ML19323H088

Response to NRC & Util Reply to Petition to Intervene, Submitted by City of Gary,In,United Steelworkers of America,Local 6787,Bailly Alliance,Save the Dunes Council & Critical Mass Energy Project.Draft Affidavits Encl

ML19323H088
Person / Time
Site:	Bailly
Issue date:	02/26/1980
From:	Cohn D, Schultz W PUBLIC CITIZEN LITIGATION GROUP
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19323H085	List: ML19323H084 ML19323H086 ML19323H087 ML19323H088
References
NUDOCS 8006110382
Download: ML19323H088 (20)

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_(j UNITED STATES OF AMERICA NUCLEAR 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 COMMISSION )

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

REPLY TO NRC STAFF AND NIPSCO RESPONSE 4 TO PETITION FOR LEAVE TO INTERVENE Pursuant to the notice published at 44 F.R. 69061 (November 30, 1979), the City of Gary, Indiana, United Steel-workers of America Local 6787, the Bailly Allia'nce, Save the Dunes Council, and the Critical Mass Energy Project have peti-tioned to intervene in this construction permit extension proceeding. The NRC staff and the Northern Indiana Public Service Commission ("NIPSCO") have opposed intervention on the grounds that petitioners have failed to demonstrate an interest that could confe r standing to participate in this proceeding or one that falls within the scope of the required

" good cause" finding of 10 C.F.R. S 50.55(b).

Pctitioners-hereby supplement their petition to intervene by' addressing both of those contentions.

1. Petitioners Have Standing to Intervene.

In its response, the-NRC staff does not challenge.tlie standing of the City of Gary, Indiana to' intervene in this 8 00611MY g

l proceeding, given its governmental character and proximity to the Bailly site.' NRC Response at 27. NRC challenges the standing of the remaining petitioners, however, on the grounds that they are general "public interest" organizations which

- have not demonstra ted as a factual matter that the personal interests of their individual members will.be affected by this proceeding. I cl . While petitioners Steelworkers Local 6787, Save the Dunes Council and the Bailly Alliance alleged in their original filing that they have sought intervention on behalf of their members whose health and safety will be directly affected by the outcome here, these petitioners sup-plement their allegations with the affidavits attached hereto, demonstrating both that they are authorized to appear on be-half of their individual members, and that their members will. suffer " injury-in-fact" should an extension of the con-struction permit be granted. -1/

The U.S. Supreme Court recently clarified the " injury-in-fact" test in Duke Power Co. V. Carolina Environmental Study Group, 438 U.S. 59 (1978). In that case, the plaintiffs who resided near a nuclear plant under construction were found to have standing due to the risk of future radiation injury from the routine emissions of a nuclear reactor. Just as 1/ Petitioners' affidavits have been approved by-each of the individual representatives of the petitioner groups, but due to the short time available, counsel has not yet received # the As soon as they are received, executed

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executed originals.

copies:will be filed and served on all parties.

l "the emission of non-natural radiation [from a nuclear reactor is a] direct and present injury, given our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about emissions like those concededly emitted by nuclear power plants," Duke Power Co., 438 U.S. at 74, the risk posed by completion of a plant at a site where surrounding populations cannot be readily evacuated is also a direct and present injury to persons living and working nearby. See also United States v. SCRAP, 412 U.S. 699 (1973). As the Supreme Court further stated in Duke Power, parties have demonstrated " injury-in-fact" if they can then show that there is a " substantial likelihood" that they will benefit from the relief they seek. 438 U.S. at 72. Petitioners here will benefit if NIPSCO's request for an extension is denied, since i

their health, homes, and jobs will not be put at risk if con-struction of Bailly is discontinued.

As the, petitioners' affidavits show, these organizations represent individuals who reside or work in, or who regularly visit for recreational purposes, areas in close proximity to the Bailly site. United Steelworkers of America' Local 6787 represents approximately 6,000 workers ~ employed adjacent to 4

the site, the Bailly Alliance represents citizens who live veryoncar to, in many cases within-a few miles of, the plant, and Save the Dunes Council represents the interes.s of thousands of visitors to the Indiana Dunes Mational Lakeshore, which

-borders ~the Bailly site. All three groups are membership i

organizations, whose members have,.either directly or through j 1

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their elected representatives, authorized Local 6787, Save the Dunes Council and the Bailly Alliance to represent their-i respective interests in challenging Bailly in this proceeding on the grounds of the lack of emergency. response capability.

