ML19309H585: Difference between revisions

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Pollock" on behalf of Gary Petitioners (March 28,
Pollock" on behalf of Gary Petitioners (March 28,
;        1980).
;        1980).
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,  .                                -  _          . _ _ - _ .
  .
   .                                      petitions for leave to intervene.      Porter County Chapter Petitioners, the Federation, Gary Petitioners, and Local 1010 all elected to submit affidavits from members of the              ;
   .                                      petitions for leave to intervene.      Porter County Chapter Petitioners, the Federation, Gary Petitioners, and Local 1010 all elected to submit affidavits from members of the              ;
* organizations represented by the petitioners. /              The Fed-eration also submitted a motion for additional time to file proposed contentions. George and Anna Grabowski filed an out-of-time Second Supplement to their petition.              NIPSCO hereby responds to these submissions.
organizations represented by the petitioners. /              The Fed-eration also submitted a motion for additional time to file proposed contentions. George and Anna Grabowski filed an out-of-time Second Supplement to their petition.              NIPSCO hereby responds to these submissions.
I. Federation The Federation filed two documents dated March 28, 1980. The first is a Motion for Additional Time to File Contentions and First Supplement to Petition for Leave to Intervene with Additional Contention (Motion).              The second is an Affidavit of James D. Griffith in support of the Federation's standing to intervene in this proceeding.              We shall discuss these in reverse order.
I. Federation The Federation filed two documents dated March 28, 1980. The first is a Motion for Additional Time to File Contentions and First Supplement to Petition for Leave to Intervene with Additional Contention (Motion).              The second is an Affidavit of James D. Griffith in support of the Federation's standing to intervene in this proceeding.              We shall discuss these in reverse order.
A. Affidavit of James D. Griffith The affidavit of James D. Griffith is the only filing by which the Federation has attempted to satisfy the tech-nical standing requirements applicable to organizations seeking to intervene in NRC proceedings, as stated in Houston Lighting and Power Co. (Allens Creek Nuclear i
A. Affidavit of James D. Griffith The affidavit of James D. Griffith is the only filing by which the Federation has attempted to satisfy the tech-nical standing requirements applicable to organizations seeking to intervene in NRC proceedings, as stated in Houston Lighting and Power Co. (Allens Creek Nuclear i
     -*/  As of the date of this Response, we have received no additional affidavits or other materials from Illinois or Dr. Schultz.
     -*/  As of the date of this Response, we have received no additional affidavits or other materials from Illinois or Dr. Schultz.
                                                                              ,
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-                                  Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979).1/
-                                  Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979).1/
Although this affidavit does satisfy the technical organi-zational requirements, it does not satidfy the interest requirements    f 10 C.F.R. S 2.714(a).
Although this affidavit does satisfy the technical organi-zational requirements, it does not satidfy the interest requirements    f 10 C.F.R. S 2.714(a).
Mr. Griffith attempts to establish his interest in this proceeding by stating the following:
Mr. Griffith attempts to establish his interest in this proceeding by stating the following:
Because I utilize Lake Michigan as a sailor, swimmer and fisherman, with a boat moored in Wilmete Harbor, my health and safety will be jeopardized in the event that the waters of Lake Michigan are adversely impacted by con-struction of the plant at the Bailly site.
Because I utilize Lake Michigan as a sailor, swimmer and fisherman, with a boat moored in Wilmete Harbor, my health and safety will be jeopardized in the event that the waters of Lake Michigan are adversely impacted by con-struction of the plant at the Bailly site.
Initially, we note that Wilmete Harbor is 40 to 50 miles from the Bailly site, which is at the outer edge of
Initially, we note that Wilmete Harbor is 40 to 50 miles from the Bailly site, which is at the outer edge of the Commission's geographic zone of interests.- /      See Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 n.4 (1577); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 193, aff'd, CLI-73-12,
                                                    **
the Commission's geographic zone of interests.- /      See Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 n.4 (1577); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 193, aff'd, CLI-73-12,
* These technical requirements are (1) identifica-
* These technical requirements are (1) identifica-
_/    tion of a member who considers his personal in-terests to be adversely affected by the proceed-ing; and (2) authorization, either explicit or implicit, from that member for the organizatior.
_/    tion of a member who considers his personal in-terests to be adversely affected by the proceed-ing; and (2) authorization, either explicit or implicit, from that member for the organizatior.
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   ~~**/ The affidavit contains no indication that Mr. Griffith uses any portion of Lake Michigan closer than this distance from the Bailly site.
   ~~**/ The affidavit contains no indication that Mr. Griffith uses any portion of Lake Michigan closer than this distance from the Bailly site.


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  .
6 AEC 241 (1973). However, this geographic zone was entab-lished with respect to potential injuries resulting from an accidental release of fission products. See Louisiana Powuc & Light Co. (Waterford Steam Electric Station, Unit
6 AEC 241 (1973). However, this geographic zone was entab-lished with respect to potential injuries resulting from an accidental release of fission products. See Louisiana Powuc & Light Co. (Waterford Steam Electric Station, Unit
: 3) , ALAB-125, 6 AEC 371, 372 n.6 (1973); Detroit Edison Co.
: 3) , ALAB-125, 6 AEC 371, 372 n.6 (1973); Detroit Edison Co.
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It is not readily apparent how Mr. Griffith could be injured by a construction activity occurring more than forty miles away. Since the effects of construction are generally confined within a relatively small area, it is of particular importance that Mr. Griffith identify a mechanism by which he could be harmed by a construction activity occurring at such a great distance. However, Mr. Griffith has not stated how construction might affect Lake Michigan, how such effects would be noticeable forty miles away, nor how any noticeable effects would injure his health or safety.      In short, Mr. Griffith has not " set forth with particularity" an inter-est which may be adversely affected by construction of Bailly I
It is not readily apparent how Mr. Griffith could be injured by a construction activity occurring more than forty miles away. Since the effects of construction are generally confined within a relatively small area, it is of particular importance that Mr. Griffith identify a mechanism by which he could be harmed by a construction activity occurring at such a great distance. However, Mr. Griffith has not stated how construction might affect Lake Michigan, how such effects would be noticeable forty miles away, nor how any noticeable effects would injure his health or safety.      In short, Mr. Griffith has not " set forth with particularity" an inter-est which may be adversely affected by construction of Bailly I
as required by 10 C.F.R. S 2. 714 (a) (2) .
as required by 10 C.F.R. S 2. 714 (a) (2) .
Even assuming that construction does have a noticeable adverse effect upon Lake Michigan forty miles from the Bailly
Even assuming that construction does have a noticeable adverse effect upon Lake Michigan forty miles from the Bailly l
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site, there is no indication that Mr. Griffith is a regular user of the Lake.      As noted in Houston Lighting and Power Co    (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, ,aff'd, ALAB-549, 9 NRC 644 (1979), infrequent visits into the impacted geographic area are insufficient for standing. In a factual situation quite similar to that of Mr. Griffith, /* a licensing board held that the contact resulting from [ petitioner's]
site, there is no indication that Mr. Griffith is a regular user of the Lake.      As noted in Houston Lighting and Power Co    (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, ,aff'd, ALAB-549, 9 NRC 644 (1979), infrequent visits into the impacted geographic area are insufficient for standing. In a factual situation quite similar to that of Mr. Griffith, /* a licensing board held that the contact resulting from [ petitioner's]
presence about once a month within 40 or 50 miles of the plant (or possibly a little closer, although to an undefined extent) for fishing activities appears to us to be de minimis and
presence about once a month within 40 or 50 miles of the plant (or possibly a little closer, although to an undefined extent) for fishing activities appears to us to be de minimis and insufficient to confer standing In this pro-ceeding as a matter of right.
                                                  -
insufficient to confer standing In this pro-ceeding as a matter of right.
Id. at 457. Mr. Griffith's allegations are not sufficient to establish his interest in this proceeding.
Id. at 457. Mr. Griffith's allegations are not sufficient to establish his interest in this proceeding.
Finally, even if these d3ficiencies in the affidavit did not exist, Mr. Griffith vould still not have satisfied the standing requirement.      Under the regulation (10 C.F.R.
Finally, even if these d3ficiencies in the affidavit did not exist, Mr. Griffith vould still not have satisfied the standing requirement.      Under the regulation (10 C.F.R.
S 2.714), a petitioner must establish that he may be ed-versely affected by a possible outcome of this proceeding.
S 2.714), a petitioner must establish that he may be ed-versely affected by a possible outcome of this proceeding.
_.
           ~*/    We note that in some respects, Mr. Griffith's claim is not as valid as that of the petitioner in South Texas Project. First, Mr. Griffith is complaining about construction; the petitioner in STP was concerned with the radiological im-pacts of normal operation and accidents. Addi-tionally, unlike the petitioner in STP,- it is likely that Mr. Griffith does not fish, swim, or sail during late fall, winter, or early spring, I                due to the severity of the weather on the Lake at this time of the year.
           ~*/    We note that in some respects, Mr. Griffith's claim is not as valid as that of the petitioner in South Texas Project. First, Mr. Griffith is complaining about construction; the petitioner in STP was concerned with the radiological im-pacts of normal operation and accidents. Addi-tionally, unlike the petitioner in STP,- it is likely that Mr. Griffith does not fish, swim, or sail during late fall, winter, or early spring, I                due to the severity of the weather on the Lake at this time of the year.
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This compels a petitioner to allege that he may sustain an incremental injury from the extension above that incurred f.'ron the granting of the construction permit */ See South-wen t Broadcasting Co. , 18 F.C.C. 2d 858 (1969); Metromedia I92., (1967) 10 Rad. Reg. 2d (P & F) 626; Valley Telecasting Co.,        (1955) 12 Rad. Reg. (P & F) 196e; Channel 16 of Rhode Island, Inc.,        (1954) 10 Rad. Reg. (P & F) 377; and Tri-State Television, Inc., 43 F.C.C.          2669 (1954). Since Mr. Griffith has only alleged an injury from construction, and not an incremental injury from the extension, he has no standing to intervene in this proceeding.          Consequently, the Federation also has no standing, since its standing is                                    !
This compels a petitioner to allege that he may sustain an incremental injury from the extension above that incurred f.'ron the granting of the construction permit */ See South-wen t Broadcasting Co. , 18 F.C.C. 2d 858 (1969); Metromedia I92., (1967) 10 Rad. Reg. 2d (P & F) 626; Valley Telecasting Co.,        (1955) 12 Rad. Reg. (P & F) 196e; Channel 16 of Rhode Island, Inc.,        (1954) 10 Rad. Reg. (P & F) 377; and Tri-State Television, Inc., 43 F.C.C.          2669 (1954). Since Mr. Griffith has only alleged an injury from construction, and not an incremental injury from the extension, he has no standing to intervene in this proceeding.          Consequently, the Federation also has no standing, since its standing is                                    !
derived from that of Mr. Griffith.
derived from that of Mr. Griffith.
B. Motion for Additional Time
B. Motion for Additional Time This proceeding was noticed on November 30, 1979.-    /
                                                                **
This proceeding was noticed on November 30, 1979.-    /
The Federation had until February 26, 1980, to identify the specific contentions it desires to litigate in this proceed-ing-***    - j but it chose to file none. The Federation then
The Federation had until February 26, 1980, to identify the specific contentions it desires to litigate in this proceed-ing-***    - j but it chose to file none. The Federation then
_ _ _ _ . .
   */          See NIPSCO's Response to' Petitions Filed in Re-sponse to Notice of Opportunity for Hearing, pp.
   */          See NIPSCO's Response to' Petitions Filed in Re-sponse to Notice of Opportunity for Hearing, pp.
12-18 (January 18, 1980); NIPSCO Response to Supplemented Petitions to Intervene, pp. 8-16 (March 7, 1980).
12-18 (January 18, 1980); NIPSCO Response to Supplemented Petitions to Intervene, pp. 8-16 (March 7, 1980).
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   * * * / Northern Indiana Public Service Co. (Bailly Gener-ating Station, Nuclear-1), Board Order Setting Special Prehearing Conference, pp. 3-4 (February 7,  1980).
   * * * / Northern Indiana Public Service Co. (Bailly Gener-ating Station, Nuclear-1), Board Order Setting Special Prehearing Conference, pp. 3-4 (February 7,  1980).


