of the-issues raised.
,Id. at 22.
The Board found, however, that the operating license proceeding was not the only other forum in which petitioners could have their contention heard, concluding that "section 2.206 of the Rules of Practice provides an explicit, adequate and immediately available remedy to those who believe there to be newly arising cause why plant construction should be halted well before the operating license stage is reached."
Id. at 23.
l Despite the limited nature of the 2.206 procedures -- which grant the Director of Nuclear Reactor Regulation the discretion as to I
whether or not to institute a show cause proceeding, with no right of appeal to the Commission by the requesting party -- the Board concluded that, where the safety issue raised is unrelated to the reasons why construction could not be completed on
' schedule, a section 2.206 proceeding is the exclusive forum in 4/
~
which the issue can be raised.
I 4/
Cn June 5, 1980, the City of Gary, et al. joined in the State of Illinois' request for action under section 2.206.
This request is still pending and the City of Gary, et al. most recently supple-19807~ As demonstrated below, mented that request on December 4, however, the availabilitv of an alternative avenue for review cannot decrive retitioners of their right to participate here.
)
l i
Reasons for Granting Review
)
\\:
Section 185 of the Atomic Energy Act creates a mechanism for triggering public scrutiny through hearings at various Section 185 provides that stages of the licensing process.
i if construction of a facility is not completed by a date specified in the construction permit, that " permit shall expire and all rights thereunder be forfeited unless, upon good cause shown, the Commission extends the completion date."
A presumption is thus created whi'ch requires the applicant to make a showing of " good cause" to overcome a statutory bar to completion.
Petitioners do not contend that the scope of a construction permit extension proceeding should be interpreted to require a f ar-ranging inquiry into all safety and environmental aspects of reactor construction which may have arisen since the con-struction permit was granted.
Likewise, the opposite extreme --
a determination of good cause must be limited to the that reasons assigned for the extension -- has been properly rejected by the Appeal Board, both in Cook and in the decision below.
The Appeal Board has instead correctly interpreted section 185 as requiring a " common sense approach" to considering compelling safety issues where an examination in the proceeding is necessary However, there was no basis to protect the public interest.
either in the Atomic Energy Act or in sound policy for the Appeal Board's ultimate conclusion that where there mag be an alternative avenue for addressing such a compelling safety con-cern, the determination of that issue becomes somehow irrelevant,
to the question of whether good cause exists for completing the construction of a plant.
At oral argument, the Chairman of the Appeal Board raised a hypothetical scenario which, we submit, emphasizes the correctness of petitioner's view.
That situation is one where, due to delays in construction, an applicant files a request for a permit extension and, soon thereafter, a Class 11 earthquake l
occurs at the construction site.
Even though the earthquake was not one of the reasons for the delay, it defies common sense to argue that the Commission would have no authority to consider the possibility of a future earthquake in the con-struction permit extension proceeding.
Indeed, as the Chairman of the Appeals Board seemed to suggest at oral argument, under such circunstances there could be no " good cause" for extending l
the permit.
In the context of the Bailly site, the accident at Three Mile Island is an intervening event analogous to the Class 11 o
That accident has altered the Commission's entire a
approach to emergency planning.
After the TMI accident, it seems highly unlikely that the Commission would grant an operating permit to a plant located at a site that could not be evacuated.
f Up to this point, the Appeal Board, and perhaps even l
the Staff, agreed with petitioners' position.
The applicant l
J i
and the Staf f, however, would have the Commission wait until the operating license stage to decide the feasibility of evacuating the Bailly site, cn option which should be rejected
~
for the reasons so skillfully articulated by the Appeal Board.
Although the Appeal Board rejected the Staff's approach, it ruled that petitioners' contention was not within the scope of the construction permit extension proceeding for an altogether dif ferent reason -- namely the possibility that an alternative forum will be available to address the issue (a show cause t
proceeding authorized by 10 C.F.R. S 2.206).
This approach should also be rejected for several reasons.
First, under section 185 of the Atomic Energy Act, the only issue in this proceeding is whether petitioners' contention is relevant to a finding of " good cause."
The Appeal Board has apparently agreed that petitioners' evacuation concerns do raise a compelling safety issue that is relevant to the question of whether good cause exists for completion of the plant, and therefore the Board would have granted intervention if no alternati"2 forum were available.
