ML19318D174

Response to ASLB 800530 Special Prehearing Conference Provisional Order.Urges Issuance of Revised Order to Answer Short Pilings Questions.Adopts Reworded Contentions R-I: 1-15.Certificate of Svc Encl

ML19318D174
Person / Time
Site:	Bailly
Issue date:	06/30/1980
From:	Sekuler S ILLINOIS, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007080026
Download: ML19318D174 (12)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMtISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF: ) q)

) C' O NORTHERN INDIANA PUBLIC )

SERVICE COMPANY, ) DOCKET 50-367 8 gg g (Bailly Generating Station, ) _ USNRC .

Nuclear I) 9-g{ g, (Construction Permit Extension) ) 0 8 cf th Dated June 23, 1980 ) Y d'((e Secrefay S83 ice

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STATE OF ILLINOIS RESPONSE TO PROVISIONAL ORDERJV FOLLOt1ING SPECIAL PRE-HEARING CONFERENCE The State of Illinois (Illinois) pursuant to the directions contained in the Provisional Order Following Special Pre-Hearing Conference (Provisional Order) issued May 30, 1980 hereby files its response to said Ordcr. Illinois has attempted to make a timely filing of this Response. In the event that Illinois' interpretation of the Board's order in regard to tine of filing was incorrect, Illinois moves the Board for leave to file this response instanter.

1 The Provisional Order was docketed on May 30, 1980 and was received by Illinois June 5, 1980. It is being filed within 25 days of service as specified by 10 C.F.R. Section 2.710 and by the Provisional Order.

On Page 49 of the Provisional Order, it is stated that reworded contentions "should be filed at the same time as the comments to this Provisional Order (25 days af ter service of the Provisional Order)" .

A conflicting statement on page 5 directs that objections should be filed 25 days after issuance. To resolve this conflict Illinois will adhere to the rule in 10 C.F.R. Section 2.710 which corresponds to the statement on page 49.

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REPORT TO THE BOARD As requested by the Board at the special pre-hearing conference, Illinois has twice met with the Nuclear Regulatory Commission Staff, NIPSCO and Porter County Chapter Petitioners to i

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negotiate contentions. As of the date of this filing no agreement or stipulation has been reached between these parties.

SCHEDULING RECOMMENDATION Illinois believes that a prompt ruling as to whether a hearing will be held and which petitioners will be adnitted as parties

is of the greatest importance. The Board can find sufficient basis in the record to support an immediate ruling that a hearing will be held and that Illinois, having standing and having presented at least one contention which satisfies the requirements of 10 C.F.R. 52.714 may be admitted as an intervenor as well as an interested State under i 10 C.F.R. 2. 715 (c) .

In order to further facilitate the proceedings Illinois urges the Board'to order answers to the four questions on short pilings be filed as soon as possible. There is no need to await the final ruling on the~other issues to submit answers, as the Board apparently does not plan to deal with the short pilings in the final order and-therefore it will not influence the answers.

t To help expedite these proceedings Illinois submits the following evised schedule:

1. Immediate issue of a final order in regard to intervention.

2. Immediate issue of a revised order to answer questions on short pilings no later than 10 days from order.

3. Final Order to be issued no later than July 30, 1980.

4. 10 days response period for all parties following final order.

THE BOARD SHOULD RECONSIDER ITS RULING ON WAIVER Illinois objects to the Board's ruling that it need not further consider the petition for waiver at this time. The Board states that it does not interpret 10 C.F.R. Section 50. 55 (b) as limiting the proceedings to reasons why construction was not completed on time. (Prov. Order at 33-34) . The Board does not state however that the regulations may be interprested, as argued by Illinois, to include significant events that have occurred since the construction permit was issued. The Board's provisional determination that it may allow litigation of some issues, other than reasons for failure to complete constructions, does not moot the petition for waiver.

Until a final ruling on contentions is made, the petition for waiver should be considered,for only after the admission of all contentions will it be possible to determine whether the waiver will be needed.

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FACTORS IN CONTROL OF LICENSE Illinois objects to the Board's ruling that good cause for a construction permit extension may be premised on factors which could have been controlled the permittee. As admitted by the Board the statute, 42 U.S.C. S2235 and the regulations, 10 C.F.R. Section 50.55(b) on their faces state that unless the causes for delay could not have been controlled the construction permit must be forfeited. The Board is correct in its reading of Georgia Power Company (Allen W. Vogtle, Units 1& 2), LBP-77-2 5 NRC 261, affirm ALAB-375, 5 NRC 423 (1975). None of the reasons alleged by the Petitioners in Vogtle can be construed to have been strictly within the Permittee's control, therefore this case cannot.be cited for precedent to support NIPSCO's interpretation of 10 C.F.R. 550.55(b).