_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ - - _ _ _ _ _ _ _ _ .
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_7-dttempted to raise oral contentions at the prehearing con-Cetence (March 12-13, 1980) and the Board explicitly ruled th a t. the Federation could not raise any contentions orally at this proceed-ing, but . .  . may, of course, submit late filed petitions or supplemental petitions with contentions and state the reasons why at the Board's discretion the contentions are to be accepted.
_7-dttempted to raise oral contentions at the prehearing con-Cetence (March 12-13, 1980) and the Board explicitly ruled th a t. the Federation could not raise any contentions orally at this proceed-ing, but . .  . may, of course, submit late filed petitions or supplemental petitions with contentions and state the reasons why at the Board's discretion the contentions are to be accepted.
Tr. 175. The Federation submitted proposed contentions under a Motion for Additional Time to File Contentions.
Tr. 175. The Federation submitted proposed contentions under a Motion for Additional Time to File Contentions.
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(ii) The availability of other means whereby                                                                ;
(ii) The availability of other means whereby                                                                ;
the petitioner's interest will be protected.                                                                l l
the petitioner's interest will be protected.                                                                l l
                                                                                                                      '
(iii) The extent to which the petitioner's par-ticipation may reasonably be expected to assist                                                              i in developing a sound record.
(iii) The extent to which the petitioner's par-ticipation may reasonably be expected to assist                                                              i in developing a sound record.
(iv) The extent to which the petitioner's inter-est will be represented by existing parties.
(iv) The extent to which the petitioner's inter-est will be represented by existing parties.
(v) The extent to which the petitioner's par-ticipation will broaden the issues or delay the                                                              l
(v) The extent to which the petitioner's par-ticipation will broaden the issues or delay the                                                              l proceeding.
                                                                                                                      '
proceeding.
10 C.F.R. S 2.714 (a) (1) . NIPSCO respectfully submits that                                                      l l
10 C.F.R. S 2.714 (a) (1) . NIPSCO respectfully submits that                                                      l l
the Federation has failed to satisfy its burden under l
the Federation has failed to satisfy its burden under l
S 2.714 (b) .
S 2.714 (b) .


  .
Before addressing the five factors to be balanced, we believe that it is appropriate to review the Federation's proposed contentions, since the nature of the proposed con-tentions is relevant to the weight to be assigned to each factor. Essentially, the Federation has proposed only two contentions. The first contention merely adopts the fourth contention of Illinois and all but the second contention of the Porter County Chapter Petitioners.* / The second " con-tention" is set forth beginning on line 16 of page 4 and concluding on line 2 of page 6.      The lane. cage of the " con-tention" is unclear but, as nearly as we can discern, it raises no factual Issues and appears to be legal argument-        /
  -
Before addressing the five factors to be balanced, we believe that it is appropriate to review the Federation's proposed contentions, since the nature of the proposed con-tentions is relevant to the weight to be assigned to each factor. Essentially, the Federation has proposed only two contentions. The first contention merely adopts the fourth contention of Illinois and all but the second contention of the Porter County Chapter Petitioners.* / The second " con-tention" is set forth beginning on line 16 of page 4 and concluding on line 2 of page 6.      The lane. cage of the " con-tention" is unclear but, as nearly as we can discern, it
                                                                    **
raises no factual Issues and appears to be legal argument-        /
for the posi'. ion tha. any information developed at the con-struction parmit stage must "be reconsidered at a five-year interval" with " prior issues" then reopened and new issues added. Motion, p. 4. The recital is insufficient to consti-tute a valid contention unter S 2.714 because no basis is identified and because the contention does not provide notice of what is sought to be litigated.      The Federation        ;
for the posi'. ion tha. any information developed at the con-struction parmit stage must "be reconsidered at a five-year interval" with " prior issues" then reopened and new issues added. Motion, p. 4. The recital is insufficient to consti-tute a valid contention unter S 2.714 because no basis is identified and because the contention does not provide notice of what is sought to be litigated.      The Federation        ;
l l  */    To the extent that the Federation asserts that l        it adopted any of these contentions at the pre-
l l  */    To the extent that the Federation asserts that l        it adopted any of these contentions at the pre-
!        hearing conference, it is plainly in error.
!        hearing conference, it is plainly in error.
l        The Board's ruling referred to above explicitly prohibited the Federation from offering conten-tions orally at the prehearing conference. Tr. 175.
l        The Board's ruling referred to above explicitly prohibited the Federation from offering conten-tions orally at the prehearing conference. Tr. 175.
     **/  The Federation's legal arguments regarding the
     **/  The Federation's legal arguments regarding the scope of an extension proceeding are without merit, as shown by our prior pleadings.
                                                                        -
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scope of an extension proceeding are without merit, as shown by our prior pleadings.
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                                                              -- ._ _ _ _ - _ _ _ _
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has raised no new contention of its own, but has only adopted the contentions of others.
has raised no new contention of its own, but has only adopted the contentions of others.
Given the fact tha t the Federation merely desires to adopt the contentions of other petitioners, a balance of the Eive factors weighs against granting the Federation addi-tional time to submit contentions.
Given the fact tha t the Federation merely desires to adopt the contentions of other petitioners, a balance of the Eive factors weighs against granting the Federation addi-tional time to submit contentions.
(i) good cause. The Federation asserts as good cause the fact that its only lawyer went through a " time of surgery .  .  . during January, Feb-ruary, and March."    Surgery could, of course, be good cause for a delay.      However, the Federation concedes that its attorney was not incapacitated during this entire period; in fact he "was lead-ing the effort to compile information on the
(i) good cause. The Federation asserts as good cause the fact that its only lawyer went through a " time of surgery .  .  . during January, Feb-ruary, and March."    Surgery could, of course, be good cause for a delay.      However, the Federation concedes that its attorney was not incapacitated during this entire period; in fact he "was lead-ing the effort to compile information on the Bailly plant site .  . . .      Motion, p. 3. It is thus clear that counsel simply chose not to prepare an adequate petition.      Consequently, this factor can scarcely be said to weigh in favor of the Federation. /
                                      "
Bailly plant site .  . . .      Motion, p. 3. It is thus clear that counsel simply chose not to prepare an adequate petition.      Consequently, this factor can scarcely be said to weigh in favor of
* the Federation. /
   -*/  The Federation claims that "a major cause" of the untirely filing was the " substantial effort" on its part to analyze dewatering and the Three Mile Island accident and that it could not sub-mit contentions until this analysis was complete.
   -*/  The Federation claims that "a major cause" of the untirely filing was the " substantial effort" on its part to analyze dewatering and the Three Mile Island accident and that it could not sub-mit contentions until this analysis was complete.
Since the Federation has not submitted any :'2w contentions on either of these issues, we fall to understand how this could constitute good cause.
Since the Federation has not submitted any :'2w contentions on either of these issues, we fall to understand how this could constitute good cause.