We submit that, since the only issue presented under section 185 is the scope of the
" good cause" standard, the possibility that an alternative forum may be provided for addressing a safety concern cannot deprive petitioners of their right to raise a relevant inquiry i
in this construction permit extension proceeding.
Moreover, the section 2.206 procedures do not provide an 1
acceptable substitute for review of petitioners' contention in the ongoing extension proceeding.
Under section 2.206, 1
the burden is on petitioners to demonstrate that circumstances warranting the initiation of a show cause proceeding exist the in a proceeding under section 185 of the Atomic Energy Act,
_g.
i
applicant must demonstrate good cause for completion of the f.
plant.
Even more significantly, section 2.206 is a more limited alternative since that section affords the Director of Nuclear Reactor Regulation the discretion to decide whether or not to grant a request that a show-cause proceeding be instituted, with no right for petitioners to seek Commission review of a denial.
10 C.F.R. 5 2.206 (c).
Finally, the Appeal Board's decision seems to be based on the assumption that no party and the appeared to dispute that petitioners could request, I
Director could initiate, a 2.206 proceeding (Decision at 24).
However, on the same day the Board rendered its decision, NIPSCO filed comments with the Director opposing the issuance of an order to show cause on the ground that a section 2.206 proceeding is not appropriate for resolving the issue raised.
CONCLUSION As a result of the Appeal Board's ruling, safety issues which i
are so compelling that they may demonstrate that good cause for completion of a plant does not exist have nevertheless been declared inadmissable in a construction. permit extension Because this ruling has such vast implications proceeding.
for the public health and safety, this decision should not be made in the absence of Commission review.
i lT Respectfully submitted, Diane B. Cohn William B.
Schultz Suite 700 2000 P Street, N.W.
Washington, D.C.
20036 (202) 785-3704 Attorneys for the City of Gary, et al.
December 8, 1980 se
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UNITED STATES OF AMERICA
[
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NUCLEAR REGULATORY COMMISSION U-DEC - 8 Ga0
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In the Matter of
)
Docket No. 50-367
)
NORTEERN INDIANA PUBLIC SERVICE
)
(Construction Permit
)
Extension)
COMPANY
)
(Bailly Generating Station,
)
Nuclear 1)
}
1 CERTIFICATE OF SERVICE I hereby certify, this 8th day of December, 1980, that copies of the City of Gary, el al.'s Petition for Review were served by hand upon those on the following list marked by an asterisk, and by mail, first class and postage prepaid, upon the remainder:
- Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Nuclear. Regulatory Commission Washington, D.C.
20555
- Thomas S. Moore Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Herbert Grossman, Esquire U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Glenn '. Bright O
U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- Richard F.
Cole 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
- Steven Goldberg, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
,20555 Dr. George Schultz 807 East Coolspring Michigan City, Indiana 46360 Robert J. Vollen, Esquire c/o BPI 109 North Dearborn Street Suite 1300 t
Chicago, Illinois 60602 i
i 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 William J. Eichorn, Esquire r
5243 Hohman Avenue i
Hammond, Indiana 46320 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana 46312 Tyrone C.
Fahner Attorney General, State of Illinois Environmental Control Division 188 West Randolph Street Suite 1215 Chicago, Illinois 60601
Richard J. Robbins, Esquire e;;;.
53 West Jackson Boulevard Chicago, Illinois 60604 Mr. George Grabowski Ms. Anna Grabowski 7413 W.
13 6 Lane Cedar Lake, Indiana 46303 Stephen Laudig, Esquire 21010 Cumberland Road Noblesville, Indiana 46060
- Kathleen Shea, Esquire Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.
Washington, D.C.
,20035 3
Robert W. Hammesfahr, Esquire 200 East Randolph Street I
Suite 7300 Chicago, Illinois 60601
- Director of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C.
205555
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission i
Washington, D.C.
20555
- John Ahearne, Chairman Nuclear Regulatory Commission Washington, D.C.
20555
- Richard Kennedy, Commissioner Nuclear Regulatory Commission Washington, D.C.
20555
- Peter Bradford, Commissioner Nuclear Regulatory Commission Washington, D.C.