See Affidavits of David C. Wilborn, Charlotte Read, and Jack 4 Weinberg, attached hereto as Exhibits A, D, and C. As the .

URC staff recognizes (Response at 6) and as the Supreme Court has made clear, such organizations have standing so long as i their members, or any one of them, suffer the injury complained of. Warth v. Seldin, 422 U.S. 490, 511 (1975). Petitioners i have demonstrated that they represent a health and safety

' interest of their members that will be affected by the outcome of this proceeding, and thus have standing to proceed.

The Critical Mass Energy Project seeks discretionary intervention in these proceedings, on the grounds that its f

expertise with-respecb to the issue of emergency planning will contribute substantially to the development of a sound record.

See Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976). As the i

attached affidavit of. Richard Pollock demonstrates (Exhibit D),

I Critical Mass has participated in numerous proceedings before. i NRC and-Congress on the issue of emergency-planning, has served

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_ as. consultant to special NRC study groups relating to emergency planning, and-has assisted local governments in conducting emergency evacuation drills.

5 Critical Mass has no, property or i

other' financial interest in this proceeding, but its aim in promoting: consideration of-emergency planning and proper siting j

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in the commercial licensing process may be affected ".;y the outcome here. Given its expertisc, CMEP's participation will enhance, not delay, the proceeding, particularly if intervention as of right is granted to other petitioners who seek to partici-pate with respect to the emergency planning issue.

2. Consideration of Whether Bailly is Evacuable in the Event of a Nuclear Accident is Properly Within the Scope of this Proceeding.

The NRC staff and NIPSCO contend that, even if petitioners can demonstrate a health and safety interest that would confer standing to intervene, their interest in emergency planning is ,

not cognizible within the scope of this proceeding. They suggest that NIPSCO should now be permitted to proceed to construct an entire plant, and that only at the operating license stage should the question of emergency response' capability be addressed.

Petitioners submit that it would be contrary to the Atomic Energy Act and to all notions of protection of the public interest to con-sider only after a plant has been built whether it has been built in a safe place.

The Atomic Energy Act has created a mechanism for triggering public scrutiny through hearings at various stages of the licen-sing process. Section 185 provides that if construction of a

' facility is not completed by a date specified in the construction permit, "that permit shall expire and all rights thereunder'. . .

forfeited . . .." A presumption is'thus created which requires the applicant to make a showing of " good cause" to overcome a l statutory bar to completion. And the Appeal Board has specifically

b recogni cd in the decision upon which the NRC staff so heavily relies, that a finding of " good cause" may require consideration of safety or environmental issues beyond.the narrow question of the applicant's excuses for non-completion, if the " totality of the circumstances" demonstrate in a particular case.that consideration is "necessary in order to protect the interests of intervenors or the public interest." Indiana and Michigan Electric Company, 6 AEC 414, 420 (1973).

The fundamental question of whether a plant proposed to be built in a highly populated area is c=pable of being safely evacuated in the event of a nuclear accident is one which, we submit, cannot reasonably abide eventual review at the operating license stage. The NRC staff's contention that it is only the i

utility ~that bears the risk of deterring such consideration until after full construction of the plant ignores the effect on the equities of the question of whether a plant is 1% constructed, or 99% complete. Moreover, such an approach ignores the implication for utility.ratepayers of the question of who will bear the-costs of an eventual decision, after construction is complete, that the Bailly site cannot be safely evacuated'and thus that'the plant will never operate.

While NIPSCO and the NRC staff contend.that the issue of emergency response capability was preliminarily considered at i the time a construction permit for Bailly was issued, this argument i~gnores the fact that even:the NRC now concedes'that its-prior requirenents on emergency planning were inadequate.

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As NRC' stated 1recently in issuing propose'd rules, the Commission t

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s now regards " emergency planning as equivalent to, rather than secondary to, siting and design in public protection," a position which it acknowledges is a " depart (urel from its prior regulatory approach to emergency planning." 44 F.R. 75169 (Dec. 19, 1979).

In contrast to Bailly's 2,400 meter low population zone, the Commission has now proposed that an emergency p'lanning zone of at least 10 miles serve as the minimum distance from a plant within which workable evacuation must be a condition of operation.