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(ii) other means to protect the petitioner's interest. The Federation can protect its inter-ests by intervening in the operating license proceeding. That is the appropriate forum in which to raise the contentions which the Federation suggests, all of which pertain to environmental and safety issues which are gen-erally outside the scope of this proceeding.
(ii) other means to protect the petitioner's interest. The Federation can protect its inter-ests by intervening in the operating license proceeding. That is the appropriate forum in which to raise the contentions which the Federation suggests, all of which pertain to environmental and safety issues which are gen-erally outside the scope of this proceeding.
Consequently, this factor weighs against the Federation.
Consequently, this factor weighs against the Federation.
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However, the Federation has not provided resumes of its staff, has not furnished its dewatering report, and has provided no information to sub-stantiate the allegation that the Federation is technically qualified to contribute to this pro-ceeding. As stated in Allens Creek, supra,
However, the Federation has not provided resumes of its staff, has not furnished its dewatering report, and has provided no information to sub-stantiate the allegation that the Federation is technically qualified to contribute to this pro-ceeding. As stated in Allens Creek, supra,


                                                    . -. _  ___________
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9 NRC at 393, the Board and the parties are en-titled to this type of information so that they may independently verify the statements of the petitioner. See also Detroit Edison Co. (Green-wood Energy Center, Units 2 and 3), ALA3-476, 7 NRC 759, 764 (1978). We also note that, if the Federation's past performance in this proceeding (untimely filings, late appearance at the pre-hearing conferenca, and submission of adopted contentions only and submission of the present Motion) is representative of their participation, it is unlikely that the Federation will contrib-ute much to this proceeding except delay. Con-
9 NRC at 393, the Board and the parties are en-titled to this type of information so that they may independently verify the statements of the petitioner. See also Detroit Edison Co. (Green-wood Energy Center, Units 2 and 3), ALA3-476, 7 NRC 759, 764 (1978). We also note that, if the Federation's past performance in this proceeding (untimely filings, late appearance at the pre-hearing conferenca, and submission of adopted contentions only and submission of the present Motion) is representative of their participation, it is unlikely that the Federation will contrib-ute much to this proceeding except delay. Con-sequently, this factor weighs against the grant of additional time to file supplemental conten-tions.
'
sequently, this factor weighs against the grant of additional time to file supplemental conten-tions.
(iv) representation by other parties. Since the Federation has only adopted the contentions of other petitioners, it would appear that those petitioners can adequately protect the interests of the Federation. Botn Illinois and the Porter Cour.ty Chapter Petitioners are represented by able counsel with ample experience in NRC pro-ceedings, and there is no reason to believe they will be unable to represent the interests of the
(iv) representation by other parties. Since the Federation has only adopted the contentions of other petitioners, it would appear that those petitioners can adequately protect the interests of the Federation. Botn Illinois and the Porter Cour.ty Chapter Petitioners are represented by able counsel with ample experience in NRC pro-ceedings, and there is no reason to believe they will be unable to represent the interests of the
                              .-.                          . .


.
.
                               -        Federation. Thus, this factor weighs strongly against the grant of additional time. See Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631, 650 (1975).
                               -        Federation. Thus, this factor weighs strongly against the grant of additional time. See Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631, 650 (1975).
(v) broaden and delay the proceeding. Since the Federation has not raised new contentions, its s2pplemental petition will not broaden this pro-ceeding. While the Federation's participation on the contentions may delay the proceeding some-what, this delay probably is not sufficient to weight this factor heavily against the Federation.
(v) broaden and delay the proceeding. Since the Federation has not raised new contentions, its s2pplemental petition will not broaden this pro-ceeding. While the Federation's participation on the contentions may delay the proceeding some-what, this delay probably is not sufficient to weight this factor heavily against the Federation.
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If the Federation's Motion is denied, it will not have submitted one valid contention as required by S 2.714 (b) .
If the Federation's Motion is denied, it will not have submitted one valid contention as required by S 2.714 (b) .


            . _ __ -_.                __..                .
9 d
                                                            -
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   ;                                                                                                  13 -
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ar 1                                                                                                                                                                                                                                  l 5
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4                                                                                                                                                                                                                                  t 1
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T 4                                                                                                                                                                                                                                  t 1
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5                                                                                                                                                                                                                                .
5                                                                                                                                                                                                                                .
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i i                                                                                                                                                                                                                                  I 1
i i                                                                                                                                                                                                                                  I 1
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      ,,_-          . - . .. - - _ . _ . . , , , - - , . . . . .        -
                                                                          . __._.-.. , _ , _ _ . _ . .    . - - . . - - , . , - - _ . .    -
                                                                                                                                               . _ , _ - , . _ . , . . , , , , . - - . . . , , . , , . . . . . .  ,7.-. . . . . ,
                                                                                                                                               . _ , _ - , . _ . , . . , , , , . - - . . . , , . , , . . . . . .  ,7.-. . . . . ,


                                                                    . _ _ _ - _ _ _ _ _
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II. Local 1010 In support of its standing to intervene, Local 1010 submitted an affidavit of Joe Frantz on March 26, 1980.      We concede that this affidavit satisfies the technical organi-zational requirements specified in Allens Creek.
II. Local 1010 In support of its standing to intervene, Local 1010 submitted an affidavit of Joe Frantz on March 26, 1980.      We concede that this affidavit satisfies the technical organi-zational requirements specified in Allens Creek.
Mr. Frantz asserts two distinct injuries as a basis of his interest in this proceeding. The first is "further site-dewatering" which allegedly harms the interests of Mr.
Mr. Frantz asserts two distinct injuries as a basis of his interest in this proceeding. The first is "further site-dewatering" which allegedly harms the interests of Mr.
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                                                              - . _ - _ - _ _ _ _ _ _ _ _ _ _
i 15 -                                                      I fII. Gary Petitioners On March 28, 1980, the Gary Petitioners submitted exe-cuted affidavits from Henry L. George (Vic e-President of Local 6787), Nickolas Contri (member of local 6787), Char-Lotte Read (Executive Director of Save the Dunes Council),
.
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i
                                -
15 -                                                      I fII. Gary Petitioners On March 28, 1980, the Gary Petitioners submitted exe-cuted affidavits from Henry L. George (Vic e-President of Local 6787), Nickolas Contri (member of local 6787), Char-Lotte Read (Executive Director of Save the Dunes Council),
Jack Weinberg (member of the Bailly Alliance), and Richard P. Pollock (Director of Critical Mass Energy Project).
Jack Weinberg (member of the Bailly Alliance), and Richard P. Pollock (Director of Critical Mass Energy Project).
The affidavit of Charlotte Read is identical to the unexecuted affidavit submitted on February 26, 1980.* /
The affidavit of Charlotte Read is identical to the unexecuted affidavit submitted on February 26, 1980.* /
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The affidavits of Jr.Lk Weinberg and Richard Pollock are also identical to the unexecuted versiens submitted on February 26, 1980, and we have nothing to add to our response of March 7, 1980.
The affidavits of Jr.Lk Weinberg and Richard Pollock are also identical to the unexecuted versiens submitted on February 26, 1980, and we have nothing to add to our response of March 7, 1980.


