ML19343A911

Motion to Suspend Litigation Proceedings,Including Discovery Matters,Pending Further Order of Board.Certificate of Svc Encl

ML19343A911
Person / Time
Site:	Bailly
Issue date:	11/13/1980
From:	Vollen R, Whicher J PORTER COUNTY CHAPTER INTERVENORS
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8011240170
Download: ML19343A911 (12)

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UNITED STATES OF AMERICA - 'O NUCLEAR REGULATORY COMMISSION C ... ' f 7 g 1 BEFORE THE ATOMIC SAFETY AND LICENSING BOA ei y s i, 4

In the Matter of )

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NORTHERN INDIANA PUBLIC ) Docket No. 50-367 _,

SERVICE COMPANY ) (Construction Permit O (Bailly Generating Station, ) Extension)  %

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A PORTER COUNTY CHAPTER INTERVENORS' MOTION TO SUSPEND LITIGATION PROCEEDINGS ,, u M U g  !!

Porter County Chapter of the Izaak Walton League of America, Inc.; Concerned Citizens Against Bailly Nuclear Site; Businessmen for the Public Interest, Inc.; James E. Newman and Mildred Warner (" Porter County Chapter Intervenors"), by their attorneys, move the Board to enter an order, pursuant to 10 CFR

$2.718, directing that all further litigation proceedings, including discovery matters, be suspended pending further order of the Board.

In support of this motion, Porter County Chapter Intervenors state as follows: * * '-

Since the Board issued its Final Orderhe p sw.:., ,;r '-ollowing Prehearing w -

Conference on August 7,1980, ruling that a hearing Will be held and delineating some of the issues to be litigated in that hearing, _

a tremendous amount of litigation activity has taken place.

Porter County Chapter Intervenors have been diligently and vigorously i

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pursuing discovery both from NIPSCO and from th Staff. Several

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1 depositions have been taken and a number more have been noticed.

Thousands of pages of documents have been produced pursuant to our requests for production of documents. A number of discovery disputes have arisen; motions for protective orders and motions to compel discovery have been filed; some of them have been fully briefed, but none hcve yet been decided. Non-discovery matters , including the admissibility of contentions and the timing of the Staff decision as to whether an Environmental Impact Statement is required, have also been the subject of motions and briefs by the parties and orders by the Board. Other matters await decision. A substantially greater amount of prehearing litigation activity re=ains to be carried out to fully and fairly prepare for the hearing in this matter. However, a combination of recent developments, described below, has occurred which makes it apparent that the continuation of this major liti-gation effort at this time would be difficult, unfair, wasteful and perhaps counterproductive. In their present posture, the facts to be discovered and the issues litigated in this proceeding are in a state of flux, and can be expected to remain so until one or more of the events detailed below have occurred. Indeed, it is possible that the entire proceeding may become moot.

We understand that much of the litigation activity which we seek to defer by this motion is activity initiated by Porter County Chapter Intervenors and thus that we could reduce the amount of litigation activity voluntarily. However, to do so might run the risk that when, and if, the proceeding is set for hearing, we could be denied the opportunity to complete discovery and other prehearing i l

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l activities on the ground that we had ample time to complete them, but that we had not availed ourselves of the opportunity. Ther'e fore ,

this motion seeks permission to suspend our active pursuit of discovery and prehearing preparation, so that the period of suspension by order of the Board will not be " counted against us" in determining

whether we have had time for full and fair hearing preparation.

Accordingly, Porter County Chapter Intervenors request the

Board to enter an order suspending further litigation proceedings ,

) including discovery, pending -further order of the Board, for the reasons stac2d below, i 1. NIPSCO HAS STATED THAT IT MAY DISCONTINUE ITS EFFORTS TO BUILD THE BAILLY PLANT.

I Promptly after the entry of the Board's August 7, 1980 Order, Porter County Chapter Intervenors noticed the deposition of Eugene M.

