ML19354C299

Response in Opposition to G Schultz,A & G Grabowski,State of Il,City of Gary & Porter County Chapter Supplemented Petitions to Intervene Filed in Response to ASLB 800207 Order.Urges Denial of Hearing Requests.W/Certificate of Svc

ML19354C299
Person / Time
Site:	Bailly
Issue date:	03/07/1980
From:	Eichhorn W, James Shea, Shea K EICHHORN, EICHHORN & LINK, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8004020092
Download: ML19354C299 (75)

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NUCLEAR REGULATORY COMMISSION otticeof theEeutWI Docketirg f:SENICC 'v s 6 ganch j BEFORE TILE ATOMIC SAFF2Y AND LICENSING BOARD q, O N. In the Matter of ) Docket No. 50-367

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

)

Bailly Generating Station, ) March 7, 1980 Nuclear 1 )

NIPSCO RESPONSE TO SUPPLEMENTED PETITIONS TO INTERVENE I. Introduction On November 30, 1979, the Nuclear Regulatory Commission (NRC) published a Notice of Opportunity for Hearing on the application of Northern Indiana Public Service Company (NIPSCO) for an extension of the latest construction com-pletion date in its Construction Permit No. CPPR-104 for the Bailly nuclear facility. The Notice provided that:

t any person whose interest may be affected by this proceeding may file a request for a hearing in the form of a petition for leave to intervene with respect to whether, pursuant to 10 CFR S50.55 (b) , good cause has been shown for i extension of the completion date for Construction Permit No. CPPR-104 for a reasonable period of time; i.e., with respect to whether, pursuant to 10 CFR S56.55(b), the causes put forward by the Permittee are among those which the Commission will recognize as bases for extending the com-pletion date.

The Notice stated that petitions to intervene must be filed in accordance with its provisions and 10 C.F.R. S 2.714.

l 80040- A9Q -

O ik (44 Fed. Reg. 69,061.)

Petitions were filed by Porter County Chapter of the Izaak Walton League of America, Inc.; Concerned Citizens Against Bailly Nuclear Site; Businessmen for the Public Interest, Inc.; James E. Newman; and Mildred Warner (herein-after " Porter County Chapter Petitioners"); Local 1010 of the United Steelworkers of America (hereinafter " Local 1010"); the State of Illinois (hereinafter " Illinois"); Lake Michigan Federation (hereinafter " Federation"); the City of Gary; United Steelworkers of America, Local 6787; the Bailly Alliance; Save the Dunes Council; and Critical Mass Energy Project (hereinafter " Gary Petitioners"); Dr. George Schultz l

(hereinafter " Schultz"); Anna and George Grabowski (herein-

)

after "Grabowski") ; and Stephen Laudig. /

)

The petition of the Porter County Chapter Petitioners incorporated by reference previously filed documents entitled " Request for Hearing" (February 27, 1979); " Joint Supplement to Requests for Hearing" (June 29, 1979); and

" Amendment to Requests for Hearing" (October 3, 1979).

Illinois' petition also incorporated by reference some of ,

the same documents as well as its request for hearing filed

-*/ On February 5, 1980, Mr. Laudig filed his " Reply

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to NIPSCO and NRC Staff's Response"'which clearly stated that he does not wish to intervene in this proceeding. Accordingly, no further references will be made to Mr. Laudig's pleadings.

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e qw March 5, 1979. Both NIPSCO and the NRC Staff (Staff) responded to all petitions asserting in effect that none of the petitions satisfied the requirements of 10 C.F.R.

) S 2.714 and that many of general areas of consideration sug-

}

gested by the petitions went beyond the permissible scope of any such proceeding. /

On February 7, 1980, the Atomic Safety and Licensing i

j Board (Board) issued its order setting a special prehearing l

conference for March 12 and 13 which, inter alia, ordered Petitioners to file not later than fifteen days prior to the

]

special prehearing conference, supplements to their peti-l tions, "which shall include a list of specific contentions

! sought to be litigated in this proceeding." Petitioners Schultz, Grabowski, Illinois, Gary, and Porter County j Chapter all responded to that order by February 26, 1980.- /

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-*/ "NIPSCO's Response to Petitions Filed in Response to Notice of Opportunity to Hearing" (hereinafter "NIPSCO's Response"); "NIPSCO's Response to Letters l Filed by Citizens Grabowski, Laudig and Schultz" j (hereinafter "NIPSCO's Response to Grabowski, et al."); "NRC Staff Response to Separate Petitions i Tor Y'ntervention Filed by George Schultz, Stephen Laudig, and George and Anna Grabowski" (hereinafter

" Staff Response to Individual Petitions"); "NRC

Staff Response to Intervention Petitions and Related

Filings of Separate Organizational and Governmental Entities" (hereinafter " Staff Response to Organi-s zations").

--**/. Local 1010 and Federation did not file supplements to j their petitions. Porter County Chapter Petitioners 1 filed another, untimely supplement on February 27 in

. the form of a " Notice of Joinder and Adoption."

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Thus, pursuant to the Notice of Opportunity for Hearing (4 4 Fed. Reg. 69,061) , Commission regulations 10 C.F.R.

S 2.714 and S 50.55 (b) , and the Board orders implementing the notice and the regulations in this proceeding, the Board should now have before it a clear statement of the intereste of each petitioner, how those interests may be affected by the proceeding, including the reasons why petitioners should be permitted to intervene, the specific aspects of the sub-ject matter of the proceeding as to which each petitioner wishes to intervene, and a list of specific contentions sought to be litigated in the proceeding along with the basis for each contention set forth with reasonable specifi-city.

Some of the petitioners have failed to satisfy one or more of these requirements. Porter County Chapter Peti-tioners state that, because of the short time permitted to them to prepare their supplement, they have not had the opportunity to address the issues of standing, the scope of hearing, and the applicability of 10 C.F.R. S 50.55(b) and will present their positions on those matters orally on March 12, 1980. (Joint Intervenors' First Supplement to Petition for Leave to Intervene, pp. 1-2.) Both the Porter County Chapter Petitioners and Illinois make it clear that they intend to amend or supplement their petitions'in

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the future. /

To the extent that these expressions suggest that Peti-tioners may, without prior approval of the Licensing Board, amend petitions to intervene at will and without regard to the time limitations set forth in 10 C.F.R. S 2.714 (a) (3) ,

they arc plainly wrong. Moreover, the suggestions ignore the course charted by this Board. In its February 7, 1980, order the Board made it clear that, in accordance with regu-lations, it expected to have all of the contentions before it at the time of the prehearing conference and that the conference would be devoted to the discussion of then, to the determination of which, if any, should be considered in a hearing, and to the scheduling of that hearing should it determine one to be required. In that order the Board said:

in addition to discussing all of the issues rra ised with regard to the intervention petitions and the request for waiver of or exception to C.F.R. S 50.55(b), the parties should be prepared to discuss specific issues that might be con-sidered at an evidentiary hearing and possible further scheduling in the proceeding.

(p. 3; emphasis supplied)

It is surprising that Porter County Chapter Petitioners and Illinois are unable at this time to address the issues

-*/ Porter County Chapter's designation of the pleading as a "First Supplement" clearly implies an intention to file an additional supplement to the petition to intervene, and in its Supplemental Petition (p. 2),

Illinois expressly " reserves the right to augment i and amend its contentions."

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of their standing to participate in the proceeding and their views with respect to the scope of the hearing which they have been actively seeking for more than a year. (See p. 2, supra.) It is even more surprising that these Petitioners are unable to address questions on the applicability of 10 C.F.R. S 50.55 (b) to this proceeding. This issue was raised by Porter County Chapter Petitioners, joined by Illinois, through filing their " Petition for Waiver of or Exception to 10 C.F.R. S50.55(b)" at the same time as their Petition for Leave to Intervene, on December 20, 1979. In view of all the circumstances, NIPSCO urges the Board to limit its inquiry with respect to possible contentions to be litigated in this proceeding by the Porter County Chapter Petitioners and Illinois to those matters specifically listed as contentions in the February 26, 1980, pleadings of the Petitioners and determined to be admissible--if any. In addition, NIPSCO trusts that the Board will not permit further supplements, amendments, or " augmentation" of the petitions to intervene in the absence of a prior showing of good cause.

Gary Petitioners and the Grabowskis have provided addi- l I

tional information with respect to standing and have identi- i fied issues which they believe should be litigated in the proceeding. Dr. Schultz has supplemented his original filing but has given little additional information regarding

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his standing or his contentions. Local 1010 and Federation i' have apparently elected to stand on their original petitions -

and have not filed supplemental petitions.

Because of the number of petitions involved and the .

extensive incorporation by reference of earlier pleadings by Porter County Chapter and Illinois, this response is some-s what lengthy. To assist the Board, we shall briefly outline its organization.

I The response first addresses " standing" and shows that none of the supplemental petitions filed by the various petitioners satisfies the M9.C requirements for admission as of right because of the failure to demonstrate an interest that may be affected by the proceeding. Additionally, such petitions fail to demonstrate sufficient bases for admission as a matter of discretion.

The response next discusses the question of the scope ,

of the proceeding in the event the Board should determine that at least one of the petitioners should be admitted as a party. We have previously dealt with the question of scope of the hearing in our January 18, 1980, " Response to Peti-l tions Filed in Response to Notice of Opportunity for Hearing"; however, additional emphasis is required in view of some of the supplemental petitions.

Finally, we address the matters characterized by each of the petitioners as contentions and conclude that none of 1

, the petitioners 1.as identified a contention within the scope l of this proceeding which meets the requirements of 10 C.F.R.

S 2.714 (b) .

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r tv II. Standing to Intervene In their responses to the petitions to intervene, NIPSCO and the NRC Staff pointed out several deficiencies in all of the petitions to intervene, and concluded that none of the petitioners has made a sufficient showing to establish its standing to intervene in this proceeding. NIPSCO's basic position was that: "Unless the Petitioners can establish i that the extension will produce an additional or incremen-2 tal injury to them above that authorized by the construction permit, they will not have standing to intervene in the pro-

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ceeding to extend the construction permit." The NRC Staff took substantially the same position.

Although they have been afforded the opportunity to cor-rect the deficiencies, the Porter County Chapter Petition-ers, Illinois, and George Schultz have failed to do so in their supplemental petitions. In their "First Supplement to Petition for Leave to Intervene," the Porter County Chap-ter Petitioners expressly state that they have not discussed >

standing (pp. 1-2). Illinois and George Schultz simply omit any mention of the matter; and, to date, the Lake Michigan

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NIPSCO's. Response-to Grabowski, p. 3.

" Staff Response to Individual Petitions," pp. 13, 14,

• • / 17-18, 19); " Staff Response to Organizations," pp. 13, 22, 28.