Illinois therefore requests the Board to reconsider the provisional ruling on this issue and to make a final ruling which will limit the finding of good cause for an extension to a consideration of factors out of the permittee's control. Whether or not the Board changes its ruling, the Board's statement that "the reasons beyond the control of the permittee would generally be more weighty than reasons within its control" leads Illinois to believe that its contention number 2 is still valid and within the scope of this construction permit extension proceeding. We ask the Board, in the final order, to so rule.

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SITE SUITABILITY Illinois objects to the Board's provisional ruling that questions of site suitability may not be heard in this proceeding.

(Prov. Order 28-30). The Board's ruling on siting contentions is based on the Board's generalized understanding that the " gist" of all petitioner's site oriented contentions is the change in NRC siting requirements as elucidated by the NRC Siting Policy Task Force Report (NUREG-06 25) Based on this erroneous interpretatio".

the Board determined that until there is a " final statement of policy by the Commission on new siting requirements which suggest the unsuitability of the Bailly site..." relitigation of the matter would be inappropriate. (Prov. Order at 28-30).

Illinois respectfully submits that the Board has misread Illinois' Contention 6 and has erroneously deprived Illinois of its opportunity to litigate for the first time issues of considerable import. Illinois' Contention 6 states:

The Application for Construction Permit Extension is inadequate in that there is no updated discussion of the Bailly site. Among other siting questions such as proximity of the proposed plant to centers of large population, and effects of the construction on the ecology of the site, the Board should require a showing 2

Line 11 of Contention 6 should read "of the showing of " good cause",

given NIPSCO's prior".

that the now acknowledged " unfavorable physical characteristics of the site" will be compensated for by the " appropriate and adeqaate compensating engineering safeguards" 10 C.F.R. 5100.10 (d) . This is especially important as part of the showing of

" good cause". Given NIPSCO's prior inability to adequately design engineering techniques that (1) compensate for inadequacies of the site such as the difficult geologic configurations and (2) do not create additional hazards or problems on the site e.g. dewatering complications, and soil changes attributable to pile driving. No construction permit extension should be issued by the Board until NIPSCO shows that siting of the Bailly reactor will be in accord with 10 C.F.R. Part 100, Regulatory Guide 4.7, NUREG 0625, NUREG 0499 and any other NRC policies and regulations that control siting criteria.

Contention 6 posits two separate and distinct reasons why the siting of the Bailly nuclear plant must be considered in the construction permit extension proceeding. First, new and changed NRC policies and regulations demand a thorough analysis of previously unconsidered aspects of site selection, such as proximity to large centers of population. This part of Contention 6 was addressed only in part of in the Provisional Order; contrary to the Board's reading, Contention 6 references not only NUREG-1625, but also 10 C.F.R. Part 100, Regulatory Guide 4.7, NUREG-0499 and "any other

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NRC policies and regulations that control siting criteria".

Second, of equal or perhaps greater importance, Contention 6 raises issues which concern the geophysical safety of the Bailly site.

This part of Contention 6 has been overlooked by the Board. The Second part of Contention 6 asserts that activities on the site which have taken place since the construction permit was granted have caused dangerous physical alterations in the substrata of the site. Dewatering and " jetting" connected wil pile driving, both of which occurred after the permit was granted, have caused modification of the sand, till and other underlying strata. These modifications were unexpected,were not considered at the construction permit hearings, and have created un-favorable physical characteristics which render the site unacceptable for use unless it can be shown that the design of the facility includes appropriate and adequate compensating engineering safeguards. 10 C.F.R. 5100.10(d). Because the changes which have occurred in the site have in effect created a "new" site, analysis of the changes site conditions 3

Since the issuance of the Provisional Order a Statement of Interim 4 Policy dealing with considerations of Class'9 accidents has been l issued by the Commission. See 45 Fed. Reg. 40101, June 13, 1980. 1 The policy is proposed as an amendment to 10 C.F.R. Parts 50 and 51, )

and is immediately effective. The policy statement requires that an EIS be prepared for any nuclear licensing proceeding where a final <

environmental statement has not yet been issued. The EIS must take into account'"significant site-and-plant specific features" when l considering accident potential. The Commission refers in the Statement to ongoing attempts by the Commission to revamp its criteria for deter-mining plant and site safety and concludes: "In the interim, however, and pending completion of rulemaking activities in the area of emergency planning, siting criteria, and design and operational safety, all of which involveJ considerations of serious accident potential, the Commis-sion finds it essential to improve its procedures for describing and disclosing to the public the basis for arriving at conclusions regarding the environmental risks due to accidents at nuclear power plants. NRC Interim Policy Statement at 12.

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must be done at this time in order to conform to existing regulations, specifically, 10 C.F.R. S100.10 Cd) . In particular, a hearing is necessary to determine whether, given the present conditions at the site, NIPSCO's design includes the " appropriate and adequate compen-sating engireeing safeguards" that will assure safe construction on a soil base that has been altered by the dewatering and jetting procedures.