  .
flowing from the extension itself, as distinct from an in-Jury from the construction permit or operating license pro-
flowing from the extension itself, as distinct from an in-Jury from the construction permit or operating license pro-
:eading. Consequently, neither she nor the Bailly Alliance has standing to intervene in this proceeding. See Section E.A.,  supra.
:eading. Consequently, neither she nor the Bailly Alliance has standing to intervene in this proceeding. See Section E.A.,  supra.
The affidavit of Nickolas Contri satisfies the techni-cal organizational requirements for standing as stated in Allens Creek, supra. Additionally, Mr. Contri alleges a personal interest which may be adversely affected by the Bailly plant. However, this interest is an injury from operation of the plant and it is not an incremental injury flowing from the extension itself. The affidavit of Henry L. George contains the same defects and it fails to allege that Mr. George may be personally affected by the Bailly plant. Consequently, neither Mr. Contri, Mr. George, nor Local 6787 has standing to intervene in this proceeding.
The affidavit of Nickolas Contri satisfies the techni-cal organizational requirements for standing as stated in Allens Creek, supra. Additionally, Mr. Contri alleges a personal interest which may be adversely affected by the Bailly plant. However, this interest is an injury from operation of the plant and it is not an incremental injury flowing from the extension itself. The affidavit of Henry L. George contains the same defects and it fails to allege that Mr. George may be personally affected by the Bailly plant. Consequently, neither Mr. Contri, Mr. George, nor Local 6787 has standing to intervene in this proceeding.
See Section I.A., supra.                                      ,
See Section I.A., supra.                                      ,
1 IV. Porter County Chapter Petitioners On March 31, 1980, the Porter County Chapter Petition-
1 IV. Porter County Chapter Petitioners On March 31, 1980, the Porter County Chapter Petition-ets filed affidavits of Marshall Patner (member of Business-men for the Public Interest, Inc.), Gordon Greives and l
,
ets filed affidavits of Marshall Patner (member of Business-men for the Public Interest, Inc.), Gordon Greives and l
Phyliss Greenwald (members of Porter County Chapter), and      l l
Phyliss Greenwald (members of Porter County Chapter), and      l l
Leonard N. Conklin and Helen G. Bootle (members of Concerned I l
Leonard N. Conklin and Helen G. Bootle (members of Concerned I l
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  .
  .
Citizens against Bailly Nuclear Site).*/    Although the Porter County Chapter Petitioners filed these affidavits pursuant to the Board's request at the prehearing confer-ence, they did not " waive their position that affidavits are unnecessary to establish their right to intervene in this proceeding."    See Notice of Filing by Porter County Chapter Petitioners (March 31, 1980).
Citizens against Bailly Nuclear Site).*/    Although the Porter County Chapter Petitioners filed these affidavits pursuant to the Board's request at the prehearing confer-ence, they did not " waive their position that affidavits are unnecessary to establish their right to intervene in this proceeding."    See Notice of Filing by Porter County Chapter Petitioners (March 31, 1980).
All of the affidavits submitted by the Porter County Chapter Petitioners were essentially identical in substance.
All of the affidavits submitted by the Porter County Chapter Petitioners were essentially identical in substance.
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I visit and use the Indiana Dunes National Lakesnore and its resources, the adjacent waters of Lake Michigan and the public highways passing within a mile of the Bailly site.                        1 I
I visit and use the Indiana Dunes National Lakesnore and its resources, the adjacent waters of Lake Michigan and the public highways passing within a mile of the Bailly site.                        1 I
The affidavits contained no other factual allegations.
The affidavits contained no other factual allegations.
I All of these affidavits are insufficient. None of the affiants alleged that he considered his personal interests
I All of these affidavits are insufficient. None of the affiants alleged that he considered his personal interests to be affected by this proceeding and none identified a      )
,
to be affected by this proceeding and none identified a      )
I potential injury which he may sustain as a result of this proceeding. As the Appeal Board stated in Allens Creek,
I potential injury which he may sustain as a result of this proceeding. As the Appeal Board stated in Allens Creek,
     */  No affidavits wsie submitted by James E. Newman or Mildred Warner, .he individuals partially comprising the Porter County Chapter Petitioners. Since they still have not alleged that their interests will be affected by this proceeding, they have no standing to intervene.
     */  No affidavits wsie submitted by James E. Newman or Mildred Warner, .he individuals partially comprising the Porter County Chapter Petitioners. Since they still have not alleged that their interests will be affected by this proceeding, they have no standing to intervene.
l                                                                  l l
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                                                                  .__
.
.                                  utere proximity to a nuclear plant is insufficient for stand-Lig. For an organization to achieve representational stand-ing, it must supply "the statement of one of [its) members, vhich explicitly identifie[s] the nature of the invasion of her personal interest which might flow from the proposed action."    Allens Creek, supra, 9 NRC at 393. Allens Creek is not an aberration, since the Commission has consistently held that a person residing near a plant must also particu-larize how his interest may be adversely affected by an outcome of the proceeding if he is to satisfy the requi-sites of standing. See Virginia Electric and Power Co.
.                                  utere proximity to a nuclear plant is insufficient for stand-Lig. For an organization to achieve representational stand-ing, it must supply "the statement of one of [its) members, vhich explicitly identifie[s] the nature of the invasion of her personal interest which might flow from the proposed action."    Allens Creek, supra, 9 NRC at 393. Allens Creek is not an aberration, since the Commission has consistently held that a person residing near a plant must also particu-larize how his interest may be adversely affected by an outcome of the proceeding if he is to satisfy the requi-sites of standing. See Virginia Electric and Power Co.
(North Anna Nuclear Power Station, Units 1 and 2), ALAB-536, 9 NRC 402, 404 (1979). See also Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage . Station) ,
(North Anna Nuclear Power Station, Units 1 and 2), ALAB-536, 9 NRC 402, 404 (1979). See also Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage . Station) ,
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ceeding. Consequently, the Petition for Leave to Intervene of the Porter County Chapter Petitioners should be dismissed.
ceeding. Consequently, the Petition for Leave to Intervene of the Porter County Chapter Petitioners should be dismissed.
To the extent that the Porter County Chapter Petitioners assert that the affidavits are unnecessary, thrf are in error. Without the affidavits, the Petitioners cannot l
To the extent that the Porter County Chapter Petitioners assert that the affidavits are unnecessary, thrf are in error. Without the affidavits, the Petitioners cannot l
* r
 
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    .
                                     - 19 _
                                     - 19 _
establish that they may be adversely affected by this pro-ceeding. They may not rely upon their standing in a prior proceeding as a basis for their standing in this proceeding.
establish that they may be adversely affected by this pro-ceeding. They may not rely upon their standing in a prior proceeding as a basis for their standing in this proceeding.
See Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), LBP-75-22, 1 NRC 451, 455 (1975).
See Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), LBP-75-22, 1 NRC 451, 455 (1975).
The principle that a petitioner must re-establish its standing in each proceedin; is particularly applicable here. The Porter County Chapter Petitioners were last par-ties in the construction permit proceeding which ended in 1975 with the slurry wall decisions. A construction permit proceeding has the potential for affecting a much broader range of interests than an extension proceeding. Since the interests upon which the Petitioners relied to achieve standing in the construction permit proceeding may not be the same interests affected by the extension proceeding, it is especially important that the Petitioners specifically plead how their interests may be affected by this proceed-ing. Additionally, the construction permit proceeding concluded more than five years ago and it is possible that individuals who then had standing have moved out of the area,
The principle that a petitioner must re-establish its standing in each proceedin; is particularly applicable here. The Porter County Chapter Petitioners were last par-ties in the construction permit proceeding which ended in 1975 with the slurry wall decisions. A construction permit proceeding has the potential for affecting a much broader range of interests than an extension proceeding. Since the interests upon which the Petitioners relied to achieve standing in the construction permit proceeding may not be the same interests affected by the extension proceeding, it is especially important that the Petitioners specifically plead how their interests may be affected by this proceed-ing. Additionally, the construction permit proceeding concluded more than five years ago and it is possible that individuals who then had standing have moved out of the area, thereby relinquishing their standing in proceedings involv-
,
thereby relinquishing their standing in proceedings involv-
!
;    ing Bailly. Consequently, the requirement that the Peti-tioners file affidavits is not a useless procedure which can be discarded in this case.
;    ing Bailly. Consequently, the requirement that the Peti-tioners file affidavits is not a useless procedure which can be discarded in this case.
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   .                                      V. Grabowskis The Grabowskis filed a Second Supplement to their petition on April 2, 1980, with a request that it be accepted out-of-time. We have no objection to granting this request based upon the facts alleged by the Grabowskis.
   .                                      V. Grabowskis The Grabowskis filed a Second Supplement to their petition on April 2, 1980, with a request that it be accepted out-of-time. We have no objection to granting this request based upon the facts alleged by the Grabowskis.
The Second Supplement contains extensive discussion of the Grabowskis' standing to intervene on the grounds of psychological stress. Also, the supplement asserts for the first time that the Grabowskis are users of Indiana Dunes National Lakeshore and that their interests as users will be injured "if dewatering continues due to continued con-struction."    We interpret this statement as alleging that    !
The Second Supplement contains extensive discussion of the Grabowskis' standing to intervene on the grounds of psychological stress. Also, the supplement asserts for the first time that the Grabowskis are users of Indiana Dunes National Lakeshore and that their interests as users will be injured "if dewatering continues due to continued con-struction."    We interpret this statement as alleging that    !
l the Grabowskis may sustain an incremental injury as a result    I of the extension. Consequently, we do not object to the Grabowskis' standing to intervene on the basis of the
l the Grabowskis may sustain an incremental injury as a result    I of the extension. Consequently, we do not object to the Grabowskis' standing to intervene on the basis of the alleged extended period of dewatering. '
                                              *.
alleged extended period of dewatering. '
The Second Supplement also contains arguments regard-ing the scope of this proceeding.      Although we believe that our previous responses adequately address the issues raised 1
The Second Supplement also contains arguments regard-ing the scope of this proceeding.      Although we believe that our previous responses adequately address the issues raised 1
by the Grabowskis, we would like to emphasize one point.        l The Grabowskis appear to base much of their argument on the
by the Grabowskis, we would like to emphasize one point.        l The Grabowskis appear to base much of their argument on the
     */    Given this disposition of the Grabowskis' standing, the Board need not address the Grabowskis' arguments regard-ing psychological stress.
     */    Given this disposition of the Grabowskis' standing, the Board need not address the Grabowskis' arguments regard-ing psychological stress.