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e 1, 9-Federation and Local 1010 have filed nothing. Consequently, none of these petitioners has made any further argument con-cerning standing, and we continue to assert that it would be legally impermissible for the Board to grant these petition-ers leave to intervene in this proceeding.

The supplemental petitions of Gary Petitioners and of the Grabowskis do attempt to address standing. Nevertheless, they still fail to satisfy the Commission's requirements.

One of the Gary Petitioners, Critical Mass Energy Pro-ject, only " seeks discretionary intervention in these pro-ceedings on the grounds that its expertise with respect to the issue of emergency planning will contribute substantially to the development of a sound record."~*/ However, emergency planning is outside the scope of this proceedinc;--**/ and Critical Mass Energy Project's asserted ability to contri-bute to a record on emergency planning is irrelevant. There-fore, it has not satisfied the one valid contention require-ment of 10 C.F.R. S 2.714(b), and its petition should be denied.

• / See " Reply to NRC Staff and NIPSCO Response to Petition for Leave to Intervene (hereinaf ter " Gary Petitioners '

Reply"), filed on behalf of the City of Gary, Indiana; United Steelworkers of America Local 6787; the Bailly Alliance; Save the Dunes Council; and the Critical Mass Energy Project, at p. 4.

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• • / See Section III.D.4., infra; see also NIPSCO's Response, l pp. 38-48.

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The other Gary Petitioners have attempted to base their standing upon alleged injury from operation of the plant and upon the fact that they "will benefit if NIPSCO's re-quest for an extension is denied."~*/ However, as stated in NIPSCO's Response.(p. 16), a petitioner can intervene in a construction permit extension proceeding only if he has an interest which may be affected by that proceeding; i.e.,

upon "a clear showing of added injury flowing from the ex-tension itself."--**/ Since alleged injury from operation is not the result of a proceeding on an extension of a construc-tion permit, such injury is insufficient as a basis for standing to' intervene in this proceeding.

• • • /

The Gary Petitioners' reliance upon Duke Power is misplaced. Section 189 of the Atomic Energy Act (42 U.S.C.

S 2239) requires an intervenor to demonstrate that he has an interest "which may be affected by the proceeding," in order to initiate a hearing in a license amendment proceed-ing conducted by the Nuclear Regulatory Commission and to .

participate in the hearing. Duke Power did not eliminate the requirement. It only held that a plaintiff in a civil

• / Gary. Petitioners' Reply, pp. 2-3.

• • / Southwest Broadcasting Co., 18 F.C.C.2d 858, 859 (1969).

• • • /' Duke Power Jo. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978).

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l action had standing to challenge the constitutionality of the Price-Anderson Act, because the Act was causally connec-ted to injuries allegedly sustained from operation of the nuclear plant. There was no suggestion by the Court that such alleged injuries would be sufficient for standing to intervene in any and all administrative proceedings regard-ing the plant, including those which are unrelated to opera-tion of the plant. Duke Power does not relieve the Petition-ers of their obligation under the statute and the regulations to show that they may be injured by the results of this par-ticular proceeding.

Moreover, the fact that the Petitioners 'dwill benefit if NIPSCO's request for an extension is denied" is not suf-ficient, by itself, to establish the Petitioners' interest" in this proceeding. The Court in Duke Power clearly stated that standing is predicated upon the satisfaction of two sep-arate tests: " injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury." (438 U.S. at 79.) Thus, contrary to the Petitioners' assertion, receipt of a remedial benefit does I

not, by itself, constitute an " injury in fact." To meet the Court's test in Duke Power, the Petitioners must show both an injury caused by a possible outcome of this proceeding and a substantial likelihood that they will obtain relief of that injury upon a favorable decision. Since the Petitioners O

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.- tv still have not alleged that they will incur an incremental injury flowing from the extension itself, they have not shown that they have an interest which may be affected by

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this proceeding.~

The Grabowskis have supplemented their original petition to state five different bases for their standing to inter-vene in this proceeding. Of these five grounds, only the second deserves discussion.--**/

• / NIPSCO also notes that the affidavits of David C. Wil-born and Charlotte Read do not meet the technical re-quirements enumerated in Houston Lighting and Power Co.

i (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 393-96 (1979). Neither affiant alleges that he considers himself personally injured by thir proceeding, and each fails to identify specifically a member who may be affected by this proceeding, and who has authorized the petitioners to represent his interests.

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• • / The remaining injuries alleged are (1) injury from op-eration [which is insufficient for standing as discussed in NIPSCO's Response of January 18, 1980]; (2) biased ~

and misleading statements by NIPSCO [this is essentially equivalent to a special interest in a problem, which is insufficient under Sierra Club v. Morton, 405 U.S. 727 (1972); Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420

. (1976 ) ] ; (3) expenses of additional litigation [this is an economic interest, which is insufficient under Port-land General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2) , CLI-76-27, 4 NRC 610 (1976)]; and (4) incomplete energy planning [this also appears to be an economic interest, although any characterization of this is difficult since the petition does not set forth with particularity the precise manner in which this would injure the Grabowskis].

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e y The Grobowskis do state that the additional period of construction will cause them " serious tension, stress and strain" (p. 3). However, as demonstrated below, this claim does not constitute an " injury in fact" and does not assert an interest which is withi n the zone of interests protected by the Atomic Energy Act or the National Environmental Policy Act (NEPA). Consequently, it is insufficient for standing to intervene. (Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).)

The " serious tension, stress and strain" asserted by the Grabowskis is not within the zone of interests protected by the Atomic Energy Act. Although the Atomic Energy Act

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was enacted to protect the public's health and safety, it was not designed to safeguard every aspect of a person's

" health." The purpose of the Act was to protect the public only against hazards from radiation. (New Hampshire v. AEC, 406 F.2d 170, 174-175 (1969).) Thus, psychological health of an individual is not within the zone of interests pro-tected by the Act.

Although the cases are not entirely consistent, the pur-pose of NEPA is to protect the environment, not the psycho-legical health of the public. (Nucleus of Chicago Homeowners Ass'n v. Lynn, 524 F.2d 225, 231 (7th Cir. 1975), cert. den.

• / Atomic Energy Act, S 2 (d) , 42 U.S.C. S 2012.

, e v 424 U.S. 967 (1976); First National Bank v. Richardson, 484 F.2d 1369, 1380 n.13 (7th Cir. 1973); Hanley v. Kleindienst, 471 F.2d 823, 833 (2nd Cir. 1972), cert. den. 412 U.S. 908 (1973); Monarch Chemical Works, Inc. v. Exon, 466 F.Supp.

639, 657 (D. Neb. 1979); and Trinity Episcopal School Corp.

v. Romney, 387 F.Supp. 1044, 1078-79 (S.D.N.Y. 1974), aff'd in part and rev'd in part on other grounds, 523 F.2d 88 (2nd Cir. 1976).) See also Comp-Falcon Coalition v. U.S. Depart-ment of Labor,'465 F.Supp. 850, P61-62 (D. Minn. 1978).

Contra, Chelsea Neighborhood Asscciations v. U.S. Postal Ser-vice, 516 F.2d 378, 388 (2nd Cir. 1975).-*/ Thus, we submit, psychological stress is not within the zone of interest pro-tected by NEPA. Consequently, the Grabowskis cannot base standing upon their allegation of psychological stress.

Even if the Commission or a court should determine that some kind of psychological stress is cognizable under NEPA in some circumstances and in some contexts, it seems obvious that_any such determination would have to be meaningfully .

• / Recently, a licensing board certified to the Commission the question of whether psychological distress was role-vant to its proceedings. Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit No. 1), Licen-sing Board Certification to the Commission on Psycholog-ical Distress. Issues (February 22, 1980). See CLI l 8, 10 NRC 141, 148 (1979). A decision by the Commission i is pending. )

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.. y defined and limited.-*/ It is difficult to conceive that any such definition would include the stress of which the Grabow-skis complain. ma submit that a fair reading of their sup-plemental petition (p. 2) reveals that their principal objec-tion is to the operation of the Bailly plant at any time and that their references to additional emotional stress over an additional period of construction is merely another form of expression of that basic objection.

These Petitioners have not alleged that construction, whether or not on an extended schedule, will physically in-jure them. They only state that their apprehensions concern-ing the future operation of the plant will extend over a longer period than if the plant were completed earlier.

There comes a point where an injury, or the threat of injury, is so attenuated-that it cannot suffice for standing. (See l

O'Shea v. Littleton, 414 U.S. 488, 495-497 (1974); Linda R.S.

• / Even if psychological stress should be determined to be sufficient for standing, we would assume that standing would be limited to those who experience reasonable psychological stress. For example, if any psychological stress is adequate for standing, then the Commission's

. geographic zone of interest test would be rendered mean-ingless. A Californian, with a sincere, but unreasonable fear of a facility-in New York, could obtain standing'in proceedings involving that facility, if such apprehen-sions are acknowledged for standing purposes.

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v. Richard D., 410 U.S. 614, 617-618 (1973).) ~*/ The injury here alleged is de-minimus and does not afford these Peti-tioners standing in this proceeding. (See Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP 10, 9 NRC I39, 457, aff'd, ALAB-549, 9 NRC 644 (1979).) The Grabowskis petition to intervene should be denied.

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• / See also Exxon Nuclear Cc. (Nuclear Fuel Recovery and Recycling Center), LBP-77-59, 6 NRC 518, 520 (1977),

which~ held that~ injuries which are " speculative" and based on " tenuous assumptions" do not confer standing.

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-III. ' Contentions Prof fered by the Petitioners A. General Comments In this portion of its. Responso, NIPSCO addressen the admissibility of the contentions identified by various petitioners. Ilowever, in some casca it la difficult to I determine what 'those contentions arc. The difficultion arise in part from petitioners' .docision to file pleadings

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which " incorporate by reference" other documents. Some of the' latest pleadings are termed " cumulative;" they are also duplicative. Wo note that the Commission has viewed with disfavor attempts to incorporato prior pleadings almilar to the efforts by the Porter County Petitionero and Illinois. /

It has previously been stated that incorporation fails to satisfy the spcCJ.ficity requirements of S 2.714. (Tenneance Valley Authority (Browns Ferry Nuclear Plant, Units 1 and 2),

LDP-76-10, 3 NRC 209, 216 (1976); Alabama Power Co. (Alan R. Barton Nuclear Plant, Unita 1, 2, 3, and 4), LUP-75-32, 1 NRC 612, 615 (1975).) Thus, any contentiono incorporated by reference snould be rejected.

• / These petitioncru' supplemental petitions of February 26, 1980, incorporate their petitions to intervene of December 20, 1979,-their Joint Supplement to Re-quests for IIcaring of June 29, 1979, the amendment to Requests for I! caring of October 3,1979, Illinoin Requent

~ for Ilcaring of March 5,1979, and Porter County Pot.-

ioners Roquest for IIcaring of February .27, 1979.

