ML19305B407

Joint Intervenors Response in Opposition to Northern in Public Svc Co 800118 Motion for Establishment of Prehearing Conference Schedule.Request Contrary to Rules of Practice & Places Unfair Restraints on Parties.Certificate of Svc Encl

ML19305B407
Person / Time
Site:	Bailly
Issue date:	02/04/1980
From:	Graham R, Osann E, Vollen R GRAHAM, R. L., OSANN, E. W., VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8003190611
Download: ML19305B407 (7)

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• '* February 4, 1980 UNITED STATES OF AMERICA

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NUCLEAR REGULATORY COMMISSION s:1

@ 9-BEFORE THE ATOMIC SAFETY AND LICENSING BOARD c s k 9f(4h r$ q$ ' $\,

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In The Matter Cf 6 t@ ~</

NORTHERN INDIANA'PUBLIC ) DOCKET No. 50-36 4 6 SERVICE COMPANY ) /v to (Bailly Generating Station, ) (Construction Permit Nuclear 1) ) Extension)

JOINT INTERVENORS' ANSWER IN OPPOSITION TO MOTION FOR ESTABLISHMENT OF SCHEDULE FOR '

PREHEARING CONFERENCE AND RELATED FILINGS Porter County Chapter of the Izaak Walton League of America, Inc.; Concerned Citizens Against Bailly Nuclear Site; Businessmen for the Publi-c Interest, Inc.; James E. Newman and Mildred Warner (" Joint Intervenors"), by their attorneys, Robert J. Vollen, Edward W. Osann, Jro , and Robert L. Graham, urge the Atomic Safety and Licensing Board (" Board") to deny NIPSCO's Motion for Establishment of Schedule for Prehearing Conference and Related Filings, dated January 18, 1980.

It is clear that it is premature and inappropriate to require Joint Intervenors to file additional specific contentions and the bases therefor by February 12, 1980, or to sch'edule a pre-hearing conference to address such matters at this time. No rule requires such s cheduling. To the contrarv, fairness, the Commission's regulations and the ordqT1.y and expeditious dis-position of this matter, dictate th ac c motion be denied.

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Both NIPSCO and the NRC staff have taken the position that no petitioners hav'e standing to intervene in this proi:eeding, that all petitions to intervene should be denied and thus that there should not be any hearing. While we believe that position is ludicrous, particularly with respect to Joint Intervenors who have

- been parties to all Bailly administrative and judicial proceedings since 1972, nonetheless NIPSCO and the Staff have exercised their legal right to raise it. Until the legal issue of standing is resolved favorably to Joint ,

Intervenors, and to other petitioners, as we are confident it will be, it obviously is premature, and inappropriate, to schedule a prehearing conference prior to which additional specific contentions and the bases therefor would have to

! besubmitted.b/

Rather, the fair and orderly procedure, and that contemplated by the Commission's regulations, is for the Board to first rule on whether petitioners , including Joint Intervenors, have satisfied the requirements for intervention b/ Joint Intervenors will be pleased to provide any further legal argument (oral or written) or factual material which the Board might desire to enable it to rule on the issues of whether Joint Intervenors have standing to intervene and whether a hearing should be held.

a and on whether a hearing will be held. After a ruling permitting intervention and directing a hearing, a reasonable time and opportunity for access to information should be permitted and a schedule should be established

. 'for filing of additional specific contentions , a prehearing conference and other appropriate matters.2/

The Order of Lacember 31, 1979, establishing the Board, contemplated that it would first rule on petitions for leave to intervene and then preside over the proceeding in the event that a hearing is ordered. That is also t,he procedure contemplated by 10 CFR 52.714. Under that section, the matters of whether intervention should be permitted and whether a hearing should be held (52.714(a)(1) and (2) and (e)) , are separate from the matter of what contentions will be litigated (52.714(b)). While we do not dispute that 52.714(b) requires that in order to participate i

as a party at the hearing one must file at least one con- l tention which satis fies the requirements of that paragraph, i 1

that does not conflict with the clear language and logic of the rule -- the matter of intervention is separate from, and should be decidad prior to, the matter of contentions.

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_/ NIPSCO makes the argument that discovery cannot begin until after-a prehearing conference. Of course, there is no issue concerning discovery before the Board at this time and there will be none until some- party seeks discovery and another party opposes it. Nonetheless, it should be noted that NIPSCO is wrong. The reliance by NIPSCO on 10 CFR 52.740(b) is misplaced, since by its terms that section only limits the timing of discovery in "a proceeding on an application for a construction permit or an operating license" and this proceeding is for neither of those.

NIPSCO's effort to merge intervention and contentions is flatly contradicted by the structure of 52.714, and -

by the Notice of Opportunity for Hearing in this matter.

The fact that a petition to intervene need not contain contentions demonstrates that intervention and contentions areseparatematterstobeconsideredseparately.3/

The re'. ef sought by NIPSCO would result in w.neces s ary .

confusion, additional and unnecessary litigative activities, and would deprive Joint Intervenors of a fair opportunity to prepare additional contentions to be litigated.

NIPSCO's reliance on 10 CFR 52.751a is misplaced.'