  , __
    .
     .                                -  21 -
     .                                -  21 -
assumption that the present situation is different from that which existed when NIPSCO was authorized to construct the Bailly plant. Naturally, we agree that some regulations, guidelines, and circumstances have changed since the issu-ance of the construction permit for Bailly (although we do not necessarily agree with the Grabowskis or the other peti-tioners regarding the nature or the consequences of those changes). Undoubtedly, further changes will occur between now and the time of the operating license proceeding for Bailly. Thus, the standards which are applicable now may not be applicable when Bailly is completed. Regardless of the regulations which were in existence at the construction permit proceeding or which exist today, Bailly must ulti-mately satisfy the applicable regulations in effect when the plant is authorized to operate. It serves little purpose to conduct an adjudicatory proceeding every time a regulation changes or a development occurs during construction of a plant, since the operating license proceeding assures that the plant will meet all applicable safety standards be-fore it is permitted to operate. Thus, contrary to the assertions by the Grabowskis and the other petitioners, the public health and safety will not be jeopardized if the next analysis of Bailly is conducted at the operating license
assumption that the present situation is different from that which existed when NIPSCO was authorized to construct the Bailly plant. Naturally, we agree that some regulations, guidelines, and circumstances have changed since the issu-ance of the construction permit for Bailly (although we do not necessarily agree with the Grabowskis or the other peti-tioners regarding the nature or the consequences of those changes). Undoubtedly, further changes will occur between now and the time of the operating license proceeding for Bailly. Thus, the standards which are applicable now may not be applicable when Bailly is completed. Regardless of the regulations which were in existence at the construction permit proceeding or which exist today, Bailly must ulti-mately satisfy the applicable regulations in effect when the plant is authorized to operate. It serves little purpose to conduct an adjudicatory proceeding every time a regulation changes or a development occurs during construction of a plant, since the operating license proceeding assures that the plant will meet all applicable safety standards be-fore it is permitted to operate. Thus, contrary to the assertions by the Grabowskis and the other petitioners, the public health and safety will not be jeopardized if the next analysis of Bailly is conducted at the operating license t
,
t


                                                                      .-. - . _ _ _ _ _ _ _ _ _ _ _
proceeding. /
  ,
    .
    .
* proceeding. /
Finally, the Second Supplement of the Grabowskis pro-vides further specificity to Contention 4 of their February
Finally, the Second Supplement of the Grabowskis pro-vides further specificity to Contention 4 of their February
         !? 3,  l980, supplement. The Grabowskis claim that there is no need for power from Bailly, that the surrounding area cannot be safely evacuated, and that a new cost benefit analysis and comparison of alternatives must be undertaken.
         !? 3,  l980, supplement. The Grabowskis claim that there is no need for power from Bailly, that the surrounding area cannot be safely evacuated, and that a new cost benefit analysis and comparison of alternatives must be undertaken.
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e
e The other petitioners have had three opportunities to comply with the Commission's requirements regarding standing:
  .
* The other petitioners have had three opportunities to comply with the Commission's requirements regarding standing:
fi rst in response to the notice for this proceeding, then in re-aponse to the Board's order of February 7, 1980, and finally, it. cesponse to the Board's ruling in the prehearing confer-ence. However, all of the petitioners except Illinois and the Grabowskis have failed to establish their right to par-ticipate in this proceeding for a variety of reasons, inclu-ding failure to satisfy the one valid contention requirement, failure to submit an affidavit from a member who considers I
fi rst in response to the notice for this proceeding, then in re-aponse to the Board's order of February 7, 1980, and finally, it. cesponse to the Board's ruling in the prehearing confer-ence. However, all of the petitioners except Illinois and the Grabowskis have failed to establish their right to par-ticipate in this proceeding for a variety of reasons, inclu-ding failure to satisfy the one valid contention requirement, failure to submit an affidavit from a member who considers I
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l UNITED STATES OF AMERICA NUCLEAR P2GULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICEMSING BOARD In the Matter of                      )  Docket No. 50-367
l UNITED STATES OF AMERICA NUCLEAR P2GULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICEMSING BOARD In the Matter of                      )  Docket No. 50-367
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(Bailly Generating Station,          )
(Bailly Generating Station,          )
Nuclear 1)                          )  April 14, 1980
Nuclear 1)                          )  April 14, 1980
__
                                               )
                                               )
CERTIFICATE OF SERVICE I hereby certify that a copy of NIPSCO's Response to Various Filings was served on the following by deposit in the United States mail, postage prepaid, or by hand delivery on this 14th day of April, 1980.
CERTIFICATE OF SERVICE I hereby certify that a copy of NIPSCO's Response to Various Filings was served on the following by deposit in the United States mail, postage prepaid, or by hand delivery on this 14th day of April, 1980.
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                       'U . S . Nuclear Regulatory Commission Washington, DC    20555                          l
                       'U . S . Nuclear Regulatory Commission Washington, DC    20555                          l


f
f William J. Scott, Esquiro                              ,
    ,
William J. Scott, Esquiro                              ,
   ,  Dean Hansell, Esquire
   ,  Dean Hansell, Esquire
   ;    Assistant Attorney General                            ;
   ;    Assistant Attorney General                            ;
* Environmental Control Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60601 Robert J. Vollen, Esquire c/o BPI 109 North Dearborn Street Suite 1300 Chicago, Illinois 60602 Edward W. Osann, Jr., Esquire One IBM Plaza Suite 4600 Chicago, Illinois 60611 Robert L. Graham, Esquire One IBM Plaza 44th Floor Chicago, Illinois 60611 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana  46312 Diane B. Cohn, Esquire William B. Schultz, Esquire Suite 700 2000 P Street, NW Washington, DC 20036 Richard L. Robbins, Esquire 53 West Jackson Boulevard Chicago, Illinois  60604 Mr. George Grabowski Ms. Anna Grabowski 7413 W. 136th Lane Cedar Lake, Indiana 46303 Dr. George Schultz 110 California Michigan City, Indiana    46360 e
Environmental Control Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60601 Robert J. Vollen, Esquire c/o BPI 109 North Dearborn Street Suite 1300 Chicago, Illinois 60602 Edward W. Osann, Jr., Esquire One IBM Plaza Suite 4600 Chicago, Illinois 60611 Robert L. Graham, Esquire One IBM Plaza 44th Floor Chicago, Illinois 60611 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana  46312 Diane B. Cohn, Esquire William B. Schultz, Esquire Suite 700 2000 P Street, NW Washington, DC 20036 Richard L. Robbins, Esquire 53 West Jackson Boulevard Chicago, Illinois  60604 Mr. George Grabowski Ms. Anna Grabowski 7413 W. 136th Lane Cedar Lake, Indiana 46303 Dr. George Schultz 110 California Michigan City, Indiana    46360 e
* KKTHLE3N H. SHEA Lowenstein, Newman, Reis, l                                      Axelrad & Toll l                                  1025 Connecticut Avenue, NW Washington, DC 20036}}
KKTHLE3N H. SHEA Lowenstein, Newman, Reis, l                                      Axelrad & Toll l                                  1025 Connecticut Avenue, NW Washington, DC 20036}}

Revision as of 09:52, 1 February 2020

Response to Various Filings.States No Objection to State of Il & Intervenors Grabowski Participation as Parties.All Other Petitioners Failed to Establish Right to Participate Re Contention,Interest & Standing.Certificate of Svc Encl
ML19309H585
Person / Time
Site: Bailly
Issue date: 04/14/1980
From: Frantz S, Shea K
EICHHORN, EICHHORN & LINK, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, NORTHERN INDIANA PUBLIC SERVICE CO.
To:
Atomic Safety and Licensing Board Panel
References
NUDOCS 8005130535
Download: ML19309H585 (26)
v • d • e


Text

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3005130Hf6b April 14,*1980 s

UNITED STATES OF AMERICA NJCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF )

)

NORTHERN INDIANA PUBLIC ) DOCKET NO. 50-367 SERVICE COMPANY ) (Construction Permit (Bailly Generating Station, ) Extension)

Nuclear 1) )

NIPSCO'S RESPONSE TO VARIOUS FILINGS 1!