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e s-Many " contentions". filed to date fail to qualify as contentions in the accepted sense, and are vague or contain general descriptions of subject matters which the petitioners desire to litigate.* / For example, the first " contention" in the Porter County Chapter Petitioners' supplemental peti-tion is three pages long and attacks several aspects of NIPSCO's application for an extension. The same Petitioners' pleading of December 20, 1979, asserts that "recent signifi-cant events" should be considered in this proceeding, with-out specifying why these should be considered or how they relate to Bailly or this extension proceeding.

These types of " contentions" do not meet the specificity requirement of S 2.714 (b) , and they should be rejected. The absence of a precise formulation of specific contentions would leave NIPSCO, the Staff, and the Board without a con-

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In some cases, we are uncertain whether the petitioners even intended to raise a contention. E.g. "The Good Causes for extending the construction permit that really should be considered are: Do we really need this ,

plant? . . . (p. 6 of the Grabowskis' supplemental petition); and " Preliminary permit hearings should include an evaluation of ultimate safety problems, e.g.,

the transportation and disposal of dangerous fuels, safety problems with regard to sabotage . . . " (p. 3 of George Schultz's supplemental petition). These state-ments appear to be attempts to define " good cause" and the scope of the proceeding, rather than contentions.

If these were intended to constitute contentions, they lack the ' specificity and basis required by S 2.714 (b) .

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. .g crete reference with which to construct their own arguments.

Also, an unspecific contention is illusory in that the peti-tioner can adjust its meaning to suit his particular purpose at that moment. Thus, the other parties are at a double disadvantage in addressing such " contentions".

Finally, the Board is under no obligation to rephrase

" contentions" to make them acceptable. (Commonwealth Edison Co. (Zion Station, Units 1 and 2) , ALAB-226, 8 AEC 381, 406 (1974).) Especially in regard to the Porter County Chapter Petitioners and Illinois, both of which are represented by counsel and have had extensive experience in proceedings before the commission, there can be no excuse for the failure to file adequately phrased contentions in a timely fashion.

Because of the lack of specificity, and since several

petitioners raise similar issues, we shall discuss, where we believe it will be helpful, the admissibility of the subject matter of the contentions rather than the specific wording of each individual contention. Hopefully, this will provide the Board and the parties with adequate notice of the ground for our comments and objections to the contentions of the petitioners.

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B. Issues in a Construction Permit Extension Proceeding-

-The Cook Rule Many of the petitions to intervene appear simply to as-sume that a construction permit extension proceeding is one of unlimited scope. / For this reason we believe it may be helpful to discuss that question before we address the spe-cific contentions.

As a general matter, not every health and safety or environmental issue dealing with a facility is cognizable in a licensing amendment proceeding. The limiting factors in such proceedings are the scope of the pending amendment and those issues which have a reasonable nexus to the amend-ment. (Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-245, 8 AEC 873, 875 (1974);

Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1 and 2), LBP-76-10, 3 NRC 209, 221-22 (1976).)

More particularly, the jbriadiction of a licensing board in an amendment proceeding is restricted to those issues specified'in the notice of hearing. (Portland .

General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979) . )

-*/ One effort'to define the scope of the proceeding may-be found in the Supplemental Petition of the State of Illinois which states that NIPSCO must show that the reasons which it assigns for the extension "do not give rise'to health and safety or environmental-issues, litigation of which is necessary to protect the interests of-intervenors or public interest." (p.7.)

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o u The notico pertinent here stated that interested per-sons could intervene with respect to whether, pursuant to 10 CFR 50.55(b),

good cause has been shown for extension of the completion date for Construction Permit No.

CPPR-104 for a reasonable period of time; i.e.,

with respect to whether, pursuant to 10 CFR 50.55(b), the causes put forward by the Permittee are among those which the Commission will recog-nize as bases for extending the completion date.

(44 Fed. Reg. 69,061 (1979).) Thus, the scope of this proceeding is limited to whether NIPSCO has shown good cause for an extension of its construction permit and to those issues reasonably related to the request for an extension.

Few decisions exist which interpret the phrase " good cause" as used in Section 185 of the Atomic Energy Act (4 2 U.S.C. S 2235) and 10 C.F.R. S 50.55 (b) . The leading case on this subject is Indiana and Michigan Electric Co.

(Donald C. Cook Nuclear Plant, Units 1 and 2), ALAB-129, 6 AEC 414 (1973). The opinion in Cook delineated the safety and environmental issues which could be reviewed in a pro-ceeding on an extension of a construction permit. Because we refer to Cook below when we address particular conten-tions, we preliminarily discuss it at this point.

In Cook,-the Appeal Board rejected the argument that an: extension proceeding is an appropriate occasion for a full safety and environmental analysis of the plant.

A common sense approach . . . excludes, how-ever, the intervenor's equally mechanical l

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t t, insistence that, in all circumstances, the

" good cause" hearing must embrage every safety or environmental issue which the need for the extension might possibly suggest.

The. fundamental purpose of that hearing is, after all, not to determine the safety or environmental aspects of the reactor in question.

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(6 AEC at 420 (emphasis in original) .)

The Appeal Board also rejected the argument that an extension proceeding should encompass a safety and environ-mental review of changed circumstances not related to the causes of delay in construction.

Design changes during the course of plant construction are, needless to say, not un-common occurrences. Indeed, it is inevitable that, during the course of the construction over a period of years of any nuclear facil-ity, at least some such changes will be effec-tuated.

Under the regulatory scheme, the safety implica-tions of any design change made while the reac-tor is under construction do not receive an instantaneous evaluation by a licensing board.

To be sure, all construction activities of the applicant are constantly monitored by the regu-latory staff, which is empowered to take

-*/ This holding is in accord with numerous subsequent deci-sions which have held that an amendment proceeding need not include a complete safety and environmental audit of the entire facility. (See Northern States Power Co.

(Prairie Island Nuclear Generating Plant, Units 1 and 2) ,

ALAB-455, 7 NRC 41, 46-47 n.4 (1978), remanded on other-grounds Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979);

Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units j 1 and 2) , ALAB-291, 2 NRC 404, 414-15 (1975) ; Portland l General Electric Co. (Troj an Nuclear Plant) , LBP-7 8-40, I 8 NRC 717, 744-45 (1978), aff'd, ALAB-534, 9 NRC 287 l (1979); Tennesee Valley Authority (Browns Ferry Nuclear l Plant, Units 1 and 2), LBP-76-10, 3 NRC 209, 221-22 (1976).)

I a

corrective action with respect to any safety hazards (including, if deemed necessary, the issuance under Subpart B of the Rules of Practice of an order to show cause why the permits should not be modified, suspended or revoked). See Section 186a.of the Atomic Energy Act, 42 USC 2236a; 10 CFR S 50.55. In normal circumstances, how-ever adjudicatory consideration of any opera-tional safety problems allegedly arising during construction will await the operating license review--which will include a hearing if (as here) a petition for intervention is filed and granted.

Thus, had the design changes effected by the applicants in the present case, taken in conjunc-tion with other factors, not delayed the comple-tion of construction beyond the latest comple-tion date specified in the permits, there would be no question that (absent a show cause pro-coeding) any safety issues associated with those changes would have been considered by the Licensing Board in the operating license proceeding--and not before.

(6 AEC at 420-21.) -*/

~*/ This holding is in accord with numerous subsequent decisions which have held that an amendment proceed-ing need only consider those environmental and safety issues which are relevant to the amendment itself.

(See - cases in preceding footnote. See also Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),

LBP-78-ll, 7 NRC 381, 393 (1978), aff'd, ALAB-470, 7 NRC 473 (1978); Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 1), LBP-74-57, 8 AEC 176, 184 (1974), aff'd, ALAB-231, 8 AEC 633 (1974).) Since changed circumstances not related to the causes of the delay are not relevant to the extension, they are not within the scope of this proceeding.

This holding is also in accord with those decisions which have held that the operating license proceeding is the appropriate forum for consideration of safety issues which have developed since the issuance of the construc-tion permit. (Porter County Chapter v. NRC, 606 F.2d 1363 (D.C. Cir. 1979), af f ' d Commission Memorandum and Order, CLI-78-7, 7 NRC 429 (1978); Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-fl7' Commission Memorandum and Order (December 12, 1979).

See also Power Reactor Development Corp. v. AEC, 367 U.S. 396 (1961).)

o e Cook did indicate that consideration of limited safety

.and environmental issues related to the causes of the delay

.could be appropriate.

If, for example, one or more of the causes as-signed for the delay in completion in and of themselves were arguably to cast serious doubt upon the ability of the applicant to construct a-safe facility, could a licensing board justi-fiably blind itself to this fact and neverthe-less find " good cause" for extending.the dead-

line for completion? We think not under any reasonable interpretation of the term.

(6 AEC at 420 (emphasis in original) . ) However, such a con-1 sideration was sanctioned only for unusual and rather nar-row circumstances. /

In the final analysis, then, the question here comes down to whether the reasons assigned for the extension give rise to health and safety or environmental issues which cannot appro-priately abide the event of the environmental review-facility operating license hearing.

Put another way, we must deciae whether the present consideration of any such issue or issues is necessary in order to protect the interests of intervenors or the public interest.

Insofar as the matter of health and safety is concerned, as previously noted intervenors focus on the design changes which have been effected by the applicants and which consti-tuted one of the reasons for the construction delay. We do not perceive, however, any pos-i sible prejudice to intervenors if the consider-ation of any operational safety problems asso-

' ciated with these changes.were to be deferred to the operating license hearing.

(6 AEC at 420 (emphasis added).)

• / In that.particular case, the Appeal Board refused to consider the specific safety and environmental issues related to the causes of delay in construction sought to be raised by the intervenors.

-v 3 r .-- - - - , ~ < - ---n r - _

, , , , , , -,---e n,-,--n-- , , w <

e i.

g In summary, Cook stands for the proposition that safety and environmental issues are within the purview of a pro-ceeding on an extension of a construction permit only if

1) they are related to the causes of the delay in construction;

2) they, in and of themselves, arguably cast serious doubt upon the ability of the applicant to construct a safe plant; and

3) consideration of them cannot appropriately abide the operating license proceeding.

All other safety and environmental issues, whether related to the causes of delay in construction or whether related to changed circumstances, are not within the scope of an extension proceeding.

I 9

, - - ,,e,.e en , ,,, - - - - - ,s---- .s -w-- m-

.. - s, 4

C. Contentions Related to Subject Areas Within the Scope of a Bailly Extension Proceeding We have previously outlined the subject areas within which, we believe, contentior:s can be identified which could be: admissible in a proceeding to consider extension of a construction permit. (NIPSCO's Response, pp. 25-35.)