Shorb, First Vice President of NIPSCO, who signed the letters of February 7 and August 31, 1979 to Harold R. Denton which previously have been characterized as NIPSCO's application for the construction permit extension. Mr. Shorb testified that commencing after it receives the Staff's review of the short pilings proposal, NIPSCO will conduct a review of all facets of the Bailly project. He did not know how long that . review would take, but one of the options that NIPSCO will-consider is not to build the Bailly plant. (Transcript of Deposition of Eugene M. Shorb, September 9, 1980, at pp. 94-97).

! In short, all of the parties and the Board are involved in the expenditure of vast amounts of effort and dollars in intensive and extensive litigation proceedings, concerning a subj ect matter -

whether.NIPSCO should be permitted to build the Bailly plant - which could become moot by NIPSCO's voluntary decision. If NIPSCO determines

not to build the Bailly plant, obviously there will be no need for a hearing on its application for a construction permit ex, tension, nor for any prehearing litigation proceedings, and all of the energy and money expended will have been wasted. In view of that possibility, it makes no sense for the parties to engage in expensive time-consuming discovery, brief writing and other litigation activity, or for the Board to be occupied with making decisions and issuing rulings, when such activity could become meaningless.

On the other hand, if NIPSCO determines that it will continue to seek to build the Bailly plant, the process by which it reaches that determination, as well as the facts and information generated by that determination, will probably relate directly to issues in the permit extension proceeding. NIPSCO's review may have a direct impact on the facts which have thus far been developed by discovery and the significance of such facts may be obviated or heightened by NIPSCO's review.

Moreover, it may be wanths or even years before NIPSCO makes its decision. It will not even start its review until after receipt of the Staff short pilings review, the date for which the Staff is unable or unwilling to predict, and Mr. Shorb has no idea how long the NIPSCO project review will take to be completed. Infor-mation gained from discovery conducted now could well become scale, out-dated or even irrelevant by the time of the hearing. It is clear that for Porter County Chapter Intervenors to be required to develop through discovery, and to otherwise prepare tor hearing on, facts which will surely change, is to. require a futile task.

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I In sum, there is no good reason why we should be required to continue to expend our limited resources when the subject =atter of the proceeding may well become moot through NIPSCO's voluntary actions. If NIPSCO does ultimately determine that it wants to build the Bailly plant, litigation proceedings can be reactivated at that time..

2. NIPSCO HAS NOT YET SUBMITTED THE APPLICATION UPON WHICH THIS PROCEEDING TURNS.

Even if the subject matter of this proceeding is not mooted because NIPSCO determines not to build the Bailly plant, that By letter subject matter will be changed from its present status.

dated November 3, 1980, counsel for NIPSCO informed the Board that "in due course" NIPSCO will file a "further amendment" of its request for extension. When that further amendment will be filed and what it will cover are, of course, matters concerning which we can make no predictions . We can predict, however, that the further amendment will require additional litigation effort and quite For possibly render useless much of the effort previously expended.

example, Porter County Chapter Intervenors deposed Mr. Shorb at some length concerning the details of NIPSCO's letters of February 7 and August 31, 1979. If Mr. Shorb executes the further amendment, his deposition will need to be reconvened; if another officer executes the amendment, that officer's deposition will have to be j taken. Additional document requests probably will be required and perhaps new contentions will become appropriate or existing .conten-

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tions irappropriate.

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i While the precise amount of the work, effort and expendi-ture of resources by all parties and the' Board which will havd been rendered unnecessary by NIPSCO's changing its application cannot now be determined, clearly further effort to prepare for a hearing on whether FIPSCO can show good cause for an extension should not ,

j be required until NIPSCO finally determines what extension it is seeking and on what grounds.  :

3. THE STAFF HAS t10T FORMULATED ITS i POSITION ON WHETHER A NEW ENVIRONMENTAL

IMPACT STATEMENT IS REQUIRED.