It is erroneous to say that the Illinois contention

• rests only on a desire to relitigate questions already aired at the construct-ion permit stage. The issues in respect to location of the site were never discussed. It is only since the original proceeding that the Commission has conceded that a real need exists to make such consider-ations part of the hearing process. Effects of construction on the physical site were not and could not have been litigated at the construction permit hearing because the soil have not yet been altered, the dewatering was not known to produce such effects, and the jetting procedure has not yet been contemplated. Therefore NIPSCO has never been required to present evidence about the effects of its construction procedures en the safety of the site, nor has NIPSCO presented any information to show that it is able to compensate for the existing dangerous conditions at the site.

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Illinois therefore asks this Board to seriously reconsider its ruling on site suitability as it pertains to the litigation of the issues presented in Contention 6. Illinois is convinced that after carefully rereading this Contention the Board will agree that it presents novel issues specifically related to this construction permit extension proceeding and should be admitted into controversy.

REWORDED CONTENTIONS PREVIOUSLY INCORPORATED BY REFERENCE On page 49 of the Provisional Order the Porter County Chapter Petitioners (PCCP) were directed to submit reworded contentions taken from those previously filed issues and contentions that had been incorporated by reference. Although Illinois has submitted filings similar to PCCP and also has asked to have contentions from previously filed pleadings incorporated by reference, the Board did not specifically instruct Illinois to submit reworded contentions. Illinois continues to regard its previous submissions as an adequate and timely filings and has not submitted reworded contentions with this response. However, for the sake of convenience and to simplify the Board's task in ruling on contentions Illinois hereby adopts the reworded contentions R-I:1 through R-I:15 filed by the Porter County Chapter Petitioners in their Response to the Provisional Order.

Respectfully submitted, PEOPLE OF THE STATE OF ILLINOIS WILLIAM J. SCOTT Attorney General State of Illinois

L;?"W it b i\ ( o 'a b',W / d s BY: .

' SUSAN N. SEKULER '

J Assistant Attorney General Environmental Control Division 188 West Randolph, Suite 2315 ,

Chicago, Illinois 60601

('312) 793-2491 OF COUNSEL MARY JO MURRAY Assistant Attorney General

- EnvironInental Control Division

-188 West Randolph, Suite 2315

, Chicago,-Illinois (312) 793-2491 DATED: June 30, 1980 J

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g 3Y ' l CERTIFICATE OF SERVICE ' '

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M Brash I hereby certify that copies of " STATE OF . ONSE TO PROVISIONAL ORDER FOLLOWING SPECIAL PRE-HEARING CONFERENCE" dated June 30, 1980 have been served upon the following by deposit in the United States Mail, this 30th day of June, 1980.

Herbert Grossman, Esq. Robert J. Vollen, Esq.

Chairman c/o BPI Atomic Safety & Licensing 109 North Dearborn Board Panel Chicago, Illinois 60602 U.S. Nuclear Regulatory Com.

Washington, D.C. 20555 Michael I. Swygert, Esq.

25 East Jackson Blvd.

Dr. Richard F. Cole Chicago, Illinois 60604 Atomic Safety & Licensing Board Panel, U.S. Nuclear Regulary Com. William H. Eichhorn, Esq.

Washington, D.C. 20555 Eichhorn, Morrog & Eichhorn 5243 Hohmvn Avenue Mr. Glenn O. Bright Hammond, Indiant 46a23 Atomic Safety & Licensing Board Panel, U.S. Nuclear Regulatory Com. Stephen Laudig, Esq.

Washington, D.C. 20555 445 N. Pennsylsania Street Indianapolis, Jndiana 46204 Edward Ossan, Jr., Esq.

Juite 4600 Diana B. Cohn One IBM Plaza Suite 700 Chicago, Illinois 60611 2000 P. Street N.W.

Washington, D.C. 20036 Robert Graham, Esq.

One IBM Plaza, 44th Flr. Richard L. Robbins, Esq.

Chicago, Illinois 60611 Lake Michigan Federation 53 West Jackstin Blvd.

George and Anna Grobowski Chicago, Illinois 60604 7413 W. 136th Lane Cedar Lake, Indiana 46303 Steven Goldberg Counsel for tTe NRC Staff Dr. George Schultz U.S. Nuclear 3egulatory Commission 110 California Street Washington, D3C. 20555 Michigan City, Indiana _46303 Atomic Safety and Licensing Board

.Kathleen Shea, Esq.. Panel Lowenstein, Newman, Reis .U.S. Nuclear Regulatory Commission Axelrad & Toll Washington, D.C. 20555 1025 Connecticut Ave., N.!f.

Washington, D.C. 20036

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Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 I

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MARY iJO MURRAY (

AssQa'ntAttorneys General

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