Summarily stated, these are: whether " good cause" has been showr. for the extension, whether the period of extension sought is a " reasonable period of time," and whether an environmental impact statement is required under the Na-tional Environmental Policy Act. Several of the February 26 supplemental plealings appear to contain contentions intended to fall within these subject areas. We shall ad-dress them first.

1 1. Has " good cause" for the extension been shown?

-*/ Porter County Chapter Petitioners and Illinois argued in their December petitions that the Board should also consider ~whether NRC did in fact find that the exten-sion involves no "significant hazards consideration" and, if it did, whether "the procedure by which it so found wa.s a fair and legal procedure and whether the finding is a justifiable, correct or supportable finding." (Illinois Petition, p. 3.) These "conten-

+

tions" are not repeated in the supplemental pleadings but may be assumed still to be advanced by petitioners.

We have previously argued that these questions are academic and without relevance to this proceeding.

(NIPSCO's Response, pp. 36-37.) These " contentions" y should be rejected on that basis. (See also Staff-Response to Organizations, pp. 19-20.)

I h

l

~.

-e i.

a. State of Illinois The Supplemental Petition of the State of Illinois argues that NIPSCO must show that the " events which caused delay in completion of the Bailly plant were not within [its) control" (p. 4), or, stated another way, that "it was not in large measure responsible for the circumstances leading to the delay." (p. 7.) The only support cited for the argument is the NRC regulation, 10 C.F.R. S 50.55(b). The argument is, we submit, singularly unpersuasive.

First, the regulation simply does not say what the Illinois argument says it says. Section 50.55(b) does not state that " good cause" can be found only in things beyond the permit holder's control; in fact, Section 50.55(b) ex-plicitly negates any inference to that effect which might otherwise be drawn. The regulation states:

If the proposed construction . .

. of the facility is not completed by the latest completion date, the permit shall expire and all rights thereunder shall be forfeited: Provided, 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, developmental problems attributable to the ex-perimental nature of the facility or fire, flood, explosion, strike, 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.

4. wL Clearly, " acts beyond the control of the permit holder" are listed "among other things" which the Commission will recognize as constituting " good cause"; they are not the

.only things to be recognized. There is no reason in the

' language'or in logic to limit " good cause" to acts beyond

the permit holder's control.

Second, the consistent practice of the agency demon-strates conclusively that the regulation imposes no re-quirement that the causes of delay must be beyond the permit holder's control in the sense advocated by Illinois or, in-deed, in any sense. Delays resulting from an exercise of rea-sonable judgment by a permittee have long been recognized

.to constitute " good cause." These have included such vo-litional events as facility redesign ~*/ or-the determination

~

• / Portland General Electric Co. (Trojan Nuclear Plant),.

Order of January 17, 1975; Florida Power Corp. (Crystal

-River-Nuclear Generating Plant, Unit 3), Order of Febru-ary 12, 1975; consolidated Edison Co. (Indian Point (footnote continued on next page)

4- w to delay construction for financial reasons, / or to adjust to changes in the need for power.- /

(footnote continued)

Nuclear Generating Unit No. 3), Order of February 28, 1975; Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), Order of April 15, 1975; Duquesne Light Co. (Beaver Valley Power Station, Unit 1), Order of June 17, 1975; Public Service Electric & Gas Co.

(Salen Nuclear Generating Station, Units 1 & 2), Order of July 1, 1975; Toledo Edison Co. (Davis-Besse Nuclear Power Station, Unit 1) , Order of July 30, 1975; Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), Order (undated) 1975; Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), Order of October 5, 1976; Virginia Power & Light Co. (North Anna Power Station, Unit 1), Order of Sptember 28, 1977; Commonwealth Edison Co. (LaSalle County Station, Units 1& 2), Order of May 31, 1978; Washington Public Power Supply System (WPPSS Nuclear Project No. 2), Order of August 29, 1978.

• /

~

Florida Power Corp. (Crystal River Nuclear Generating Plant, Unit 3), Order of February 12, 1975; Philadephia Electric Co. (Limerick Generating Station, Units 1 & 2),

Order of May 13, 1975; Indiana & Michigan Power Co.

(Donald C. Cook Nuclear Plant, Unit 1), Order of January 20, 1976; Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), Order of August 3, 1976; Arkansas Power & Light Co. (Arkansas Nuclear One, Unit 2), Order of September 28, 1976; Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 & 2), Order of November 5, 1976; Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), Order of August 18, 1977; Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), Order of January 16, 1978; Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), Order of April 15, 1975; Louisiana Power & Light Co. (Waterford Steam Electric l Station, Unit 3), Order of July 19, 1979. i

~~**/ Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Pant, Unit 2), Order of January 15, 1974; Duke Power Co. (William B. McGuire Nuclear Station, Units 1

& 2), Order of August 3, 1976.

l

^6 1.

The-issues sought to be raised in Illinois' Contention 2 (Supplemental Petition, pp. 4-6) relate solely to whether the delaying factors identified by NIPSCO were in fact be-yond its control. We do not read that Contention as seek-ing'to controvert NIPSCO's position that the facts recited t

4

-did cause delays in construction or as raising any other issues. In.our view, the contention should therefore be +

held to be inadmissible as a matter of law.

Furthermore, we submit that no admissible contention can be fashioned from the factual allegations in the Illi-nois contention. Those allegations focus on two causes of

' delay cited by NIPSCO--installation of the slurry wall and i

the lengthy NRC Staff review of the piles matter and founda-tion design.

Illinois alleges that the delay occasioned by the "need to construct a slurry wall was due to NIPSCO's inade-quate assessment of the environmental effects of its con--

struction plan." The truth is somewhat different as is recorded in AEC/NRC decisions in Bailly. The environmental effects of dewatering were litigated in the construction f proceeding and the Licensing Board concluded that the off-site effects would be slight. Furthermore, the Board aooroved NIPSCO's monitorina crocram which will detect any effects which dewatering may have upon the Lakeshore. If '

dewatering unexpectedly should have an effect upon the f

.- on . .,- -- ,--n-- -a y ,- e- -

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_ 31 -

the'Lakeshore, the Board found that appropriate remedial steps could be taken. .In short, NIPSCO's construction-de-watering plan was assessed by NIPSCO, the Staff, and the Licensing Board and. found to be adequate. (Northern Indiana

, Public-Service'Co. (Bailly Generating Station, Nuclear-1),

LBP-74-19, 7 AEC. 557, 589-91, aff'd, ALAB-249, 8 AEC 98 0 ' (1974 ) . ) ,

. Shortly after the Bailly construction permit was is-sued, NIPSCO learned of the possibility of installing an i

underground " slurry wall" around the construction excava-tion through use of a technique not previously utilized in 4

l the United States.-*/NIPSCO did not propose to construct a f slurry wall because of any "need" for such a measure; the absence of such a need had been established. Rather, having found a promising method, NIPSCO elected to put it to use "to alleviate any dewatering concerns" and because, through its use, "[t]he potential for adverse environmental effects-caused by lowering of-the ground water is essentially

, s climinated . . . . (Letter, NIPSCO (;Mr . Lyle) to AEC (Mr. Knighton), Attachment, p. 1 (September 6, 1974).)

b

• / The wall is composed of a slurry of bentonite clay, cement, and water and is injected into the soil under 3 pressure by means'of a vibrated steel I-beam. The slurry penetrates the spaces between individual grains of sand and forms a relatively impenetrable barrier to the flow of groundwater into the excavation.

! (Northern Indiana Public' Service Co. . (Bailly Generating Station, Nuclear-1), LBP-74-85, 8 AEC.901, 903-907 '

l (1974).)- 1 i

l

e .

Since dewatering effects had been " seriously contested" in the construction permit proceeding and NIPSCO pro-posed a " shift" in that area, the Commission, acting sua sponte decided to reopen the record and conduct a hearing.

Illinois and Porter County Chapter Petitioners were parties in that hearing. In the reopened proceeding, the Licensing i

Board found that, whether ti e slurry wall was totally or partially successful, its " construction will virtually eliminate or substantially reduce the need for dewatering by well points." (Northern Indiana Public Service Co.

(Bailly Generating Station, Nuclear-1, LBP-74-85, 8 AEC 901, 907 (1974), aff'd, ALAB-303, 2 NRC 858 (1975).)

It would therefore appear that the delay associated with tha slurry wall might well be said to have been within NIPSCO's control. But that would in no way affect the con-clusion that that delay constitutes one " good cause" for failure to comp 1 1te the construction within the period es . .

timated when no slurry wall was planned.

Illinois also attacks the delay while e Staff has been reviewing the piles matter and foundation design.

This, too, allegedly was within NIPSCO's control and occurred because of the failure of NIPSCO and its contrac-tors to collect enough information " prior to construction" or " devise a proper construction program which would have made it possible to utilize the original design;" it

., o, resulted from "NIPSCO's own departure from its original foundation design". (Supplemental Petition, p. 6.)

Again, the facts are somewhat different -- as the Commission confirmed after considering petitions filed by the Porter County Chapter Petitioners, Illinois, and Local 1

l 1010 and receiving the views of the Advisory Committee on Reactor Safegurads. All aspects of the foundation pilings were "very preliminary" at the construction permit stage and "the critical issues of pile design and spacing had explicitly been lef t for later resolution". (Northern Indiana Public Service Co. (Bailly Generating Station, Nu-clear-1) Commission Memorandum and Order (December 12, 1979),

Slip op..at 14.) The Commission' concluded that "the whole issue of pile design . . . was left unresolved at the time of construction permit issuance." (Id.) The Staff was to follow development of piles design, a course contemplated by NRC regulations (10 C.F.R. S 50.35(a).) In summary, it is clear that there was no " departure from . . . original foundation design"; the course followed was exactly that -

contemplated by the NRC and the question of who " controlled" what is simply irrelevant to the " good cause" issue.

The Petition filed by Illinois on December 20, 1979, contains a paragraph 10 (pp. 8-9), which appears to fall within this subject area. at least in part. The language

s n,'

• /

of'the paragraph is generalized but we understand it to be directed to the same point now elaborated upon in the .