20555
- Joseph Hendrie, Commissioner Nuclear Regulatory Commission Washington, D.C.
20555
- Victor Gilinsky, Commissioner Nuclear Regulatory Commission Washington, D.C.
20555 j
c_..
O he Diane B.
Colm Suite 700 2000 P Street, N.W.
Washington, D.C.
20036 (202) 785-3704 Attorney for the City of Gary, et al.
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ENCLOSURE 3 9
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UNITED STATES OF A'iERICA NUCLEAR REGULATORY COMMISSION 8
Y Before the Nuclear Reculatory Commission N
m f
In the Matter of
)
Docket No. 50-367
)
NORTHERN INDIANA PUBLIC SERVICE
)
(Construction Permit CO:iPANY
)
Extension)
)
(Bailly Generating Station,
)
December 18, 1980 Nuclear 1)
)
4 RESPONSE IN OPPOSITION TO PETITION FOR REVIEW Northern Indiana Public Service Company (hereinaf ter, NIPSCO) hereby responds to the Petition for Review (herein-after, Petition) filed by the City of Gary, Indiana, United Steelworkers of America Local 6787, Save the Dunes Council, the Bailly Alliance, and the Critical Mass Energy Project (hereinafter, petitioners).
Petitioners seek review of the l
November 20, 1980, decision of the Atomic Safety and Licensing i
I Appeal Board / denying petitioners leave to intervene in the pending construction permit extension proceeding for Bailly Generating Station, Nuclear 1.
The petition should be re-jected.
Petitioners sought to litigate a single issue: whether it is possible to develop "an adequate evacuation plan to
- /
Order of the Atomic Safety and Licensing Appeal Board, ALAB-619, November 20, 1980 (hereinaf ter, Appeal Board Order).
S
protect people from the consequences of a nuclear accident" at the Bailly site.
In our view, that contention is beyond r
the scope of this proceeding to consider extension of the construction permit / and the contention was correctly held to be inadmissible by both the Licensing Board anc the Appeal Board.
The Commission has established standards by which to exercise its discretionary authority to review Appeal Board decisions.
The governing regulation, 10 C.F.R. 5 2.786 (b) (4 ),
provides in part:
F A petition for review of matters of law or policy will not ordinarily be granted unless it appears the case involves an important matter that could significantly affect the environment, the public health and safety, or the common defense and se-curity, constitutes an important anti-trust question, involves an important pro-cedural issue, or otherwise raises impor-tant questions of public policy.
We submit that the Petition does not meet any of those standards.
First, excluding emergency planning (or the single aspect thereof upon which petitioners focus--i.e.,
evacuation) from litigation in this proceeding can have no the effect, significant or otherwise, on "the environment, public health and safety, or the common defense and security."
The kinds of accidents for which emergency planning is re-
. quired simply cannot occur while the plant is under construc-i...
- /
See NIPSCO's Brief in Opposition to Appeals (September 15, 1980).
~
3-tion.
Therefore, no deficiency in emergency planning for a plant under construction could threaten harm to the environ-ment, public health and safety, or the common defense and security.
Furthermore, the Commission has established new emergency planning requirements which must be met by appli-cants for and holders of operating licenses and by applicants for construction permits.
It has not established new require-
~
ments which must be satisfied presently by holders of con-struction permits.
Second, petitioners have not alleged that "important antitrust question (s)" or "important procedural issue (s)"
are involved and it is clear that they are not.
Therefore, if any of the standards of 10 C.F.R. 5 2.78 6 (b) (4 ) is to be met, justifying the grant of review, it must be that the matter at issue presents "important questions of public policy."
Petitioners' contention, as characterized by the Appeal i
Board below, encompasses this single issue:
the suitability of the Bailly site from i
the standpoint of the feasibility of pro-viding protection to persons in the gen-eral vicinity should there be an accident during plant operation.
(Appeal Board Order, p. 5. )
In our view, this contention does not raise an important public policy question which would warrant the Commission's granting the Petition for i-Review.
1
The issue of the evacuability of the Bailly site has been fully litigated in the prior construction permit proceeding.
Both the Licensing and Appeal Boards have held the issue inadmissible in the extension proceeding.