Although experts contend that even this figure is too low, ! it is at least clear that the Commission now views its prior standards, upon which emergency response capability at Bailly was considered .

in only the most limited way, as wholly inadequate. -3/

The NRC staff and NIPSCO suggest that the Board need not address the emergency planning issue in this proceeding because petitioners can alternatively seek the initiation of a 2/ See the recently released Rogovin Report, Three Mile Island, K Report to the Commissioners and to the Public, at p. 131.

3/ The Commission's reevaluation of its prior standards stemmed in large part from the accident at Three Mile Island. See 44 F.R.

at 75169-75170. Even NIPSCO suggests that TMI has given rise to changed circumstances which are relevant to the question of whether " good cause" for'an extension exists, by stating that additional time will be required due to " indications that NRC reviews arising from the Three Mile Island incident will extend the schedule of all plants under construction." If issues arising from the accident at TMI can' provide the basis for granting more time for construction to proceed, they are equally relevent for A' showing why " good cause" exists for denial of an extension.

new consideration of emergency preparedness is clearly. required as a result of Three Mile Island.

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show cause proceeding pursuant to 10 C.P.R. S 2.206. It is plain, however, that petitioner's rights to develop a record through hearing procedures are far more circumscribed under the alternative NIPSCO and the staff suggest. Moreover, under part 2.206, the burden would not be on NIPSCO to demonstrate that Bailly can be safely operated, which is where the burden should lie, but upon petitioners to demonstrate that construction should not continue. Such a proceeding could also be duplicative of~

effort which the Licensing Board will expend in the current proceeding. Most importantly, however, it is petitioners' view that the public health and safety demand that construction at Bailly simply should not continue until it has been determined that evacuation is possible around th'is site, and petitioners shou'd not be directed to pursue alternative and possibly time-consuming review routes when the Board is considering approval of a construction permit extension at this time.

For all of these reasons, the contention raised by petitioners, i.e., that NIPSCO cannot demonstrate " good cause" for an extension absent a showing that realistic evacuation and emergency plans can be implemented, is an appropriate aspect of this proceeding which petitioners should be permitted to address.

Respectfully submitted, 4 heh ka-

~ Diane B. Cohn G M.~. B. 5 M William B. Schultz

Suito 700 2000 P Street, N.W.

Washington, D.C. 20036 (202) 785-3704 Attorneys for Petitioners February 26, 1980 i

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,. .q Exhibit A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

. BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NORTHERN INDIANA PUBLIC ) DOCKET NO. 50-367 SERVICE COMPANY )

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

AFFIDAVIT OF DAVID C. WILBORN David C. Wilborn declares and stetes as follows:

1. I am President of the United Steelworkers of America Local Union 6787, which is seeking to-intervene in this construction permit extension proceeding.

2. Local 6787 represents approximately G,000 em-ployees of the Bethlehem Steel Company's Burns Harbor Plant, whichlis'immediately adjacent to the site of the Bailly One NucleakGeneratingStation.

3. In the event of a nuclear accident at Bailly, the health and jobs of these members of Local 6787 would be seriously threatened. This fact is compounded by the lack of adequate evacuation plans to protect employees of the Burns Harbor Plant in the event that an accident should occur.

4. For~this~ reason, on April 5, 1979, a meeting of the

' general membership overwhelmingly approved a resolution autho-rizing the officers and executive board of Local 6787 to take appropriate-action to challenge the construction of Bailly in

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view of the lack of emergency evacuation planning. A true I

. . W ,q copy of the resolution is attached to this affidavit.

5. Because of the risk to the health'and livelihood of the members of Local 6787, NIPSCO's request for a construc-tion' permit should be denied unless it can demonstrate that realistic evacuation and emergency, response plans can be ,

implemented.

In accordance with 28 U.S.C. S 1746, I declare under penalty of perjury that the foregoing is true and correct.

Executed on . .

David C. Wilborn

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Whereas: The Northern Indiana _Public Service Company proposes to build the Balliy Nucicat One Generating Station on a site immediately adjacent to Ecth-lehem Steel's Burns liarbor Plant and Whereas: The recent Nuclear accident at Three Mlle Island Nuclear Generating Station near llarrisburg, Pennsylvania is, although the most serious, only thF latest.in a long series of accidents in Nuclear Power Generating facilities, and Whereas: Such an accident, should it occur at the proposed Bailly Nuc1 car One ,

- Plant would seriously threncen the health, and jobs of the members of Local 6787 working at the Burns llarbor Plant and .