Supplemental Petition--i.e., that, in order to be valid, reasons for noncompletion must have been beyond the permit holder's control. Paragraph 10 states no additional conten-tion concerning the sufficiency of the reasons cited by NIPSCO.

b. Porter County Chapter Petitioners These petitioners also contend that NIPSCO must show that the delay in completion of construction of the Bailly facility occurred for reasons beyond its control. As indicated above, that position is without merit. The is-4 sues sought to be raised in Contention 1 at pp. 3-5 rest upon the beyond-its-control premise and should also be rejected as a matter of law.--**/

i The final discussion in Contention 1 (paragraph i' beginning at the bottom of p. 5) appears more logically

• / "[T]he grounds asserted by NIPSCO . . . do not con-stitute ' good cause' within the meaning of 10 CFR i

S50.55(b) or Section 185 of the Act. . . . Those causes put forward by NIPSCO are not among those which the

Commission recognizes-as bases for extending the com-ple tion date. "

i

• • / Paragraph 10 of the Petition for Leave to Intervene filed by these petitioners on December 20, 1979, is L the same'as paragraph-10 of the Illinois petition.

j See discussion supra.

l 1

l t _- _ _ ___ _ . . _ . . _

to relate to the length of the extension sought and will be discussed below. ,

In Contention 6 (pp. 13-14), the Porter County Chapter Petitioners state'in effect that the real reasons for not completing-the Bailly facility by September 1, 1979, were that 1) a " reduced rate of growth and increased generating capacity" led NIPSCO to conclude that Bailly was not needed when previously scheduled and could be deferred and 2)

"the dramatic increase in the estimated cost of the pro-posed plant" meant NIPSCO lacked the " financial resources" to get it completed. The Petitioners further contend that those reasons do not constitute " good cause" for an exten-sion of the construction permit. The factual allegations concerning the need for Bailly and NIPSCO's " financial resources" are incorrect but even assuming their validity for the purpose of analysis, the contentions are legally insufficient. NRC precedent clearly establishes that deferrals due to financial considerations and because of changes in need for power projections can and do constitute

" good cause."~ (See cases cited on p. 29, supra.)

Finally, the Porter County Chapter Petitioners purport to find in the failure to complete Bailly by September 1979 a " lack of. thorough and adequate planning and design by NIPSCO, its contractors and subcontractors." They seek to litigate whether this alleged'" lack of competence" is 1

s

"a substantial part of the reason why Bailly was not aan-pleted . . . . (First Supplement, Contention 7, pp. 14-15.)

The fact is, of course, that NIPSCO's technical qualifica-tions were contested by these very Petitioners in the con-struction permit proceeding. The Licensing Board found that "NIPSCO is technically qualified to design, construct and operate a nuclear power plant." (Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1),

LBP-74-19, AEC 557, 568 (1974).)

The Petitioners allege that the " lack of ccmpetence" is manifested by the failure to get "[m] ore information" about the geology of the site and the design of the founda-tion for a nuclear plant to be built on that site, and the method of constructing a foundation of that design . . . .

The charge is totally lacking in specificity. It makes no reference to any standard against which " competence" is to be judged or to regulatory restrictions upon the acquis-s ition of knowledge concerning geological conditions. Thus it ignores the fact that NIPSCO "could not legally drive 4 test piles until it received its construction permit (and until it did so] the density of the soil layers, their load-bearing capacity, and the optimum design of the foundations could not be' fully determined." (Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), Memorandum

.and Order of the Commission (December 12, 1979) Slip op.,

er e-

p. 1.) It also ignores the fact that'the regulatory scheme permits issuance of a construction permit before the final design is completed.

In fact there is no regulatory requirement that founda-tion design be completed before the Bailly construction per-mit could be issued; surely, lack of competence cannot be inferred from the failure to do that which was not required.

As discussed above, when the Bailly construc-tion permit was issued pile design was in a "very prelimi-nary" stage. The Commission recognized that fact and stated it would follow the matter after issuance of the construc-tion permit. The validity of this approach was confirmed in the Commission's Memorandum and Order of December 12, 1979.

2. Is the extention re period of time"?*/ quested for a " reasonable

a. State of Illinois The Illinois Petition (December 20, 1979) contains the sentence:

[A]n extensicn of the latest completion date from September 1, 1979, to December 1, 1987, a period in excess of eight years as requested by the application and a period longer than that permitted for construction pursuant to the orig-l inal construction period, is not "a reasonable period of time," within the meaning of 10 CFR 550.55(b).

l l

i l */ See also liscussion in NIPSCO's Response to Petitions, pp. 28-32.

l l

r

(Petition, paragraph 10, pp. 8-9.) No details are provided in any Illinois pleading as to why the period requested is not reasonable; the sentence may be intended to imply that no period can exceed that specified in the original permit and yet be reasonable. No basis for the contention is identified. In its present form, the contention is not admissible.

b. Porter County Chapter Petitioners The Petition (December 20, 1979) of these petitioners contains the same language as that of Illinois quoted above. (Petition, p. 8.) In their "First Supplement,"

the Petitioners refer to NIPSCO's August 31, 1979, letter to the NRC which rec.3sL;i a longer extension than had

originally been sought and state that they " seek to liti-garn each of [the factors cited in support of the requested period] and contend that those factors do not justify the extension sought b/ NIPSCO . . . . (First Supplement, Contention 3, p. 7.) In theory, the validity of those

" factors" can properly be litigated. However, the explana-tion or elaboraticin on Contention 3 stated by Porter County Chapter Petitioners makes it clear that the conten-tion is directed tot toward the lengt_h of the extension but rather toward .the reason for needing any extension.

Thus, the. issues stated in Contention 3 all' relate to wheth-er NIPSCO has shown good cause for the extension, not to E _

.j

"O. Q.

l i

I

.the reasonableness of the period of extension. (see sum-mation on p. 8 of First Supplement.) t We submit that, within this subject area, the permiss-i ible issues must relate to whether the requested period of extension is in fact a reasonable estimate of the time {

. t which will be required to finish the construction. For j example, in the present case, does recent history show that ,

the median period for completion of reactors is 77 months from first concrete? Ilow long will be required from resump-tion of pile placement to first concrete? The alleged i reasons why the Staff has not completed its review of the piles matter has no relevance to determining the period of

! time needed for driving piles or completing constructica, j

NIPSCO's August 31 letter indicated that the schedules 1- for plants under construction may be extended by virtue of delays in NRC reviews which delays have been and are being occasioned by diversion of NRC manpower to reviews--generic and otherwise--arising from the Three Mile Island incident.

On the basis of NIPSCO's letter, petitioners contend that the extent to which TMI has caused -

L delays, and in what particulars with respect to Bailly, should.be litigated in this proceed-

, ing. If . . . generic reviews arising from 2 ~ TMI are important enough to be a cause of delay with respect to Bai]ly, Joint Intervenors con-tend those reviews and their findings, and their conclusions, must be considered with res-pect to whether good cause exists for the exten-s]nn . .. .

1 I .

- c- . ,, - - -. . - , - - . . . .- . - . -. , - - . . . , . . , . . . . - - -

(First Supplement, p. 8.) This contention, again, appears to have nothing to do with the length of the requested ex-tension. Furthermore, the second sentence seeks to liti-gate the substance of the Staff's post-TMI reviews in un-specified ways. Those subjects are unrelated to the re-quested extension and beyond the scope of the proceeding. /

We conclude that the Porter County Chapter Petitioners have failed to state an admissible contention concerning the length of the extension.

-*/ The Petitioners make essentially the same argument with respect to delays caused by compliance with new regulatory guides. (First Supplement, pp. 5-6). The disposition of this argument is identical to that presented above.

- . .- - =- - . _ - _ _-_ -.

o. o.

3. Would the grant of the requested extension require preparation of an environmental impact statement?

a. State of Illinois 3

Illinois' Contention 1 contends that an environ-i mental impact statement must be prepared because the issuance 4

of an extension is a " major federal action, which action will lead to events which will have a significant effect on the human environment. . . ." (Supplemental Petition, p. 2.)

i liowever, Contention 1 itself provides no basis for the con-tention and is purely conclusory. It does not even suggest which " events" will have a significant effect on the human environment or what that effect will be. As discussed be-low, in our opinion, an environmental impact statement is not required before the Bailly construction permit can be

/

extended.

In Contention 3 (pp. 7-11), Illinois sets out some material which may support its argument that the extension is a major Federal action which will significantly affect i

the human environment. At the risk of stating the obvious,

• / Contention 1 also makes certain assertions concerning what should be included in the environnental impact statement (pp. 2-3). We doubt whether this Board, 1 rather than the Staff, is the appropriate recipient of initial suggestions as to the content of an envir-onmental impact statement. In any event, until it 4

is determined that an impact statement is needed, the nature of its content need not be examined.

i l

we note that a determination to that effect would be pre-requisite to any decision to prepare an impact statement.

The Commission's regulations do not require preparation of an impact statement in connection with each construction permit amendment. (10 C.F.R. S 51.5(a).) The regulations acknowledge that issuance of certain license amendments may (or may not) require preparation of an impact state-ment " depending upon the circumstances." These include

. . . an amendment to a construction permit . . .

for a nuclear power reactor . . . that would auth-orize a significant change in the types of a sign-ificant increase in the amounts of effluents or a significant increase in the authorized power level.

(10 C.F.R. S 51. 5 (b) (2) . ) The Bailly construction normit ex-tension is not such an amendment.

The essential factual allegation, critical to the Illinois argument for EIS preparation, is that, with the extension, construction dewatering will be conducted for a longer period than previously contemplated and that this longer period will adversely affect ground water and flora in the National Lakeshore adjacent to the Bailly site.

NIPSCO (although disputing the validity of that alleg-ation) acknowledges that it can be fashioned into an ad-missible. contention. We hasten to emphasize that the con-tention must be limited to the incremental effects, if any,

of dewatering which is allegedly longer in duration / be-cause of the extended construction permit. It cannot be used to relitigate the effects of construction dowatering generally. That subject was litigated fully and thoroughly before a licensing board in connection with issuance of the construction permit.

This is not the first effort by Illinois and others of the present petitioners to reopen consideration of dewater-ing and its environmental effects. In 1974, the Commission reopened the record in the Bailly construction permit pro-coeding and directed that a hearing be held concerning the environmental effects, if any, of construction of the slurry wall which NIPSCO proposed to use to keep the construction excavation dry in lieu of or in addition to a well-point dowatering system which had already been evaluated in the licensing proceeding. Intervenors in that reopened pro-ceeding included the present Porter County Chapter Petition-ers and Illinois. Their efforts to introduce testimony as to the environmental effects of well-point dewatering were rejected by the Licensing Board which stated

• / In fact, the dewatering period will not be longer in duration than that previously evaluated, but that is an evidentiary matter appropriate for handling on a motion for summary disposition or through the taking of evidence.

The environmental effects of the drawdown from well-point dewatering and remedial actions available were thoroughly litigated in the basic licensing proceed-ing and this Board is bound by those determinations.

(Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), 1 NRC 61, 84, aff'd, ALAB-303, 2 NRC 858, 871 (1975).)

Contention 3.A. is therefore inadmissible as pre-sently drafted since it fails to specify the environmental effects attributable to the allegedly longer period of de-watering as distinguished from the already evaluated effects of the dewatering contemplated in the construction permit proceeding.