The Appeal Board recognized that the matter of the suitability of the Bailly site from a population density standpoint was litigated extensively in the construction permit proceeding, and its resolution in, favor of the ap-plicant ultimately survived judicial re-view which reached the Supreme Court level.*/
Secondly, petitioners seek the opportunity to prove in the extension proceedinc that, because of the density of the population surround-ing the Bailly site, it will be impos-sible to devise an adequate evacuation plan to protect people from the conse-quences of a nuclear accident (emphasis added).
(Petition, p. 1.)
In their view, the site is unsuitable be-cause it is unevacuable.
However, their basic premise is obviously invalid.
It ignores the fact that, under Commission regulations, evacuation is not the only means of protection for the public.
(See 10 C.F. R. Part 50, Appendix E. )
Further-more, Commission regulations do not establish an "evacuability" test for assessing population density.
- /
Appeal Board Order, p.
21.
See also Appeal Board Order,
- p. 2 n.1.
Petitioners' basic argument is that the feasibility of emergency planning should not await reexamination until the consequently, operating license application is considered; they contend that the question should be addressed in the extension proceeding--particularly in view of the alleged change in circumstances effected by the events at Three Mile Island. (Petition, p.3.)
That argument loses its force if there exist means of reexamining the feasibility-of emergency planning prior to the operating license proceeding other than in the extension proceeding.
Clearly such means do exist.
The Conmission has already determined the method by which previously approved sites such as Bailly will be re-assessed in the post-TMI world.
Its Advance Notice of Rule-Revision of Reactor Siting Criteria has clearly es-making:
tablished the vehicle for this reevaluation:
The Commission has directed the staff to review existing sites in order to ex-amine whether additional modifications in operating procedures, design, or. For equipment might be necessary.
plants that have construction permits
. this review would be in the form of a report submitted to the Commission for its consideration in making case-by-case decisions.
(4 5 Fed. Reg. 50,350, 50,351 (198 0). )
Thus, even if it is assumed that the issue raised by petitioners involves an important public policy question, the Commission has already 4
determined an ef f ective means of examining the matter, where appropriate, through the Staff'.
Petitioners have advanced
8 s-es 4 +
no arguments which would justify the adoption by the Commis-sion of another approach to reevaluation of the Bailly site.
There is, therefore, no need to grant.the Petition for Re-view.
The Appeal Board pointed out that another potentially
" viable forum for the ventilation of petitioners' issue" is found in 10 C.F.R. 5 2.206.
(Appeal Board order, p. 23.)
Petitioners argue that a Sectio 6 2.206 proceeding would be an insufficient vehicle for review of their proposed emer-gency planning contention.
(Petition, pp.
5, 8-9.)
The Com-mission need not reach this question in deciding to reject the Petition.
However, we would note that petitioners are incorrect.
The Appeal Board correctly held that Section 2.206 provides "an explicit, adequate and immediately available remedy" for those who claim that a valid basis for halting construction has risen.
(Appeal Board Order, p. 23. )
Peti-tioners complain that there is no right of appeal to the Commission from a Director's refusal to institute a show cause proceeding.
(Petition, p. 5.)
This argument does not as the Appeal Board stated, the help petitioners' cause;
" sufficiency of an available remedy" does not depend upon which the determination of the initial "the extent to decisionmaker is subject to further challenge on a higher level."
(Appeal Board Order, p. 26. )
In any event, judicial review of any adverse determination by the Director can be c,..
sought.
I 7-There is no question concerning petitioner's right to request a Section 2.206 proceeding.
However, the Petition's implication (Petition, p. 9) that the Appeal Board's denial of the intervention petition was based upon an assumption that the pending Section 2.206 requests were unopposed on the merits is incorrect.
Petitioners refer to the following l
Appeal Board statement:
Thus, as no one appears to dispute, the petitioners were authorized by Section 2.206 to request, and the Director is authorized by Section 2'.206 to initiate, a show-cause proceeding to examine the very site suitability matter which is sought to be injected into the permit extension proceeding.*/
Obviously, the Appeal Board did not bace its decision denying intervention on an assumption that the Director would grant the Section 2.206 petitions.
The Board stated expressly:
[I]t obviously is neither appropriate nor possible for us to forecast what result will obtain; needless to say, that will depend upon the Director's weighing of all relevant factors in light of information in his possession which is not within our ken.11/
Although the merits of those pending petitions are not presently before the Commission, we might point out that, in our view, the Director's consideration should result in their denial for a number of reasons.
