ML20062L964

Motion to Compel Util to Implement Revised Plan for Site Restoration.No Valid Reason Exists for Further Delay. Certificate of Svc Encl

ML20062L964
Person / Time
Site:	Bailly
Issue date:	12/09/1981
From:	Vollen R PORTER COUNTY CHAPTER INTERVENORS, VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8112170012
Download: ML20062L964 (6)

Text

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f UA ,-Q BEFOP.E TIIE ATOMIC S AFETY AND LICENSING BOARD gDEc15 % g --

3 In the Matter of ) y

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NORTHERN INDI ANA PU3LIC ) Docket No. 50-367 4 M SERVICE COMPANY )

(Bailly Generating )

Station, Nu clea r- 1) )

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PORTER COUNTY CHAPTER INTERVENORS' MOTION TO COMPEL NIPSCO TO IMPLEMENT ITS REVISED PLAN FOR SITE RESTOPATION Porter County Chapter Intervenors (PCCI), by their attorneys, o rove the Board to enter an Order compelling NIPSCO to implement, arthwith, its " Report on the Resolution o.E All Construction Activities Undertaken at the Bailly Site for the Construction of Bailly Generating Stn on Nuclear-1 for Northern Inoiana Public Service Company, Octobei 8, 1981, Revised' November 18, 1981" (hereinafter Revised Plan) .

Two things are now clear in the record of this proceeding.

First, NIPSCO is not going to construct the Bailly plant (see NIPSCO's hotion to Terminate Proceeding, dated August 26, 1981).

Second, NIPSCO plans to restore the Bailly site, including filling the excavation (see letter from Mr. Shorb to Mr. Denton, dated November 19, 1981, and the Revised Plan).

Although ample opportunity has existed for any objection, no party has objected either to NIPSCO's cancellation of the Bailly plant or to NIPSCO's Revised Plan. Yet, as far as PCCI are aware, NIPSCO has done nothing to implement its Revised Plan nor to seek permission or authority from the Board to do so.

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l Accordingly, and because no valid reason exists for further delay in imp.ementing the Revised Plan, NIPSCO should be ordered to do so forthwith.

l If the relief sought by this motion is granted, PCCI's Motion Concerning Excavation, dated October 1, 1981, in large measure will become moot. There will remain, however, the issue of whether the Bailly proceedings should be terminated prior to full implementa-tion of the Revised. Plan. Once the proceedings are terminated, it may be argued that this Board has no jurisdiction over NIPSCO's compliance with the Revised Plan, and that there is no other existing forum to hear possible claims of non-compliance with the Revised Plan. In order to avoid such controversy and to provide such a forum, and because no party will suffer harm if the formal termina-tion does not take place until after implomantation of the Revised Plan, the proceedings should not be terminated until that time.

NIPSCO has not formally stated its position as to when the proceedings should be terminated vis-a-vis implementation of the Revised Plan. The NRC staff, without any effort to reconcile them, has taken contradictory positions. In its Response to Northern Indiana Public Service Company's Motion to Terminate Proceeding, dated September 15, 1981, the staff said:

L " Prior to granting NIPSCO's motion, the Licensing Board should require NIPSCO to have completed such onsite restoration as is necessary to preclude future offsite impacts from construction activities which it has con-ducted." (p. 2; footnote omitted.)

• If the Board does not rule upon NIPSCO's Motion to Terminate Proceeding until after the Revised Plan has been fully implemented, then that issue will become moot also.

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i The staff concluded:

"...the Licensing Board should not grant NIPSCO's motion until NIPSCO has restored its site so as to preclude future offsite impacts..." (Id. at p. 3.)

However, in its Response to Porter County Chapter Intervonors' Motion Concerning Excavation, dated November 18, 1981, the staff implies that the proceedings should be terminated upon the issuance of an order conditioning withdrawal of NIPSCO's appli-3 cation upon the provisions of the Revised Plan (pp. 3-4).

The staff suggests no reason for its more recent position.

The Davis-Besse decisions cited by the Staff, of course, confirm that withdrawal of an application may be conditioned pursuant to CPR 52.107 (a) . No party there disputed the procedures employed.

Here, in contrast, PCCI strenuously dispute a procedure under which there would be no existing Licensing Board to deal with complaints, if any, concerning the adequacy of NIPSCO's imple-mentation of its Revised Plan. The entire history of the Bailly 3

proceedings demonstrates the predictable futility of a request under 10 CFR S2.206.

I CONCLUSION l

For the foregoing reasons, the Board should order that NIPSCO implement its Revised Plan forthwith. Af ter full'implemen-tation, which could be established by a notice filed by NIPSCO with an

_4-opportunity for other parties to object, the Dailly proceedings should be terminated with prejudice.*

DATED: December 9, 1981 Respectfully submitted, Robert J. Vollen Jane M. Whicher s') .

by: //$

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Robert J. /hollen Attorneys for Porter County Chapter Intervenors Robert J. Vollen Jane M. Whicher c/o BPI 109 North Dearborn Suite 1300 Chicago, IL 60602 (312) 641-5570

• In its Response to PCCI's Motion Concerning Excavation, filed November 18, 1981, the staff has offered, for the first time, its position that the termination of the Bailly proceeding should be without prejudice. Contrary to the staff's assertion, the Appeal Board in Philadelphia Electric Company (Fulton Gen-erating Station) ALAB-657 (November 17, 1981) did not establish any requirement that " bad faith" be shown for a termination to be with prejudice. Surely the lack of finality in this ten-year-old proceeding, inherent in a dismissal "without prejudice,"

is more than sufficient harm to the public interest and the interests of all intervenors to justify dismissal with prejudice.

(See slip op. at 18-19) .

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

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i;OFTHERN INDIANA PUBLIC ) Docket No. 50-367 SERVICE COMPANY )

(Bailly Generating ) (Construction Permit Station, Nuclear-1) ) Extension)

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CERTIFICATE OF SERVICE I hereby certify that I have served copies of Porter County Chapter Intervenors' Motion to Compel NIPSCO To Implement Its Revised Plan For Site Restorction on each of the persons on the attached Service List by causing them to be deposited in the U.S.

mail, first class postage prepaid, this 9th day of December, 1981.

DATED: December 9, 1981 Robert J. Vollen Jane M. Whicher by v

Robert J. Vollen Attorneys for Porter County Chapter Intervenors Robert J. Vollen Jane M. Whicher c/o BPI 109 North Dearborn Suite 1300.

Chicago, IL 60602 (312) 641-5570

• W e

SERVICE LIST Herbert Grossman, Esq. Gecrge & Anna Grabowski Administrative Judge 3820 Ridge Road Atomic Safety & Licensing Highland, Indiana 46322 Board Panel U.S. Nuclear Regulatory Dr. George Schultz

_ Commission 807 E. Coolspring Road Washington, D.C. 20555 Michigan City, Indiana 46360 Dr. Robert L. Holton Administrative Judge School of Oceanography Oregon State University Corvallis, Oregon 97331 Mr. Mike 01szanski Mr. Clifford Mezo Local 1010 - United Steelworkers Dr. J. Venn Leeds of America Administrative Judge 3703 Euclid Avenue 10807 Atwell East Chicago, Indiana 46312 Houston, Texas 77096 Stephen H. Lewis, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commissio Maurice Axelrad, Esq. Washington, D.C. 70555 Kathleen H. Shea, Esq.

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

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

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

Suite 700 21010 Cumberland Road l

2000 P Street, N.W. Noblesville, Indiana 46060 Washington, D.C. 20036 Atomic. Safety & Licensing Board Panel' -

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

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