Contention 3.B. alleges that there are "recent pro- <

posals to reintroduce replacement water from alternative sources," implying that these are new and unevaluated and somehow associated with the construction permit extension.

That is incorrect. Mitigation of dewatering effects through introduction of replacement water was examined at the con-struction permit stage and the Licensing Board concluded that " appropriate remedial steps can be taken by the Applicant, such as adding water directly to any ponds being affected or recharging water into the ground east of the dewatering site. . . .

(Northern Indiana Public Service Co.

(Bailly Generating Station, Nuclear-1), 7 AEC 557, 590 (1974).) We submit that, in order to be admissible, any 1

7 7 - .--,.e - ,

Contention concerning mitigation of dewatering effects must be tied to the extension of the period of construction.

Contention 3.B. is not.

Contention 3.C. alleges that an additional period of dewatering "will permit a greater dilution and/or replace-ment of the natural water." (p. 10.) flowever , there is no allegation that such a fact, if true, would have any envir-onmental significance. The contention is therefore incom-plete and inadmissible as drafted.

Contention 3.D. seeks to interject "recent studies by I-the U.S.G.S." for the purpose of relitigating the overall effects of dowatering, examining "an aquifer not previously considered . . . which has direct connection with the wet-lands of the Indiana Dunes National Lakeshore considerably farther to the east than previously assumed . . . .

(pp.

10-11.) We submit that this is another attempt to relitigate I

the overall effect.s of dowatering -- a matter beyond the scope of this proceeding.

Contention 3.E. is related to health and safety con-siderations and is discussed in Section III.D.l. , infra,

b. Porter County Chanter Petitioners

.The alleg=* ions of these Petitioners concerning en-vironmental effect.2 (see First Supplement, pp. 9-13) are essen-tially'the same as those of Illinois. The Petitioners contend

that the amendment would authorize a " drastically extended period" of dewatering which will cause "further and addit-ional irreparable injury to the National Lakeshore." Since it was determined in the construction permit proceeding that there would be no irreparable injury to the Lakeshore, it is again clear that these Petitioners actually seek to re-litigate dewatering in general. (p. 9.) Porter County Chapter Petitioners further contend that the Staff must now be ordered to prepare "an environmental evaluation" (if it will not do so of its own accord). (p. 16.) To find an assertion by these Petitioners that an EIS ("or, at the very least, a supplement to the prior Final Environmental Statement") is required, one must examine their December Petition (p. 8) and the Jr int Supplement to Requests for llearing filed by the Porth County Chapter Petitioners and Illinois on June 29, 1979. (pp. 9-11.)

In the Joint Supplement, Petitioners argued that the EIS must include consideration of many subjects including need for power and increases in the projected cost of the 1

Bailly facility. (p. 10.) We believe that our response to Illinois disposes of these similar claims.

c. Local 1010 The " Petition to DLny Permit" (December 20, 1979) filed by Local 1010 also contends that the NRC must " revise 1

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its Final Environmental Statement, re-analyze the cost-benefit conclusion . . . , and re-analyze its comparison of the costs and benefits of the permit issuance . . . .

(p. 9.) The bases cited for requiring a revised FES are "recent studies on the impact of the construction and operatio'n of the Bailly plant on the . . . Lakeshore con-ducted by scientists of the National Park Service . . . ,

t

the escalating costs of constructing the facility, and a I requirement to consider energy conservation.

4 The bases of the contention are legally insufficient.

, All of these environmental issues were considered in the construction permit proceeding. Nothing in NEPA requires

! .the Board in this proceeding to reconsider the environmental analysis performed in the construction permit proceeding.

(See Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 46-47 n.4 (1978), remanded on other grounds Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979); Portland General Electric Co. , (Trojan Nuclear Plant) , LBP-78-40, 8 NRC 717, 745

~(1978), aff'd, ALAB-534, 9 NRC 287, 289 (1979).)

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D. Contentions Related to Subject Areas Which Are Outside the Scope of a Bailly Construction Permit Extension Proceeding.

In this section, we discuss a number of the contentions proposed by petitioners which, in our opinion are cicarly beyond the scope of a Bailly construction permit extension proceeding. These contenti:ns have been grouped where possible and are discussed by subject area.

1. Contentions Raising Health and Safety Issues In its contentions 7 and 8, Illinois attempts to bring to issue a host of health and safety questions ranging from review of the pile foundations to a complete review of the entire plant design. Porter County Chapter Petitioners in contentions 8 and 9 seek to have litigated issues pertaining to the Bailly pile design and TMI recommendations. The is-sucs sought to be raised are thus similar and, to avoid un-necessary repetition, we shall treat them together by cate-gories. We have previously demonstrated that radiological health and safety issues of the sweeping scope suggested by Petitioners are inconsistent with the Notice of Opportunity fer Hearing, Commission precedent, the regulations, and the Atomic Energy Act. (NIPSCO's Response, pp. 38-48.)

The scope of the hearing is restricted to whether there is good cause for an extension of the construction permit; good cause for construction of the facility is not'the issue.

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Petitioners have failed to relate the issues suggested by these contentions to the causes for the permit extension and for that reason alone such contentions should be rejected.

a. . Bailly Pile Foundation. Illinois asserta t h.it. the pile design must be. reviewed in this proceeding to deter-mine "the plant's tolerance of design basis seismic events,"

differential settlement between structures, the load bearing capacity and "other changes" which may occur due to modifi-cations in the design. (Contention 7.A, p. 15.) It also suggests that changes in the soil structure resulting from tests and borings must be reviewed. (Contention 7.B, p. 15.)

Porter County Chapter Petitioners' contention 8 is similar to Illinois and adds allegations such as that various build-ings and components will be " floating" and subject to hori-zontal, vertical and rotational differential movement. It contends that comprehensive studies of foundation design should be made before the requested extension can be granted.

(Contention 8, p. 15.)

The only reason advanced by Illinois as to why its con-

.tentions with respect to piles are appropriate in this pro-coeding is that "[s]everal of the causes of the delay in the completion of construction . . . cast doubt on NIPSCO's ability to construct a safe facility." (Supplemental Peti-tion, p. 14.) Illinois contends that under these circum-stances the Cook decision permits consideration of the pile i

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design in this proceeding. The alleged connection with NIPSCO's competence is refuted in Section III.C.l. infra.

Furthermore, Illinois' reliance on Cook in this request is misplaced. The Appeal Board in the Cook proceeding specifical-ly discussed the question of whether design changes which had contributed to a delay in construction shocic be considered in an extension proceeding and concluded:

Thus, had the design changes effect2d by the applicants in the present case, taken in conjunc-tion with other factors, not delayed the comple-tion of construction beyond the latest completion date specified in the permits, there would be no question that (absent a show cause proceeding) any safety issues associated with those changes would have been considered by the Licensing Board in the operating license proceeding--and not be-fore. It is hard to fathom why a different result should obtain simply because of the fortuitous circumstance that a combination of events--only one of which involved design changes--did require appli-4 cants to seek an extension for completion.

(6 AEC at 421.) There is no room for Petitioners to argue that any safety issues associated with the Bailly pile design cannot abide the operating license review. That question was decided by the Commission only three months ago:

It will undoubtedly be objected that a seri-ous error in the design of the pilings could, as l a practical matter, be uncorrectable if detected only after the plant is completed. This may well be so. However, it is a fundamental precept of the Atomic Energy Act, emphasized by the Supreme ,

Court in Power Reactor Development Corp. v. AEC,

. 367 U.S.-396 (1961), that possession of a con- l struction permit is not a guarantee that the li- l censee will receive an operating license. If the

utility's pilings proposal--or any other aspect of the facility--fails to pass muster at the operating review stage, the plant will simply not be allowed to operate. This risk is borne by the licensee.

(Northern Indiana Public Service Co. (Bailly Generating Sta-tion, Nuclear-1), Commission Memorandum and Order (Decem-ber 12, 1979), slip op. at 17.)

Thus, it is clear that issues concerning the pile design are inadmissible in this proceeding.

b. Generic Technical Issues. Illinois asserts that

" issues to be considered include . . . Mark II containment."

(Contention 7.C, p. 15.) It refers to the " Joint Petition for !! caring, paragraph 3" as the basis for the assertion.* /

Illinois further states that this containment has been under review for two years and that the Bailly primary containment system does not adequately meet certain requirements of the General Design Criteria. (10 C.F.R. Part 50, Appendix A.)

Contention 8 (pp. 17-20) asserts that unresolved technical

• / We assume Illinois is referring to paragraph 3 of its Joint Supplement to Request for llearing (June 29, 1979). That document states that "The Mark II contain-ment design questions are significant safety issues and may not be capable of resolution during construction."

This unsupported, general assertion does not state a specific contention, let alone one admissible in this proceeding. Moreover, the NRC has previously deter-mined and che Court of Appeals affirmed that review of the Bailly Mark II containment before the operating license review is not necessary. Porter County Chapter v NRC, 606 P.2d 1363 (D.C. Cir. 1979), aff'g, Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429 (1978).

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issues such as those listed in the "1977 ACRS list" and "NUREG-0510" are applicable to the Bailly facility and ap-propriate for consideration in this proceeding. Illinois'

. justification for c sideration of these generic issues is f simply that they are "known safety problems that relate to the design, construction and operation of the Bailly nuclear Pl ant." Illinois seems to claim that, because of the occur-rence at TMI, such generic issues are now appropriate in a proceeding for a construction permit extension. We know of no basis for that claim.

The Notice clearly states that appropriate scope of this proceeding, i.e., "whether, pursuant to 10 CFR

50. 55 (b) , the causes put forward by the Permittee are among those which the Commission will recognize as bases for ex-I tending the completion date." As noted by the Appeal Board in the Cook decision, the fundamental purpose of such a hear-ing is not to determine the safety or environmental aspects i

of the reactor in question. (6 AEC at 420.) For these rea-sons alone,. proposed contentions pertaining to generic health and safety issues should be rejected.

Additionally, Illinois has failed to establish a nexus between the requested extension and the generic issues which

! 'they seek to litigate. A mere check-list of items to bc considered is not sufficient to establish contentions in any

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proceeding. (Gulf States Utilities Co. (River Bend Station, Units 1 and 2) , ALAB-444, 6 NRC 760, 772 (1977).) There must be some connecting link between a generic matter and the specific facility in issue. A mere identification of a gen-cric review does not fulfill that obligation even if the matter has some patent relationship to the category of reac-tor under review. / (pl. at 773.)

c. TMI Recommendations. Illinois' proposed conten-tion 8 alludes to the TMI incident and asserts that "the Board should take into consideration . . . the Kemeny and Rogovin reports" on that incident. The PSAR should be re-vised to " consider . . . [s]afety issues resulting from the TMI-2 accident." An unspecified "some" of the Kemeny and Rogovin recommendations "would be pertinent." "Several" of the 23 recommendations of the Lessons Learned Task Force would also apply -- including, e.g., operator training.