Reassessing the acceptability of the Bailly site in a show cause proceeding with an adjudi-catory hearing before a Licensing Board makes no sense when 1/
Appeal Board Order, p. 24.
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Appeal Board Order, p. 25.
l
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the Commission has not established new standards of site ac-ceptability or minimum " evacuation times" which the Board could apply.
Nor does it seem prudent to divert limited agency resources to such an exercise.
We assume that such considerations prompted the Commission to decide earlier that previously approved sites would be reexamined by another method, as discussed above. /
Conclusion The instant Petition for Review should be denied, since the matters which it raises do not meet the standards set forth in 10 C.F.R. 5 2.78 6 (b) (4).
Furthermore, we emphasize that petitioner's allegations of deficiencies in the proce-dure set out in 10 C.F.R. 5 2.206 are clearly invalid and cast no doubt upon the Appeal Board's order.
Respectfully submitted, LOWENSTEIN, NEWMA%. REIS &
AXELRAD 1025 Connecticut Avenue, N.W.
Washington, D.C.
2 036 i
By:
- ffl N
Kbthle'en H.
Shea EICHHORN, EICHHORN,
& LINK 5243 Hohman Avenue Attorneys for Northern Indiana Hammond, Indiana 46320 Public Service Company
- /
NIPSCO's views concerning the merits of the pending Section 2.206 requests are stated in Comments furnished
~
to Mr. Denton by letter of November 20, 1980.
UNITED STATES OF AMERICA E
NUCLEAR REGULATORY COMMISSION N:"
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Docket No. 50-367
)
NORTHERN INDIANA PUBLIC SERVICE
)
(Construction Permit COMPANY
)
Extension)
)
(Sailly Generating Station,
)
Nuclear-1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copibs of Applicant's Response In Opposition To Petition For Review in the above-captioned pro-ceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand delivery, this 18th day of December, 1980:
Chairman John F. Ahearne U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Commissioner Victor Gilinsky U.S. Nuclear Regulatory Commission Washington, D.
C.
20555 Commissioner Peter A. Bradford U.S. Nuclear Regulatory Commission Washington, D.
C.
20555 Commissioner Joseph M. Hendrie U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Alan S.
Rosenthal, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.
C.
20555 Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Thomas S. Moore, Esquire Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C.
20555
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Herbert Grossman, Esquire U.S. Nuclear Regulatory Commissj $
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Washington, D.C.
20555 7,,
j;y g Glenn O. Bright s
/
6 U.S. Nuclear Regulatory Commission g
.t Washington, D.C.
20555 Richard F. Cole U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Service Section Office of the Secretary 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 Steven Goldberg, Esquire Office 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
.I Robert J. Vollen, Esquire c/o BPI l
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 f
Fe=
3703 Euclid Avenue East Chicago, Indiana 46312
4 bid Diane B. Cohn, Esquire William B.
Schultz, Esquire Suite 700 2000 P Street, NW Washington, D.C.
20036 Mr. George Grabowski Ms. Anna Grabowski 7413 W.
136th Lane Cedar Lake, Indiana 46303 Dr. George Schultz 807 East Coolspring Michigan City, Indiana 46360 i
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ENCLOSURE 4 n
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 12/18/80
~
BEFORE THE COMMISSION In the Matter of
)
)
NORTHERN INDIANA PUBLIC
)
Docket No. 50-367 SERVICE COMPANY
)
(Construction Permit Extension)
)
(Bailly Generating Statien,
)
Nuclear-1)
)
~
NRC STAFF BRIEF IN OPPOSITION TO PETITION FOR REVIEW 0F ALAB-619 I.
INTRODUCTION On December 8,1980, intervention petitioners City of Gary Indiana, United Steelworkers of America Local 6787, Save the Dunes Council, the Bailly Alliance and the Critical Mass Energy Project (hereinafter " Gary Peti-tioners") filed a petition, pursuant to 10 C.F.R. 5 2.786, for Commission I
review of the November 20, 1980 Decision of the Appeal Board in the cap-l tioned proceeding (ALAB-619).