At the special prehearing conference held in the pro-ceeding on March 12 and 13, 1980, the Licensing Board in-vited the petitioners to submit affidavits to cure the defects noted by NIPSCO and the NRC Staff in the several

~*/ " Lake Michigan Federation Motion for Additional Time to File Contentions and First Supplement to Petition for Leave to Intervene with Additional Contention" and " Affidavit of James D. Griffith" (March 28, 1980, as amended April 9, 1980); "Re-quest to File Document Late" and "Second Supple-ment to Petition of George and Anna Grabowski, Private Citizens" (April 2, 1980); " Supplemental Statement to Atomic Safety and Licensing Board Prehearing Concerning Standing" (sic) and "Affi-davit of Joe Frantz" on behalf of Local 1010 (March 27, 1980); " Notice of Filing" and Affi-davits of Marshall Patner, Gordon Greiner, Phyllis Greinwald, Leonard N. Conklin, and Helen G.

Boothe on behalf of Porter County Chapter Peti-tioners (March 31, 1980); and " Affidavit of Henry L. George," " Affidavit of Nickolas Contri,"

" Affidavit of Charlotte Read," " Affidavit of Jack Weinberg," and " Affidavit of Richard P.

Pollock" on behalf of Gary Petitioners (March 28,

1980).

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. petitions for leave to intervene. Porter County Chapter Petitioners, the Federation, Gary Petitioners, and Local 1010 all elected to submit affidavits from members of the  ;

organizations represented by the petitioners. / The Fed-eration also submitted a motion for additional time to file proposed contentions. George and Anna Grabowski filed an out-of-time Second Supplement to their petition. NIPSCO hereby responds to these submissions.

I. Federation The Federation filed two documents dated March 28, 1980. The first is a Motion for Additional Time to File Contentions and First Supplement to Petition for Leave to Intervene with Additional Contention (Motion). The second is an Affidavit of James D. Griffith in support of the Federation's standing to intervene in this proceeding. We shall discuss these in reverse order.

A. Affidavit of James D. Griffith The affidavit of James D. Griffith is the only filing by which the Federation has attempted to satisfy the tech-nical standing requirements applicable to organizations seeking to intervene in NRC proceedings, as stated in Houston Lighting and Power Co. (Allens Creek Nuclear i

-*/ As of the date of this Response, we have received no additional affidavits or other materials from Illinois or Dr. Schultz.

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- Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979).1/

Although this affidavit does satisfy the technical organi-zational requirements, it does not satidfy the interest requirements f 10 C.F.R. S 2.714(a).

Mr. Griffith attempts to establish his interest in this proceeding by stating the following:

Because I utilize Lake Michigan as a sailor, swimmer and fisherman, with a boat moored in Wilmete Harbor, my health and safety will be jeopardized in the event that the waters of Lake Michigan are adversely impacted by con-struction of the plant at the Bailly site.

Initially, we note that Wilmete Harbor is 40 to 50 miles from the Bailly site, which is at the outer edge of the Commission's geographic zone of interests.- / See Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 n.4 (1577); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 193, aff'd, CLI-73-12,

  • These technical requirements are (1) identifica-

_/ tion of a member who considers his personal in-terests to be adversely affected by the proceed-ing; and (2) authorization, either explicit or implicit, from that member for the organizatior.

to represent his interests. In addition to these technical requirements, the identified member must satisfy the injury-in-fact and zone-of-interest tests before the organization can derive standing from him.

~~**/ The affidavit contains no indication that Mr. Griffith uses any portion of Lake Michigan closer than this distance from the Bailly site.

6 AEC 241 (1973). However, this geographic zone was entab-lished with respect to potential injuries resulting from an accidental release of fission products. See Louisiana Powuc & Light Co. (Waterford Steam Electric Station, Unit

3) , ALAB-125, 6 AEC 371, 372 n.6 (1973); Detroit Edison Co.

(Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 78 (1979). There is no indication that the Commission intended to recognize a zone of that size with respect to non-radiological injuries -- i.e., injuries from construc-tion.

It is not readily apparent how Mr. Griffith could be injured by a construction activity occurring more than forty miles away. Since the effects of construction are generally confined within a relatively small area, it is of particular importance that Mr. Griffith identify a mechanism by which he could be harmed by a construction activity occurring at such a great distance. However, Mr. Griffith has not stated how construction might affect Lake Michigan, how such effects would be noticeable forty miles away, nor how any noticeable effects would injure his health or safety. In short, Mr. Griffith has not " set forth with particularity" an inter-est which may be adversely affected by construction of Bailly I

as required by 10 C.F.R. S 2. 714 (a) (2) .

Even assuming that construction does have a noticeable adverse effect upon Lake Michigan forty miles from the Bailly l

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site, there is no indication that Mr. Griffith is a regular user of the Lake. As noted in Houston Lighting and Power Co (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, ,aff'd, ALAB-549, 9 NRC 644 (1979), infrequent visits into the impacted geographic area are insufficient for standing. In a factual situation quite similar to that of Mr. Griffith, /* a licensing board held that the contact resulting from [ petitioner's]

presence about once a month within 40 or 50 miles of the plant (or possibly a little closer, although to an undefined extent) for fishing activities appears to us to be de minimis and insufficient to confer standing In this pro-ceeding as a matter of right.

Id. at 457. Mr. Griffith's allegations are not sufficient to establish his interest in this proceeding.

Finally, even if these d3ficiencies in the affidavit did not exist, Mr. Griffith vould still not have satisfied the standing requirement. Under the regulation (10 C.F.R.

S 2.714), a petitioner must establish that he may be ed-versely affected by a possible outcome of this proceeding.

~*/ We note that in some respects, Mr. Griffith's claim is not as valid as that of the petitioner in South Texas Project. First, Mr. Griffith is complaining about construction; the petitioner in STP was concerned with the radiological im-pacts of normal operation and accidents. Addi-tionally, unlike the petitioner in STP,- it is likely that Mr. Griffith does not fish, swim, or sail during late fall, winter, or early spring, I due to the severity of the weather on the Lake at this time of the year.

This compels a petitioner to allege that he may sustain an incremental injury from the extension above that incurred f.'ron the granting of the construction permit */ See South-wen t Broadcasting Co. , 18 F.C.C. 2d 858 (1969); Metromedia I92., (1967) 10 Rad. Reg. 2d (P & F) 626; Valley Telecasting Co., (1955) 12 Rad. Reg. (P & F) 196e; Channel 16 of Rhode Island, Inc., (1954) 10 Rad. Reg. (P & F) 377; and Tri-State Television, Inc., 43 F.C.C. 2669 (1954). Since Mr. Griffith has only alleged an injury from construction, and not an incremental injury from the extension, he has no standing to intervene in this proceeding. Consequently, the Federation also has no standing, since its standing is  !

derived from that of Mr. Griffith.

B. Motion for Additional Time This proceeding was noticed on November 30, 1979.- /

The Federation had until February 26, 1980, to identify the specific contentions it desires to litigate in this proceed-ing-*** - j but it chose to file none. The Federation then

  • / See NIPSCO's Response to' Petitions Filed in Re-sponse to Notice of Opportunity for Hearing, pp.

12-18 (January 18, 1980); NIPSCO Response to Supplemented Petitions to Intervene, pp. 8-16 (March 7, 1980).

    • / 44 Fed. Reg. 69,061 (1979).
  • * * / Northern Indiana Public Service Co. (Bailly Gener-ating Station, Nuclear-1), Board Order Setting Special Prehearing Conference, pp. 3-4 (February 7, 1980).

_7-dttempted to raise oral contentions at the prehearing con-Cetence (March 12-13, 1980) and the Board explicitly ruled th a t. the Federation could not raise any contentions orally at this proceed-ing, but . . . may, of course, submit late filed petitions or supplemental petitions with contentions and state the reasons why at the Board's discretion the contentions are to be accepted.

Tr. 175. The Federation submitted proposed contentions under a Motion for Additional Time to File Contentions.

Under 10 C.F.R. S 2.714 (b) , additional time for filing supplemental contentions may be granted upon a favorable balancing of the following factors:

(i) Good cause, if any, for failure to file on time.

(ii) The availability of other means whereby  ;

the petitioner's interest will be protected. l l

(iii) The extent to which the petitioner's par-ticipation may reasonably be expected to assist i in developing a sound record.

(iv) The extent to which the petitioner's inter-est will be represented by existing parties.

(v) The extent to which the petitioner's par-ticipation will broaden the issues or delay the l proceeding.

10 C.F.R. S 2.714 (a) (1) . NIPSCO respectfully submits that l l

the Federation has failed to satisfy its burden under l

S 2.714 (b) .