(Contention 8-3, pp. 19-20.) No attempt is made to relate this contention to the Bailly permit extension or the rea-sons for the extension.

~*/ Petitioners have raised other generic issues such as ATNS and material failures. (Local 1010 Petition, pp.6-7; Joint Supplement to Requests for Hearing, pp. 7-9.) Those " contentions" contain the same defects as noted above and should similarly be rejected.

a c.

We have previously discussed the scope of this proceed-ing and will not further belabor the point here. We note only that this is not the proper forum to litigate issues pertaining to plant operations and design which are totally unrelated to the delay necessitating the requested exten-sion.

This contention is offered by Illinois without regard to the fact the post-TMI recommendations are still being evaluated by the Commission. To the best of our knowledge, none of the reports generated following the TMI occurrence recommend immediate consideration of every conceivable generic 1

i health and safety issue uhich may be applicable to the involved i facility. Certainly the Commission has not adopted such a position and has given no indication that generic issues are l-to be examined in the course of construction permit exten-sion proceedings.

Porter County Chapter Petitioners' contention 9 states that "the determination of whether or not to grant an exten-sion . . . must take into account, discuss and consider" the TMI accident, including " safety considerations."-/ It is t,hus even more general than the Illinois contentions and falls woefully short of meeting the specificity require-

• / ' To ' the extent this contention attempts to raise the issue of Class 9 accidents, it is addressed in Sec-tion III.D.3., infra.

ments'of 10 C.F.R. S 2.714. Whatever is intended to be put in issue is unrelated to.the permit extension and beyond the scope of this proceeding.

d. Plant Design. Illinois' proposed contention 7.D.

i-states that the Bailly design will be fifteen years old at i

the operating license stage and must therefore be re-reviewed in this proceeding. Illinois seeks to re-review the Bailly design against, for example, " current regulatory guides, the pressure vessel code criteria," and "the numerous recommen-dations resulting from TMI." / (p. 17.)

This contention is not admissible for several reasons.

! First of all, a complete safety evaluation of Bailly was performed during the construction permit proceeding.- / An extension proceeding is not the appropriate forum for re-evaluating the safety of the entire plant.

The fundamental purpose of [an extension] hearing is, after all, not to determine the safety or environmental aspects of the reactor in question.

(Cook, supra, 6 AEC at 420. See also Portland General Elec-tric Co. (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717, 745 (1978).) Consequently, this contention is inadmissible to the extent that it requests a new safety evaluation of Bailly.

• / The " contention" requesting an analysis of the plant's post-accident monitoring capability in light of Regula-tory Guide 1.97 can also be placed in this category.

(Local 1010 Petition, p. 4; Joint Supplement to Requests Lfor Hearing, pp. 6-7.)

• • /. 7.AEC at 561-586.

To the extent that the contention only seeks a "re-review" of selected systems for which regulatory criteria have changed since the issuance of the construction permit, the contention lacks specificity and basis, and thus fails to meet the requirements of S 2.714 (b) . It does not identify which systems are subject to new regulations and it fails to indicate which systems are deficient when measured against these new regulations. As presently worded, the contention totally fails to inform the parties and the Board precisely what the Petitioner desires to litigate and must be rejected.

Moreover, even if the contention did contain the requisite specificity, it would still be beyond the scope of this pro-ceeding as defined by the regulations, the Notice of Oppor-tunity for Hearing, and Commission precedent. The conten-tion does not identify any of the plant's systems or any new regulations which are relevant to the extension or to the causes of the delay in construction. Additionally, Illinois failed to justify why consideration of this issue could not be deferred until the operating license proceed-ing, except to note that deferral would make "the [NRC]

staff's review more difficult and more time-consuming." (p.

16.) _ This'does.not appear to be the type of justification the Appeal Board had'in mind when it stated that a licensing-board could consider only those safety issues which would not " appropriately abide" the operating license proceeding.

(Cook, supra, 6 AEC at 420.)

s 4

In support of its contention that a new safety evalua-

. tion must be performed, Illinois states [i]n keeping with

'the River Bend decision and because of the extensive delays experienced and forecast in the Bailly construction, this re-review should be completed prior to recommencing construc-l tion." We assume Illinois is referring to Gulf States Utili-I ties Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760 (1977). If so, its reliance is misplaced. The 4

River Bond Appeal Board specifically recognized that not all

unresolved safety issues need be resolved at the construction permit stage of licensing. The construction permit proceed-ing is part of the bifurcated Commission licensing system which permits resolution of safety issues to be deferred un-til the operating license stage, thereby accommodating changes in design and regulations which occur between the issuance of the construction permit and the operating li-cense review. (Power Reactor Development Co. v. IDE, 367 U.S. 396 (1961).) Thus, it is apparent that the River Bend decision supports rejection of Illinois' contention rather than its admission.

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2. NIPSCO's Present Technical Competence ,

We have discussed in Part III.C.l. above, Porter County Chapter Petitioners' assertion that the failure to complete Bailly by September 1979 was caused in part by NIPSCO's lack l of competence in connection with planning and design. Illinois makes a somewhat similar contention which can, however, be read as referring not to the cause of past delays, but rather to NIPSCO's present technical competence. Illinois

! contends that "[u]nless NIPSCO and its contractors prove I that they are technically competent the Board cannot find

/

I good cause to issue a construction permit extension."

This contention is inadmissible. The present technical

' competence of NIPSCO is irrelevant to this proceeding.

Obviously, NIPSCO's alleged inability to construct a safe plant at the present time cannot be the cause for the past delay in construction. Thus, under the ruling in Cook, the current technical competence of NIPSCO is outside of the scope of this proceeding because it is not related to a reason for the extension. To the extent that the contention may relate to present incompetence, it is inadequate for the same reasons as Porter County Chapter's contention.

1 NIPSCO's technical qualifications were contested in the construction permit proceeding. The Licensing Board found

• / Supplemental Petition, p. 13.

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that "NIPSCO is technically qualified to design, construct I

and operate a nuclear power plant." (7 AEC at 568.) Whether the contentions are phrased in terms of the past or the present, it is clear that the Petitioners simply wish to relitigate the same issue without adequate grounds for doing so.

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3. Class 9 Accidents Several Petitioners *

/ desire to litigate the environ-

mental and safety aspects of a Class 9 accident. For some years , the Commission's policy--/ has been that the environ-mental aspects of a Class 9 accident need not be considered unless a party can establish that the probability of a Class 9 accident at a particular facility is not extremely low, or that other special circumstances exist. (See, e.g.,

l 1 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2) , ALAB-137, 6 AEC 491, 502 (1973).)

In Offshore Power Systems (Floating Nuclear Power Plants), CLI-79-9, 10 NRC 257 (1979), the Commission ordered the NRC Staff to inform it of "any individual [ land-based]

cases in which it believes the environmental consequences of Class 9 accidents should be considered . . ., " pending completion of a rulemaking proceeding concerning such acci-dents. (10 NRC at 263.) While this order also authorized the consideration of Class 9 accidents for floating nuclear

• / Porter County Chapter Petitioners' First Supplement,

p. 16; Illinoid Supplemental Petition, pp. 12, 17-20; Local 1010 Petition, pp. 4-5; Petition for Leave to Intervene (Porter County Chapter Petitioners), p. 7; Petition for Leave to Intervene (Illinois) p. 8; Joint Supplement to Requests for Hearing, pp. 4, 10.

• • / Proposed Annex A to Appendix D, 10 C.F.R. Part 50, 36 Fed. Reg. 22,l51 (1971).

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d plants, it did not provide licensing boards with a grant of i

jurisdiction to consider Class 9 accidents in connection with i

land-based plants. (Public Service Co. of Oklahoma (Black Fox Units 1 and 2) , ALAB-573 (December 7, 1979), slip op.

, at 31.) To the contrary, the Appeal Board has recently stated that:

. Pending completion of a rulemaking proceeding con-templating the establishment of a new general policy on this subject, the Commission has reserved to it-self the right to decide whether Class 9 accidents may be considered in proceedings involving land-

based plants.

(Florida Power & Light Co. (St. Lucio Nuclear Power Plant, Unit No. 1) , ALAB-579 (February 14, 1980), slip op. at 3-4, L footnote omitted.) Consequently, the Petitioners' conton-tions that Class 9. accidents in general must be considered 7

in this proceeding clearly are inadmissible.

It might be possible to construe the Petitioners' con-tentions as alleging that a THI-type Class 9 accident is not of extremely low probability at Bailly. Assuming the Board had authority to consider it, such a contention might be said to allege a special circumstance sufficient to trigger a Class 9 accident analysis. (See Pennsylvania Power and Light Co. (Susquehanna Steam Electric Generating Station, Units 1 and 2), LBP-79-29 (October 19, 1979).) However, the. Peti-tioners have not established a reasonable nexus between a TMI-type Class 9 accident and the extension or the causes

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of delay in construction. Consequently, an analysis of Class 9 accidents is outside of the scope of this proceeding.

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4. Emergency Planning Several Petitioners / contend that emergency planning

_and evacuation should be litigated in this proceeding. As NIPSCO pointed out in its January 18, 1980, Response (pp.

43-45), the scope of this construction permit extension proceeding has been clearly defined by the Notice of Opportunity for Hearing. It is limited to the causes of the delay and does not include the issue of emergency plan-i ning and evacuation. That issue was considered in the construction permit proceedings and the emergency plans

! were found to be adequate.**- / Under existing regulations further consideration of the issue is not required until the operating license review. Additionally, the matter is one which is clearly barred from consideration under Cook.

Gary Petitioners' appear to believe that emergency planning is an issue which should be relitigated and that this proceeding is a convenient forum for doing so. How-ever, under existing circumstances it would be wholly in-appropriate to consider the matter in this proceeding.

• / Contention of Gary Petitioners, p. 1; Schultz amended l Petition, pp. 2-4; Illinois Supplemental Petition,

p. 4. ,

• • / Hearing on Construction Permit, Tr. 625-724 (October 12, 1972); Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), LBP-74-19, 7 AEC 557, 568-69 (1974).

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l Emergency planning is the subject of a current rule-making proceeding before the Commission. (44 Fed. Deg.,

75, 167 (1979).) At this time, it cannot be known regulations will emerge from the proceeding and how they would impact facilities the construction of which was authorized earlier. Consequently, emergency planning is

' not an issue to be litigated in this individual adjudi-catory proceeding, (Potomac Electric Power Co. (Douglas Point' Nuclear Generating Station, Units 1 and 2) , ALAB-218, 8 AEC 79, 85 (1974); Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), Docket No. 50-312, Referral of a Licensing Board Ruling to the Atomic Safety and Licensing Appeal Board (December 14, 1979).) Litigation of the issue now would not foreclose relitigation when those regulations become final. This would be the kind of " wasteful duplication of effort" which the Appeal Board has condemned. (Douglas Point, supra, 8 AEC at 85.)