The Appeal Board decision upheld the denial of their intervention petition by the 1.icensing Board in its special pre-1/
hearing conference order of August 7,1980.
Petitioners seek review of ALAB-619 on the grounds that the Appeal Board erred in determining that their contention was n6t'liticable in this construc-tion permit extension proceeding; and further erred by determining that
)
1 1/ This Order was supplemented on August 25, 1980.
l
4
+ the remedy provided by the Commission under 10 C.F.R. s 2.206 was sufficient.
The NRC Staff believes that the Appeal to protect Petitioners' interest.
Board properly ruled that these Petitioners' sole contention regarding emer-gency planning and evacuation -is not litigable in this proceedino and that the Petitioners Section 2.206 remedy adequately protects Petitioners' interest.
have not made a satisfactory showing to warrant Commission review under the applicable provisions of 10 C.F.R.12.786 and thus the Staff opposes the present petition.
II. DISCUSSION Conmission review of Appeal Board decisions and actions is conducted pursuant to 10 C.F.R. 5 2.786.
A party may file a petition for review of an Appeal Board decision on the around that the decision is " erroneous with respect to an 2/
important question of fact, law or policy." 10 C.F.R. 5 2.786(b)(1).The petition (and answer thereto) must address matters prescribed by 10 C.F.R. 5 2.786(b)(1) and (3). The grant or denial of the petition is discretionary with certain specified exceptions.
10 C.F.R. 5 2.786(b)(4). The Staff sub-mits that Petitioners have not met their burden of showing that the Appeal Board decision was " erroneous."
A.
Summary of Decision for
,This proceeding was initiated upon publication of a " Notice of Opportunity Hearing on Construction Permit Extension" in the Federal Recister on November 30, See, e.c., Public Service Company of New Hampshire (Seabrook Station, 2/
Units l'and 2), CLI-78-11, 7 NRC 735 (1978).
. P 1979(44 Fed. Reg. 69061).
In response to the Notice, the Board received seven Three of the seven petitions were granted.
petitions.to intervene.
As relevant to this petition, a petition for leave to intervene was filed by Gary Petitioners.
In a filing on February 26, 1980, the Gary Petitioners advanced the following as their sole contention in this matter:
"Whether realistic evacuation and emergency plans can be implemented to adequately protect the populations surrounding the proposed site of the Bailly (facility]
in the event of a nuclear accid'ent'.".A special prehearing conference was held on March 12-13, 1930 to consider the intervention petitions. On May 30, 1930, the Board issued a " Provisional Order Following Special Prehearing Con-ference" which, 3ter alia, denied the petition of the Gary Petitioners. The l
Board provided an opportunity for the conference participants to file objec-tions to the provisional order before entry of a final order. Objections thereto were filed by the Gary Petitioners on June 24, 1980. The Licensing Board entered an order on August 7, 1980 in which the Board confirmed its l
- denie, the Gary Petitioners intervention petition.
Order at 40-41.
[
i On August 27, 1930, Petitioners appealed the Licensing Board's August 7,1980 l
decision.
Following the submission of written briefs and oral 6 9ument, the
)
e Appeal Board Decision of November 20, 1980 affirmed the Licensing Board's denial of the intervention petition of the Gary Petitioners. ALAB-619, slip op. at 29.
I
t i
B.
Statement of Issue Presented Below The issue b'efore the Appeal Board was whether the Licensing Board correctly rejected the proposed contention of the Gary Petitioners because it was be-yond the scope of this permit extension proceeding.
C.
Correctness of Appeal Board Decision i
The Appeal Board upheld the Licensing Board's denial of intervention on the grounds that Petitioners' contention was not litigable in this permit exten-I sion proceeding. Slip op. at 3.
The Appeal Board concluded that where, as hEre, " supervening developments alleged to warrant termination of reactor construction concededly have nothing whatever to do with the need for the pemit extension" it is " totally appropriate... to leave petitioners' con-cerns for possible consideration in a show-cause proceeding" under 10 C.F.R. 6 2.206.
Id.. at 28.
Furthemore, it intimated that, under such circumstances, but i
the section 2.205 remedy is not only " adequate and irinediately available"
" exclusive "-3/
The Staff believes that the Appeal Board decision was correct and need not be reviewed.
1.