Before addressing the five factors to be balanced, we believe that it is appropriate to review the Federation's proposed contentions, since the nature of the proposed con-tentions is relevant to the weight to be assigned to each factor. Essentially, the Federation has proposed only two contentions. The first contention merely adopts the fourth contention of Illinois and all but the second contention of the Porter County Chapter Petitioners.* / The second " con-tention" is set forth beginning on line 16 of page 4 and concluding on line 2 of page 6. The lane. cage of the " con-tention" is unclear but, as nearly as we can discern, it raises no factual Issues and appears to be legal argument- /

for the posi'. ion tha. any information developed at the con-struction parmit stage must "be reconsidered at a five-year interval" with " prior issues" then reopened and new issues added. Motion, p. 4. The recital is insufficient to consti-tute a valid contention unter S 2.714 because no basis is identified and because the contention does not provide notice of what is sought to be litigated. The Federation  ;

l l */ To the extent that the Federation asserts that l it adopted any of these contentions at the pre-

! hearing conference, it is plainly in error.

l The Board's ruling referred to above explicitly prohibited the Federation from offering conten-tions orally at the prehearing conference. Tr. 175.

    • / The Federation's legal arguments regarding the scope of an extension proceeding are without merit, as shown by our prior pleadings.

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has raised no new contention of its own, but has only adopted the contentions of others.

Given the fact tha t the Federation merely desires to adopt the contentions of other petitioners, a balance of the Eive factors weighs against granting the Federation addi-tional time to submit contentions.

(i) good cause. The Federation asserts as good cause the fact that its only lawyer went through a " time of surgery . . . during January, Feb-ruary, and March." Surgery could, of course, be good cause for a delay. However, the Federation concedes that its attorney was not incapacitated during this entire period; in fact he "was lead-ing the effort to compile information on the Bailly plant site . . . . Motion, p. 3. It is thus clear that counsel simply chose not to prepare an adequate petition. Consequently, this factor can scarcely be said to weigh in favor of the Federation. /

-*/ The Federation claims that "a major cause" of the untirely filing was the " substantial effort" on its part to analyze dewatering and the Three Mile Island accident and that it could not sub-mit contentions until this analysis was complete.

Since the Federation has not submitted any :'2w contentions on either of these issues, we fall to understand how this could constitute good cause.

(ii) other means to protect the petitioner's interest. The Federation can protect its inter-ests by intervening in the operating license proceeding. That is the appropriate forum in which to raise the contentions which the Federation suggests, all of which pertain to environmental and safety issues which are gen-erally outside the scope of this proceeding.

Consequently, this factor weighs against the Federation.

(iii) assist in developing a sound record. The Federation claims that its participation will assist in developing a sound record, and it re-fers to its " definitive fourteen page report" on dewatering, its " engineering and natural science capacity," and the facts that its Execu-tive Director is an engineer" and it has a " Lake Michigan Science Task Force." Motion, pp. 2-3.

However, the Federation has not provided resumes of its staff, has not furnished its dewatering report, and has provided no information to sub-stantiate the allegation that the Federation is technically qualified to contribute to this pro-ceeding. As stated in Allens Creek, supra,

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9 NRC at 393, the Board and the parties are en-titled to this type of information so that they may independently verify the statements of the petitioner. See also Detroit Edison Co. (Green-wood Energy Center, Units 2 and 3), ALA3-476, 7 NRC 759, 764 (1978). We also note that, if the Federation's past performance in this proceeding (untimely filings, late appearance at the pre-hearing conferenca, and submission of adopted contentions only and submission of the present Motion) is representative of their participation, it is unlikely that the Federation will contrib-ute much to this proceeding except delay. Con-sequently, this factor weighs against the grant of additional time to file supplemental conten-tions.

(iv) representation by other parties. Since the Federation has only adopted the contentions of other petitioners, it would appear that those petitioners can adequately protect the interests of the Federation. Botn Illinois and the Porter Cour.ty Chapter Petitioners are represented by able counsel with ample experience in NRC pro-ceedings, and there is no reason to believe they will be unable to represent the interests of the

- Federation. Thus, this factor weighs strongly against the grant of additional time. See Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631, 650 (1975).

(v) broaden and delay the proceeding. Since the Federation has not raised new contentions, its s2pplemental petition will not broaden this pro-ceeding. While the Federation's participation on the contentions may delay the proceeding some-what, this delay probably is not sufficient to weight this factor heavily against the Federation.

A balancing of these factors indicates that the Feder-ation should not be granted additional time to submit con-tentions. The untimely filing has not been justified, and it appears that other parties can adequately represent the interests of the Federation. Additionally, the Feder-ation has offered no information which substantiates the allegation that it can contribute to this proceeding.

There is no substantial reason for permitting the Federation to evade the regulations and the Board's order setting time restrictions for filing contentions. The motion for addi-tional time should be denied.

If the Federation's Motion is denied, it will not have submitted one valid contention as required by S 2.714 (b) .

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II. Local 1010 In support of its standing to intervene, Local 1010 submitted an affidavit of Joe Frantz on March 26, 1980. We concede that this affidavit satisfies the technical organi-zational requirements specified in Allens Creek.

Mr. Frantz asserts two distinct injuries as a basis of his interest in this proceeding. The first is "further site-dewatering" which allegedly harms the interests of Mr.

Frantz as a user of Indiana Dunes National Lakeshore. The second is the threat to his health and job if Bailly is built, operated, and involved in an accident. ! However, this second injury is not an incremental injury produced by the extension itself, and consequently it is insuffi-cient for standing to intervene in this proceeding. See Section I.A., supra.

We have no objection to Local 1010's standing to inter-vene in this proceeding based upon the allegation regarding dewatering. HowcVer, the contentions which it seeks to j

raise are outside the scope of this pro aeding and inadmis-sible. Consequently Local 1010 has not met the one valid 1 i

contention requirement.

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~ Mr. Frantz also claims that utility rates will increase if Bailly is built but not operated. This is an econo- l mic injury which is not within the zone of interests recognized by the Commission. See Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).

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i 15 - I fII. Gary Petitioners On March 28, 1980, the Gary Petitioners submitted exe-cuted affidavits from Henry L. George (Vic e-President of Local 6787), Nickolas Contri (member of local 6787), Char-Lotte Read (Executive Director of Save the Dunes Council),

Jack Weinberg (member of the Bailly Alliance), and Richard P. Pollock (Director of Critical Mass Energy Project).

The affidavit of Charlotte Read is identical to the unexecuted affidavit submitted on February 26, 1980.* /

This affidavit appears to satisfy the technical organiza-tional requirements for standing as stated in Allens Creek.

However, it is deficient in other respects. Ms. Read has not alleged that she considers her personal interests to be adversely affected by Bailly. She only states that she re-sides "within or near the boundaries of the Lakeshore."

However, mere proximity to a plant alone is not sufficient for standing; the affiant must also " explicitly identif[y]

the nature of the invasion of her personal interest which migis t flow from the proposed licensing action." Allens Creek, supra, 9 NRC at 393. More importantly, Ms. Read has not established that she may sustain an incremental injury

  • /

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The affidavits of Jr.Lk Weinberg and Richard Pollock are also identical to the unexecuted versiens submitted on February 26, 1980, and we have nothing to add to our response of March 7, 1980.

flowing from the extension itself, as distinct from an in-Jury from the construction permit or operating license pro-

eading. Consequently, neither she nor the Bailly Alliance has standing to intervene in this proceeding. See Section E.A., supra.

The affidavit of Nickolas Contri satisfies the techni-cal organizational requirements for standing as stated in Allens Creek, supra. Additionally, Mr. Contri alleges a personal interest which may be adversely affected by the Bailly plant. However, this interest is an injury from operation of the plant and it is not an incremental injury flowing from the extension itself. The affidavit of Henry L. George contains the same defects and it fails to allege that Mr. George may be personally affected by the Bailly plant. Consequently, neither Mr. Contri, Mr. George, nor Local 6787 has standing to intervene in this proceeding.

See Section I.A., supra. ,

1 IV. Porter County Chapter Petitioners On March 31, 1980, the Porter County Chapter Petition-ets filed affidavits of Marshall Patner (member of Business-men for the Public Interest, Inc.), Gordon Greives and l

Phyliss Greenwald (members of Porter County Chapter), and l l

Leonard N. Conklin and Helen G. Bootle (members of Concerned I l

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Citizens against Bailly Nuclear Site).*/ Although the Porter County Chapter Petitioners filed these affidavits pursuant to the Board's request at the prehearing confer-ence, they did not " waive their position that affidavits are unnecessary to establish their right to intervene in this proceeding." See Notice of Filing by Porter County Chapter Petitioners (March 31, 1980).

All of the affidavits submitted by the Porter County Chapter Petitioners were essentially identical in substance.

Each affiant recited that he lives near the Bailly site, authorized his respective organization to represent his i

interests in this proceeding, and stated:

I visit and use the Indiana Dunes National Lakesnore and its resources, the adjacent waters of Lake Michigan and the public highways passing within a mile of the Bailly site. 1 I

The affidavits contained no other factual allegations.