Whereas: If in the evant of such an accident the evacuatiun of the employees of Bethlehem Steel shovild become necessary, the present evacuation plan would prove inadequate in that it is inspecific, out of date, and un-tested, and Whereas: The radioactive emissions of nuclear generating facilities in normal operation have been shown to cause significant and unacceptable in-creases in the rates of cancer, genetic birth defects and inf ant mor-

• tality among populations immediately surrounding the plants and Whereas: It is the responsibility of Local 6787 USWA to protect the lives, health and jobs of its membe.rship and the surrounding community.

Therefore be it resolved that, .

The membership of Local 6787 USWA hereby gues on record as being opposed to the construction of the Dailly Nuclear One Generating Station and hereby in-structs, the of ficers and exegt,itive board of Local 6787 USWA to take whatever ac-tions it deems necessary to stop the construction of Bailly Nuclear One including j accepting the offer of the Public Citizen's Litigation Group to take legal action against NIPSCO and the Nuclear Regulatory Commission in regard to the proposed evacuation plan for the Burns liarbor Plant. .

LABOR DONATED

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Exhibit 13 I

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING BOARD -

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-In The Matter of )

)

NORTHERN INDIANA PUBLIC ) DOCKET NO. 50-367 SERVICE COMPANY )

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

AFFIDAVIT OF CHARLOTTE READ Charlotte Read declares and states as follows:

1. I am a member and Executive Director of Save the Dunes Council, a'27-year old membership organi,zation established for the solo purpose of preserving and protecting the Indiana Dunes for public use and enjoyment. In the 2-1/2 decades since the group's formation, we have spearheaded citizen efforts to pass legislation establishing the Indiana Dunes National Lakeshore in 1966, and enlarging it in 1976. We are currently engaged in similar efforts to pass federal legislation which would'again enlarge the-park.

2. Save the Dunes Council seeks to intervene in these proceedings on' behalf of.its approximately 2000 members who are visitors to, and users and supporters of the Indiana Dunes National Lakeshore. Some of the members of the Council,

. including myself, also reside within or near the boundaries of the Lakeshore.

3. The' continued enjoyment ~of the Indiana Dunes is now threatened by construction _of the Bailly One Nuclear-Generating e ge+ e4 _-

Station. The Indiana Dunes National Lakeshore extends east, west, and south of the site of the proposed Bailly. nuclear plant, with the boundary of the Lakeshore's Cowles Bog Area lying a mere 800 feet from the site of the reactor building.

Despite the close proximity of Bailly to the Lakeshore, which .

attracts thousands of visitors each day during peak season, it has never been shown that these populations could se evacuated within'a reasonable time in the event of a nuclear accident. Of course, due to the fact that the Lakeshore is located directly adjacent to the Bailly site, visitors to the lakeshore could be unknowingly exposed to radiation in .

the event of a release before any evacuation measures can be undertaken.

4. Because of the lack of consideration given emergency planning, on September 5, 1979, the Board of Directors of Save the Dunes Council, which is elected by our general member-ship,. voted to take all appropriate action to oppose construction of Bail.ly. The Board voted specifically to join the City of Gary, Indiana, United Steelworkers Local 6787, the Bailfy Alliance, and the Critical Mass Energy Project in petitioning the Nuclear Regulatory Commission to stop construction, unles3 and until.it has been demonstrated that evacuation of the Lakeshore can be accomplished in the event of a nuclear accident.

5. Unless NIPSCO makes such a showing in this proceeding, Save the Dunes Council contends that the requested construction

permit-extension should be denied.

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In accordance with-28 U.S.C. S 1746, I I declare under penalty of perjury that the foregoing is true and correct. Executed i

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. Exhibit C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In The Matter of )

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NORTilERN INDIANA PUBLIC ) DOCKET NO. 50-367 SERVICE COMPANY )

(Construction Permit (Bailly Generating Station, )

Extension)

Nuclear 1) )

AFFIDAVIT OF JACK WEINBERG Jack Weinberg declares and states as follows:

1. I reside at 7515 Oak Avenue in the City of Gary, -

Indiana. My residence is located approximately 8 miles from the proposed site of the Bailly One Nuclear Generating Station.