Scope of the proceedina As a general precept, contentions must fall within the scope of the particular licensing action and be set forth with basis and particularity per the require-rnents of 10 C.F.R. 5 2.714(b) and applicable case law.
See, e.o_., BPI v.
l Atomic Energy Commission, 502 F.2d 424, 429 (D.C. Cir.1974).
3] ALAB-619, slip op. at 23.
I
- The scope.of a construction pemit extension proceeding is prescribed by 10 C.F.R. 5 50.55(b) which provides that a construction permit may be extended Secticn 50.55(b) iden-for a reasonable period of time for good cause shown.
!!/
tifies those types of matters that could provide the basis for an extension.-
i This strongly suggests that the requisite showing is one of good cause for the delay in construction. Moreover, that regulation does not establish any "sub-stantive" safety or environmental findings in contrast to those which must precede the issuance of a construction pemit (10 C.F.R. 5 50.35) or an operating license (10 C.F.R. 5 50.57).
l The parameters of the " good cause" showing under 10 C.F.R. I 50.55(b) were originally established by the Appeal Board in Indiana and Michiaan Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), ALAB-129, 6 AEC 414 (1973).
The decision below is only the second opportunity the Appeal Board has had to explore this issue.
l The practical effect of a construction permit extension action is to extend the time to complete previously authorized construction where there has been
good cause shown" for the delay. An extension proceeding does not authorize comencement of construction or plant operation. Those authorizations evolve from separate and distinct licensing proceedings which carry with them the opportunity for evidentiary hearings. Accordingly, a construction permit ex-tension proceeding is not the forum for re-litigating the grant of a construc-i tion pemit nor " pre"-litigating any eventual operating license application.
"among other things, developmental problems attributable to
-8/
These are:
the experimental nature of the facility or fire, flood, explosion, strike, sabotage, domestic violence, enemy action, an act of the elements, and 1
other acts beyond the control of the pemit holder...."
i
As a r.atter of "comaon sense," such a proceeding need not "er. brace every safety or environmental issue which the need for the extension might possibly.
sungest." 6 AEC at 420. The Appeal Board further stated that the "funda-mental purpose" of an extension proceeding is "not to determine the safety or environmental aspects of the reactor in question." 6 AEC 420.
Based on the circumstances of that case, the Appeal Board concluded that the scope of the " good cause" inquiry was properly limited to the reasons assigned by the Applicant for the need for an extension, leaving adjudicatory consideration Id at 422.
of safety and environmental issues to the~ operating license hearing.
Although recognizing that Cook was the only prior decision to address the " outer 5/
boundaries" of the " good cause" inquiry, the Appeal Board declared that the ruling in Cook was " tailored to the particular facts of that case" and was not offered as an " inflexible mold for passing judgment on the litigability in a permit extension proceeding of every variety of contention in every conceivable setting." Slip op. at 22.
In this case, the Appeal Board indicated that it would be reluctant to erect a barrier to Petitionerr' contention were the l
operating license proceeding the only other forum in which site-suitability issues could be examined; However, the Appeal Board found another remedy for Petitioners was available pursuant to 10 C.F.R. 5 2.205.
Consequently, the Appeal Board indicated that its. decision in Cook was the result of a " common sense" approach that considered the " totality of the circumstances." Id. at 22-23.
It was the " totality of the circumstances" in this case that led the Board to conclude that the Petitioners' exclusive remedy was a 10 C.F.R. 5 2.206 petition. Id at 23. The Appeal Board noted that the Petitioners' conten-i tion had "nothing whatever to do with the need for the permit extension" and, therefore, it was consistent with the "conmon sense" approach advanced in
+
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Cook to leave those concerns for consideration in a show-cause proceeding.