I All of these affidavits are insufficient. None of the affiants alleged that he considered his personal interests to be affected by this proceeding and none identified a )

I potential injury which he may sustain as a result of this proceeding. As the Appeal Board stated in Allens Creek,

  • / No affidavits wsie submitted by James E. Newman or Mildred Warner, .he individuals partially comprising the Porter County Chapter Petitioners. Since they still have not alleged that their interests will be affected by this proceeding, they have no standing to intervene.

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. utere proximity to a nuclear plant is insufficient for stand-Lig. For an organization to achieve representational stand-ing, it must supply "the statement of one of [its) members, vhich explicitly identifie[s] the nature of the invasion of her personal interest which might flow from the proposed action." Allens Creek, supra, 9 NRC at 393. Allens Creek is not an aberration, since the Commission has consistently held that a person residing near a plant must also particu-larize how his interest may be adversely affected by an outcome of the proceeding if he is to satisfy the requi-sites of standing. See Virginia Electric and Power Co.

(North Anna Nuclear Power Station, Units 1 and 2), ALAB-536, 9 NRC 402, 404 (1979). See also Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage . Station) ,

ALAB-328, 3 NRC 420, 421-23 (1976), Detroit Edison Co.

(Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-ll, 7 NRC 381, 389-390, aff'd, ALAB-470, 7 NRC 473 (1978),

l; Since none of the affiants has established his interest in this proceeding, none of the Porter County Chapter Peti-tionucs has established standing to intervene in this pro- l l

ceeding. Consequently, the Petition for Leave to Intervene of the Porter County Chapter Petitioners should be dismissed.

To the extent that the Porter County Chapter Petitioners assert that the affidavits are unnecessary, thrf are in error. Without the affidavits, the Petitioners cannot l

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establish that they may be adversely affected by this pro-ceeding. They may not rely upon their standing in a prior proceeding as a basis for their standing in this proceeding.

See Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), LBP-75-22, 1 NRC 451, 455 (1975).

The principle that a petitioner must re-establish its standing in each proceedin; is particularly applicable here. The Porter County Chapter Petitioners were last par-ties in the construction permit proceeding which ended in 1975 with the slurry wall decisions. A construction permit proceeding has the potential for affecting a much broader range of interests than an extension proceeding. Since the interests upon which the Petitioners relied to achieve standing in the construction permit proceeding may not be the same interests affected by the extension proceeding, it is especially important that the Petitioners specifically plead how their interests may be affected by this proceed-ing. Additionally, the construction permit proceeding concluded more than five years ago and it is possible that individuals who then had standing have moved out of the area, thereby relinquishing their standing in proceedings involv-

ing Bailly. Consequently, the requirement that the Peti-tioners file affidavits is not a useless procedure which can be discarded in this case.

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. V. Grabowskis The Grabowskis filed a Second Supplement to their petition on April 2, 1980, with a request that it be accepted out-of-time. We have no objection to granting this request based upon the facts alleged by the Grabowskis.

The Second Supplement contains extensive discussion of the Grabowskis' standing to intervene on the grounds of psychological stress. Also, the supplement asserts for the first time that the Grabowskis are users of Indiana Dunes National Lakeshore and that their interests as users will be injured "if dewatering continues due to continued con-struction." We interpret this statement as alleging that  !

l the Grabowskis may sustain an incremental injury as a result I of the extension. Consequently, we do not object to the Grabowskis' standing to intervene on the basis of the alleged extended period of dewatering. '

The Second Supplement also contains arguments regard-ing the scope of this proceeding. Although we believe that our previous responses adequately address the issues raised 1

by the Grabowskis, we would like to emphasize one point. l The Grabowskis appear to base much of their argument on the

  • / Given this disposition of the Grabowskis' standing, the Board need not address the Grabowskis' arguments regard-ing psychological stress.

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assumption that the present situation is different from that which existed when NIPSCO was authorized to construct the Bailly plant. Naturally, we agree that some regulations, guidelines, and circumstances have changed since the issu-ance of the construction permit for Bailly (although we do not necessarily agree with the Grabowskis or the other peti-tioners regarding the nature or the consequences of those changes). Undoubtedly, further changes will occur between now and the time of the operating license proceeding for Bailly. Thus, the standards which are applicable now may not be applicable when Bailly is completed. Regardless of the regulations which were in existence at the construction permit proceeding or which exist today, Bailly must ulti-mately satisfy the applicable regulations in effect when the plant is authorized to operate. It serves little purpose to conduct an adjudicatory proceeding every time a regulation changes or a development occurs during construction of a plant, since the operating license proceeding assures that the plant will meet all applicable safety standards be-fore it is permitted to operate. Thus, contrary to the assertions by the Grabowskis and the other petitioners, the public health and safety will not be jeopardized if the next analysis of Bailly is conducted at the operating license t

proceeding. /

Finally, the Second Supplement of the Grabowskis pro-vides further specificity to Contention 4 of their February

!? 3, l980, supplement. The Grabowskis claim that there is no need for power from Bailly, that the surrounding area cannot be safely evacuated, and that a new cost benefit analysis and comparison of alternatives must be undertaken.

All of these are outside of the proper scope of this proceed-ing as wa have previously established. Therefore, this con-tention should be rejected.

VI. Conclusion Illinois and the Grabowskis have asserted that their interests, or the interests they represent, may be injured by the alleged extended period of dewatering. We have no objection to this basis for their standing under S 2.714 (a) as a matter of right. Each has made allegations from which an admissible contention can be fashioned. Consequently, we have no objection to the participation of Illinois and the Grabowskis as parcles to this proceeding.

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This is not to imply that safety and environmental  !

issues are ignored during construction. On the contrary, ,

NRC Staff continually monitors each plant during con- l struction. (The Staff's present review of NIPSCO's plans to utilize short pilings indicates that this continuing review is not illusory or cursory.) Moreover, a hearing can always be i itiated under Subpart B of 10 C.F.R. Part 2 if a sai ;y or environmental issue requires imme-diate resolutio.,

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e The other petitioners have had three opportunities to comply with the Commission's requirements regarding standing:

fi rst in response to the notice for this proceeding, then in re-aponse to the Board's order of February 7, 1980, and finally, it. cesponse to the Board's ruling in the prehearing confer-ence. However, all of the petitioners except Illinois and the Grabowskis have failed to establish their right to par-ticipate in this proceeding for a variety of reasons, inclu-ding failure to satisfy the one valid contention requirement, failure to submit an affidavit from a member who considers I

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. his personal interests adversely affected, and failure to allege that the extension of the construction permit will prodo.:e an incremental injury to the interests of a member.

Sir "e these petitioners have had ample time to correct these de fi c i.encies, but have not done so, it is reasonable to assuna that the petitioners cannot, or simply refuse to, sat-isfy the Commission's requirements for standing. Therefore, their petitions for leave to intervene should be dismissed.

Respectfully submitted, William H. Eichhorn, Esquire EICHHORN, EICHHORN & LINK 5243 Hohman Avenue Hammond, Indiana 46320 Kathleen H. Shea, Esquire Steven P. Frantz, Esquire LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 BY: U -

KA'THLEEN H. SHEA NY: M

$TEVEN P. FRANTZ g i

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l UNITED STATES OF AMERICA NUCLEAR P2GULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICEMSING BOARD In the Matter of ) Docket No. 50-367

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

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(Bailly Generating Station, )

Nuclear 1) ) April 14, 1980

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CERTIFICATE OF SERVICE I hereby certify that a copy of NIPSCO's Response to Various Filings was served on the following by deposit in the United States mail, postage prepaid, or by hand delivery on this 14th day of April, 1980.

Herbert Grossman, Esquire U.S. Nuclear Regulatory Commission Washington,.DC 20555 Glenn O. Bright U.S. Nuclear Regulatory Commission Washington, DC 20555 Richard F. Cole U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section I Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Howard K. Shapar, Esquire Executive Legal Director ,

U.S. Nuclear Regulatory Commission I Washington, DC 20555 l Steven Goldberg, Esauire Office of the Executive Legal Director

'U . S . Nuclear Regulatory Commission Washington, DC 20555 l

f William J. Scott, Esquiro ,

, Dean Hansell, Esquire

Assistant Attorney General  ;

Environmental Control Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60601 Robert J. Vollen, Esquire c/o BPI 109 North Dearborn Street Suite 1300 Chicago, Illinois 60602 Edward W. Osann, Jr., Esquire One IBM Plaza Suite 4600 Chicago, Illinois 60611 Robert L. Graham, Esquire One IBM Plaza 44th Floor Chicago, Illinois 60611 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana 46312 Diane B. Cohn, Esquire William B. Schultz, Esquire Suite 700 2000 P Street, NW Washington, DC 20036 Richard L. Robbins, Esquire 53 West Jackson Boulevard Chicago, Illinois 60604 Mr. George Grabowski Ms. Anna Grabowski 7413 W. 136th Lane Cedar Lake, Indiana 46303 Dr. George Schultz 110 California Michigan City, Indiana 46360 e

KKTHLE3N H. SHEA Lowenstein, Newman, Reis, l Axelrad & Toll l 1025 Connecticut Avenue, NW Washington, DC 20036

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