Unless, contrary to the position in NIPSCO's Response to Petitions Filed in Response to Notice of. Opportunity for Hearing, dated January 18, 1980, NIPSCO is now conceding that'this is a " proceeding involving an application for a construction permit" (5 2.751a(a)) , that section does not apply. Clearly this is not a " proceeding involving an application for. . .an operating license" (id.), and since 52.751a applies only to those two types of proceedings, it does not apply here.

Moreover, even if 52.751a did apply, it would not provide support for the unreasonable and unfair schedule proposed by NIPSCO. The rule provides for the holding of the special prehearing conference "within ninety (90) days after the notice of hearing is published" (52.751a(a),

footnote omitted). In this matter, a notice of hearing l

_/ In point of fact, of course, Joint Intervenors' 3

Petition does contain contentions which satisfy the requirements of 52.714

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has not .yet been published. / Indeed, since presumably a notice of hearing will not be published until after the Board has ruled that there will be a hearing, and presumably it will do that only after it grants one or more petitions to intervene, the procedure contemplated in 52.751a directly supports Joint Intervenors' position that intervention should be ruled on

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prior to the matter of contentions being dealt with.

The procedure sought by NIPSCO's motion is contrary to the Commission's regulations, puts unfair and unreasonable constraints on the partLes, and would result in unnecessary confusion and duplication of efforts. The motion should be denied. .

Respectfully submitted, @ q, Robert J. Vollen Of Edward W. Osann, Jr.

Robert L. Graham C

N$@y 3 -

Dated: February 4, 1980 By // / g Robert J. Vollen Robert J. [ollen y g c/o BPI Attorneys for Porter County 109 N.

Dearborn St. of ^ the Izaak Walton League of America,

Ini Suite 1300 Concerned Citizens Against Bailly Nuclear Chicago, IL 60602 Site, Inc.; Businessmen for the Public (312) 641-5570 Interest, Inc.: James E. Newman and Edward W. Osann, Jr.

Mildred Warner (Joint Intervenors)

One IBM Plaza Suite 4600 Chicago, IL 60611 (312) 822-9666 Robert L. Graham One IBM Plaza - 44th Fir.

Chicago, IL 60611 (312) 222-9350 b/NIPSCO's motion (p. 4) refers to "the usual prehearing conference practice provided by 10 CFR S2.751a, convening a prehearin conference within 90 days after publication of the notice.g' NIPSCO, however, is seeking a prehearing conference 90 days af ter publication of Notice of Oooortunity for Hearing, not 90 days after publication of Notice of Hearing, to which S2.751a refers. We assume that NIPSCO's failure to specify which type of notice starts the 90 day period running was inadvertent.

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CERTIFICATE OF SERVICE I hereby certify that I have served copies of the foregoing Joint Intervenors' Answer in Oppositicn to Motion for Establishment of Schedule for Prehearing Conference and Related Filings , dated February 4,1980, upon each of the persons named on the attached Service List, by causing copies to be deposited in the U. S. Mail, in envelopes properly addressed and sealed, first class postage prepaid, this 4th day of February, 1980.

Attorneg l

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SERVICE LIST Herbert Grossman, Esq., Chairman George and Anna Grabowski Atomic Safety and Licensing 7413 W. 136th Lane Board Panel Cedar Lake, Indiana 46303 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. George Schultz 110 California St.

Dr. Richard F. Cole Michigan City, Indiana 46360 Atomic Safety and Licensing .

Board Panel . Richard L. Robbins, Esq.'

U.S. Nuclear Regulatory Commission Lake Michigan Federation Washington, D. C. 20555 53 W. Jackson Blvd.

Chicago, IL 60604 Mr. Glenn O. Bright Atomic Safety and Licensing Board Panel Mr. Mike Olszanski U.S. Nuclear Regulatory Commission Mr. Clifford Mezo Washington, D. C. 20555 United Steelworkers of America 3703 Euclid Ave.

Maurice Axelrad, Esq. East Chicago, Indiana 46312 4 Kathleen H. Shea, Esq.

Lowenstein, Newman, Reis, Steven C. Goldberg, Esq.

Axelrad and Toll Office of the Executive 1025 Connecticut Ave., N. W. ,

Legal Director Washington, D. C. 20036 U.S. Nuclear Regulatory Commission William H. Eichhorn, Esq. Washington, D. C. 20555 Eichhorn, Eichhorn & Link 5243 Hohman Avenue Dean Hansell, Esq.

Hammond, Indiana 46320 Assistant Attorney General John Van Vranken, Esq.

Diane B. Cohn, Esq. Environmental Control Division William P. Schultz, Esq. 188 W. Randolph St.

Suite 700 Suite 2315 2000 P Street, N. W. Chicago, IL 60601 Washington, D. C. 20555 Stephen Laudig, Esq.

Atomic Safety and Licensing 445 N. Pennsylvania Ave.

Board Panel Indianapolis, Indiana 46204 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Docketing and Service Station Office of the Secretary Atomic Safety rnd Licensing U.S. Nuclear Regulatory Appeal Bes: ' Panel Commission U.S. Nue: ca- Regulatory Commission Washington, D. C. 20555 Washingte., D. C. 20555