The Appeal Board expressly noted that a request for action, pursuant to 10 C.F.R. 5 2.206, made by these same Petitioners was pending before the Director of Nuclear Reactor Regulation on siting and emergency planning grounds which ensured that Petitioners' claims will " undoubtedly... receive the measure l
of consideration due them."'-7/
l i
The Staff submits that other factors which comprise the " totality of the
+
circumstances" in this case further justify the denial of the Petitioners' f
intervention petition. Emergency plannir.g the single concern of the Gary f
Petitioners, was initially litigated in the Bailly construction permit pro-9/
t I
8/and will be thoroughly considered by the Staff on a " final" basis ceeding in connection with the eventual oper,ating license application for the facility.
l In addition, upgraded emergency planning requirements published by the Com-j i;
mission in the Federal Reaister on August 19,1980(45 Fed. Reg. 55402) do not obligate construction permit holders to immediately demonstrate conformance-Further, with regard to site suitability matters.-
l with such requirements.
the Staff is in the process of reviewing the Bailly site to determine if addi-This is consistent with the Comission's tional modifications are necessary.
l notice of rulemaking regarding revisions in the reactor siting criteria pub-10/
t lished in the Federal _ Reaister on July 29, 1930 (45 Fed. Reg. 50350).
f i
l 6/ Id. at 28-29.
i 1/ Id. at 27.
Northern Indiana Public Service Co. (Bailly Generatir.3 Station, Nuclear-f t
-8/
1, LBP-74-19, 7 AEC 557, 568 (1974); ALAB-224, 8 AEC 244 (1974).
)
}/ See 10 C.F.R. Part 50 Appendix E.Section III.
I 10/ See Staff appeal brief at 11-12.
l
o O
3-Finally, the Director of Nuclear Reactor Regulation plans to reach a decision on the Section 2.206 request by the end of this year.
This decision is re-viewable by the Commission.
2.
Maintaining two-stage licensing The existence of the pending Section 2.206 request ensures Petitioners concerns will receive due~ consideration without injecting them into this proceeding and thereby preserving the Commissien's two-stage licensing process.
The viability of the Commission's bifurcated licensing process (construction permit nd operating license) has received Commission sanction in connection with its consideration of petitions to initiate separate hearings with respect l
to this same facility. Northern Indiana Public Service Co. (Bailly Generating l
l Station, Nuclear-I), CLI-79-11,10 NRC 733 (1979), petition for review filed, i
l No. 80-1163 (D.C. Cir., February 8, 1930). There,these same petitioners sought to institute hearings in connection with the Applicant's plans for installation of foundation piles.
In denying the petitions, the Commission i
f observed that the Atomic Energy Act favors the two-stage licensing process l
l leaving issues left outstanding at the construction stage or issues that arise subsequent thereto for resolution at the operating stace.
Id. at 742. In addition, the Commission stressed that its decision did not "in any sense whatsoever create a risk to the public health and safety," since unresolved safety questions must be considered in any hearing held on an operating license application and that reasonable assurance of safety must be affirmatively found as a precondition to the grant of an operating license.
Id.
s 9 1 Moreover, the Conmission observed that the NRC Staff had the foundation pile matter under review and that should it determine at any time, either on its own initiative or in response to a request pursuant to 10 C.F.R. 5 2.206, that substantial health and safety issues had been raised with respect to the activities authorized by the construction permit, it could initiate proceedings under 10 C.F.R. 5 2.202 or order the suspension of construction.
The Appeal Board's conclusion regarding the exclusivity of a 10 C.F.R.
Id.
5 2.205 remedy in the present case thus comports with the reasoning employed by the Commission in analogous circumstances.
D.
Commission Review Should Not Be Exercised The decision below is only the second 6 pinion to address the scope of a pennit extension proceeding. Adoption of the Petitioners' position that emergency planning considerations must be presently adjudicated would do violence to the integrity of the two-stage licensing process. As the Appeal Board aptly observed, a permit extension proceeding would become an "open-ended inquiry into the safety and environmental aspects of reactor construction and opera-tion" if an "open invitation were given to those in petitioners' situation to freight it unnecessarily with matters far removed from those events which led to its commencement."-11/
The Appeal Board properly determined that Petitioners' contention on emergency planning was not litigable in this proceeding and that the 10 C.F.R. I 2.206 Petitioners have remedy was exclusive under the circumstances of this case.
presented no cogent reasons why that decision was erroneous as a matter of law or policy so as to warrant Commission review.
i o
A s y, III.
CONCLUSION In light bf the foregoing discussion, the Staff recomends that the peti-tion for review of ALAB-619 be denied.
Respectfully submitted, N
Steven C. Goldberg Counsel for NRC Staff l
Dated at Bethesda, Maryland this 18th day of December, 1980.
.