The Commission expressly stated in the notice of rulo-making on emergency planning that it "is considering whether construction permits which have already been issued should be reconsidered because of the emergency planning considera-tion of this rule." (44 Fed. Reg. 75,167, 75,170.) Until the the Commission reaches a determination on this issue, it would be entirely inappropriate for this Board to step in and

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take over responsibility which the Commission has stated it

. will discharge.

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5. New Siting Policy Several petitions have suggested that the Bailly site should be re-evaluated in this proceeding.* / As a basis for their contentions, the_ Petitioners recite such developments as the increase in population in the areas surrounding the

plant, the publication of such documents as the Report of i

the Siting Policy Task Force (NUREG-0625) and Regulatory Guide 4.7, and NIPSCO's alleged inability to compensate for site characteristics. The Petitioners coratend that NIPSCO cannot establish " good cause" for an extension unless it can. prove that the site conforms with the standards in 10 C.F.R. Part 100, Regulatory Guide 4.7, NUREG-0625, "and any oodier NRC policies and regulations that control siting cri-teria."-** /

Evidently, the Petitioners are requesting that this 4

Licensing Board perform a completely new site analysis for Bailly. However, the Bailly site was fully reviewed at the construction permit proceeding and exhaustively considered

• • • /

in the initial decision on the construction permit.

• / Illinois Supplemental Petition, pp. 3, 13-14; Petition for Leave to Intervene (Illinois), p. 7; Petition for

. Leave to Intervene (Porter County Chapter Petitioners) ,

p. 7; Joint Supplement to Requests for Hearing (Illinois and Porter County Chapter Petitioners), p. 10.

• • / Illinois Supplemental Petition, p. 14.

• • • /- Nortl'ern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1,.LBP-74-19, 7 AEC 557, 562-66 (1974).

. 14

Nothing requires it to be re-reviewed in this proceeding.

(See Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 46-47 n.4 (1978), remanded on other grounds, Minnesota v.

NRC,-603 F.2d 412 (D.C. Cir. 1979).) .

The Petitioners' principal concern appears to be the alleged inability of the Bailly site to satisfy the criteria of MUREG-0625. But NUREG-0625 is a report of the Siting Policy Task Force, not a regulation. Its recommendations have not been adopted by the Commission and its policies are not applicable to applicants or licensees. The Commis-sion contemplates establishing revised siting criteria but, under the present schedule,no criteria will be proposed before the fall of 1980 or effective before the fall of 1981 and no decision has been made as to the application to already licensed sites of whatever criteria may be devel-oped. (Meeting of United States Nuclear Regulatory Commis-sion, " Continuation of Discussion of Siting Policy Issues" (February 25, 1980), Tr. 45-52.)

Neither an increase in population nor the publica-tion of new regulatory guides or other documents has any relationship to the extension or the causes of delay in

-construction. Siting contentions are not admissible in this proceeding.

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1 L 6. Indiana Dunes National Lakeshore Legislation The effect on the Bailly project of legislation creat-L l

ing the.Lakeshore was thoroughly. considered in the conutruc-tion permit proceeding. (7-AEC at 626-27.) The Licensing I Board reviewed the legislative history of the Lakeshore legis-lation and concluded that it supported the proposition that

" industrial growth should go ' hand in hand' with environ-mental protection." The Board further found that the then existing legislation did not restrict the construction of

the Bailly facility. (pd. at 627.) This finding was affirmed by the Appeal Board (8 AEC 244, 261-65) and ulti-mately by the Court of Appeals for the Seventh Circuit.

(Porter County Chapter v. AEC, 533 F.2d 1011 (7th Cir.

1976).) ,

> Local 1010's Petition now seeks to examine in this pro-cceding the. " impact and effect on the validity of the construction permit of Public Law 94-549 . . . ." (Con-tention 10, p. 7.) That legislation directed the Secretary of the Interior to prepare a study and issue a report to Congress by July 1, 1977, concerning various parcels of pro-

_ perty including a portion of NIPSCO's property at the Bailly site.. It is the most recent legislation concerning the NaSional Lakeshore which has been enacted.

A review of Public Law 94-549,.its legislative his-i: , tory, and the subsequently ~ issued report discloses no change r

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1 in the originally expressed Congressional intent. Indeed, during debate on the bill, Senator Bayh stated that the "ac-tions of the Indiana Senators and the Congress with respect to [the NIPSCO property] are not to be construed as an ex-pression of Congressional approval or disapproval of the construction permit issued by the Nuclear Regulatory Com-mission for construction of a nuclear powerplant at the Bailly site . . . ." (122 CONG. REC. 32,315 (1976).) In view of the legislative history of the various park bills, it is difficult to perceive how Public Law 94-549 could have any bearing upon the requested construction permit ex-tension; certainly, Local 1010 makes no attempt to link them.

Instead, it is Local 1010's position that this legislation should be reviewed in this proceeding to determine its of-fects-on the validity of the Bailly construction permit.

The validity of the permit is not a proper issue in this proceeding.

We note that this identical issue was previously in-cluded in.a request for show cause proceeding instituted by many of the present petitioners (not including Local 1010). (Request to Institute a Proceeding, and Motion to' Suspend and Revoke Construction Permit No. CPPR-104,

p. 28 (November 24,_1976).) Both the Director, Office of

' Nuclear Reactor Regulation, and the Commission refused to institute a proceeding to e amine this issue or any other

o 3

. U It is difficult to conceive of alleged in that petition.

any basis upon which such an issue could be admissible in this limited proceeding.

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• f Office of Nuclear Reactor Regulation Response to Re-quest for Order to Show Cause Regarding Bailly Genera-3 ting Station', Nuclear-1 (April 15, 1977) aff'd; North-ern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429 (1978).

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7. Occupational Exposure 1 Porter County ~ Chapter Petitioners , Illinois, and Local

, 1010 have cach raised an identical contention regarding d

occupational exposures incurred in mitigating "less-than-Class 9 accidents."* / 'This contention is extremely vague i- and unspecific and it is difficult to ascertain precisely what the Petitioners desire to litigate. If they are 1 -

alleging that NIPSCO's health physics procedures for governing tdua conduct of workers do not meet the as-low-as-reasonably-achievabic standard, they have not indicated which procedures they believe are inadequato nor have they provided a basis for their beliefs. If the Petitioners are alleging that workers will incur excessive doses because the plant has been improperly designed, they have not indicated which particular systems at Bailly are-inadequate and have not revealed a basis for the allegation of insufficiency. The I

mort assertion that problems have been experienced previously does_not qualify as a valid contention.

(See Consumers l'

Power Co. (Palisades Nuclear Plant) , LDP-79-20, 10 NRC 108, i

123 (1979).)

i 'Moro fundamentally, of, course, the Petitioners have not

,' attempted to draw any connection betwoon excessive occupa-tional exposures and the causes of the delay in construction.

• /' Joint Supplement to Requests for llearing, p. 8; Petition to Deny _ Permit, p. 6.

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.v xO y.e4 This contention is outside the scope of this proceeding and must be rejected.

8. Spent Fuel Pool Size Porter County Chapter Petitioners, Illinois, and Local 1010 also have each raised an identical contention which in substance alleges that Bailly's spent fuel pool is not of adequate size.~*/ The contention is immaterial to any appli-cable legal standard. To the extent that NIPSCO ray be re-quired at some future date to apply for an amendment to expand the capacity of its spent fuel pool, the environmental and safety consequences of such an mmendment need only be considered if and when such an amendment is requested.

(Minnesota v. NRC, 602 F.2d 412, 416 n.5 (1979).) Finally, the size of the spent fuel pool is completely irrelevant to the extension and to the causes of delay in construction.

This contention is inadmissible.

• / Joint Supplement to Requests for llearing, p. 8; Local 1010 Petition, p. 7.

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,f f IV. Conclusion For the foregoing reasons, NIPSCO submits that each of the petitions to intervene and requests for a hearing should be denied.

Respectfully submitted, William H. Eichhorn, Esquire EICHHORN, EICHHORN & LINK 5243 Hohman Avenue Hammond, Indiana 46320 Kathleen H. Sliea , Esquire Steven P. Frantz, Esquire LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, NW Washington, D.C. 20036

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BY: M WILLIAM H. I$ICHRORN BY:

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KATHLEEN 11. SHEA I

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UNITED STATES OF AMERICA '

LUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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

) (Construction Permit Bailly Generating Station, ) Extension)

Nuclear 1 )

CERTIFICATE OF SERVICE I hereby certify that copies of "NIPSCO Response to Supplemented Petitions to Intervene," dated March 7, 1980, were served on the following by deposit in the United States mail, postage prepaid, or by hand delivery this 7th day of March, 1980.

Herbert Grossman, Esq. Steven Goldberg, Esq.

U.S. Nuclear Regulatory Of1 Ace of the Executive Commission Legal Director Washington, DC 20555 U.S. Nuclear Regulatory Commission Glenn O. Bright Washington, DC 20555 U.S. Nuclear Regulatory Commission William J. Scott, Esq.

Washington, DC 20555 Dean Hansell, Esq.

Assistant Attorney General Richard F. Cole Environmental Control Division U.S. Nuclear Regulatory 188 West Randolph Street Commission Suite 2315 Washington, DC 10555 Chicago, IL 60601 Docketing and Service Section Robert J. Vollen, Esq.

Office of the Secretary c/o BPI U.S. Nuclear Regulatory 109 North Dearborn Street Commission Suite 1300 Washington, DC 20555 Chicago, IL 60602 Howard K. Shapar, Esq. Edward W. Osann, Jr., Esq.

Executive Legal Director One IBM Plaza U.S.' Nuclear Regulatory Suite 4600 Commission Chicago, IL 60611 Washington, DC 20555 3

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Robert L. Graham, Esq. Richard L. Robbins, Esq.

One IBM Plana 53 West Jackson Boulevard 44th Floor Chicago, IL 60604 Chicago, IL 60611 Mr. George Grabowski Mr. Mike Olszanski Ms. Anna Grabowski Mr. Clifford Mezo 7413 W. 136th Lane United Steelworkers of Cedar Lake, IN 46303 America 3703 Euclid Avenue Stephen Laudig, Esq.

East Chicago, IN 46312 445 N. Pennsylvania Street Suite 815-816 Diane B. Cohn, Esq. Indianapolis, IN 46204 William B. Schultz, Esq. '

Suite 700 Dr. George Schultz 2000 P Street, NW 110 California Washington, DC 20036 Michigan City, IN 46360 4

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Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, NW Washington, DC 20036 e

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