2. I am a member of the Bailly Alliance,'a coalition of individuals and community groups representing persons residing in 12 northwest Indiana communities in close proximity to the Bailly site. I am also a member of the Bailly Alliance steering  !

I committ.ee, which consists of representatives elected at meetings of the general membership, as well as representatives of' member community groups. I have voted along witP the membership i and tF; steering committee to authorize the Bailly Alliance to intervene in this proceeding on our behalf.

3. Because I and other members of the Bailly Alliance reside in. communities adjacent to or in close' proximity to the Bailly site, our health and' safety will be. jeopardized.in the event of a nuclear accident. This risk is aggravated by the lack of acceptable evacuation plans forithe highly populated areas-surrounding the Bailly site.

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4. For this reason, the Bailly Alliance seeks to intervene in'this proceeding to oppose extension of

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the construction permit, unless NIPSCO demonstrates that realistic emergency evacuation plans can be implemented.

In accordance with 28 U.S.C. S 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on .

JACK WEINBERG I

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r S. [?V Exhibit D

. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD t

In The Matter of )

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NORTHERN INDIANA PtBLIC ) DOCKET NO. 50-367 SERVICE COMPAUY )

(Bailly Generati.ng Station, ) (Construction Permit Nuclear 1)

) Extension)

AFFIDAVIT OF RICHARD P. POLLOCK Richard P. Pollock declares and states as follows:

1. I am Director of the Critical Mass Energy Project, a branch of Public Citizen, Inc. in Washington, D.C. ,

2. CMEP is a public interest organization dedicated to As the development of safe and efficient energy technology.

part of its activities, Critical Mass has participated in numerous proceedings before Congress and the NRC in an effort \to p.omote the implcmentation of effective requirements for prbparedness in the event of nuclear emergencies.

3. On August 6, 1975, CMEP, in conjunction with the Public Interest Research Group,-filed a petition for rule-making with the NRC on emergency planning for naclear accidents.

On May 9, 1979,.CMEP filed a second rulemaking petition with the NRC on emergency planning, which is still pending before l

, -.the Commission. CMEP has also filed nur.erous comments in \

response to NRC proposals on emergency planning for nuclear .

accidents,'most!recently in response to proposed new rules for-

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i 10 C.F.R. Part 50 and Append'ix E,-published in the Federal i

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- Register on Occcmber 19, 1979.

4. As Director of CMEP, I have testified in numerous Congrassional hearings on the subject of nuclear emergency and

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evacuation planning. These' include hearings before the House Subcommittee on Environment, Energy and Natural Resources ,

(May 7, 1979) and the U.S. Senate Government Affairs Committee (May 9, 1979).

5. I have also served as a consultant to Sandia Laboratories under contract to the NRC for the transportation of radioactive Part of the panel's work materials in urban environments.

revolved around emergency planning for radiological accidents ,

related to nuclear cargo shipments. Most recently, I served as consultant to the National Academy of PQblic A'dministration for the NRC's Special Inquiry Group into the accident at Three Mile Island. The subject was " Reactor Crisis Management - Emergency Planning" and is part of Volume II of the Rogovin Report.

'6. I have also appeared before the U.S. Civil Defense Council and the U.S. Conference of Mayors and the National League of Cities to address emergency planning and preparedness.

I authored a feature article on emergency planning for the entitled monthly magazine of the National League of Cities,

" Planning Against a Nuclear Emergency in Your City." (Nation's Cities, February 1978).

7. -Finally, CMEP has directly promoted the need for routine evacuation tests and drills. I assisted the officials

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of.Waterford, Connecticut.in 1978 when the township prepared an evacuation drill fer the three cities surrounding the Millstone nuclear site. I served as an observer for the evacuation test conducted in December, 1979 in Wilmington, North Carolina for an exercise conducted around the Brunswick ,

nuclear power plant.

8. Because of my extensive work related to issues con-cerning emergency planning, I would be prepared to testify and believe that I could substantially contribute to the develop-ment of a fuller record in this proceeding.

In accordance with 28 U.S.C. S 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on RICHARD P. POLLOCK a

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