One of the major issues in this proceeding is whether, under the National Environmental Policy Act, a new or a supplemental l Environmental Impact Statement (EIS) is required, and if so, the I' matters it will consider and the conclusions it will reach. Porter ,

County Chapter Intervenors, as well as other parties, have contended that an EIS is required, and have submitted contentions regarding the issue. The Board has not yet ruled on the matter.

At the prehearing conference on March 13, 1980, counsel for the Staff indicated that the Staff position on the EIS issue might be known in June, 1980. (Tr. 302-305) . That date passed, and in August, Porter. County Chapter Intervenors and the State of Illinois

, each moved the Board to order the Staff to state its position. The Staff responded that it expected "to be able to determine whether an impact statement is required in this matter in early October, 1980..."

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("NRC Staff Response to Porter County Chapter Intervenors' Motion Concerning Environmental Impact Statement and State of Illinois Motion to Compel Staff Determination," dated September 9, 1980).

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Based upon that response, the Board denied the motions. (Order Denying Motion to' Compel Staff Determination, datedSeptembeb26, 1980: Order Denying Motion, dated October 1, 1980). The Staff expectation was not satisfied, and now the craff has indicated it will do an " appraisal" before making its initial decision on whether it intends to prepare an EIS without being ordered to do so.

It says that it expects that appraisal to be completed by January 15, 1981. (See Mr. Goldberg's letter to the Board members, dated October- 30, 1980).

If it is determined that an EIS is required, whether by the Staff voluntarily or by Board order, there is no indication of how long the process of preparing it will take. It is clear, however, that the issues to be litigated in the hearing will certainly be affected by the contents of the st:atement. At one extreme, it is not at all unreasonable to speculate that once an EIS is prepared it will conclude that the costs of granting the construction permit extension outweigh the benefits. In that event, of course, the 7 ,

Staff would be opposing the issuance of the amendment sought by NIPSCO and that in turn would have a dramatic impact on the hearing process. At another extreme, if the Staff determines that an EIS is not required, the correctness of that decision, including dis-covery concerning its procedural and substantive propriety, may

- become major litigation issues. Between the extremes are a wide variety of possibilities, depending on the scope and the substance of the Staff's appraisal. Moreover, the Staff has indicated that among the environmental matters it will address will be some that concern construction dewatering, a subject which will be litigated  ;

in the hearing regardless of the outcome of the EIS issue. l l

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Discovery which is duplicative of the work done by the Staff may be ' avoided, by suspending further litigation proceedings .: pendin the Staff's review. the In sum, the direction which the litigation will take, discovery that will be appropriate, and the precise issues to be IS issue ,

addressed are so dependent upon further resolution of the E d by common that suspension of litigation proceedings is dictate sense and fundamental fairness.

4. THE STAFF DOES NOT KNOW WHEN 11 WILL COMPLETE ITS REVIEW OF THE SHORT PILINGS PROPOSAL.

The Staff has previously predicted that it would issue its b 15, evaluation of NIPSCO's short pilings proposal "on or about Septem er 1980". (See Mr. Goldberg's letter to the Board members , dated Last week, with the evaluation not completed, September 26, 1980.)

hich it the Staff withdrew any prediction as to any date upon w (See Mr. Goldberg's letter to l

expects to issue its evaluation.

members of the Board, dated November 3,1980.)

Porter County Chapter Intervenors, as well as other parties, have asserted contentions concerning NIPSCO's short pilings propo Until the Board rules on whether or not those contentions to which discovery.concerning the short pilings admitted, the extent Porter County Chapter issue should be undertaken is lef t uncertain.

in the short pilings documents produced by Intervenors' interest NIPSCO and in other discovery concerning the issue cannot be fin '

a minimum knowing what the Staff's position is determined without at the Staff's position and on short pilings.

As with the EIS issue, 4

decision will have a dramatic impact on the parameters of the hear 1

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Indeed, it is quite possible that the Board is awaiting that' Staff document before ruling on the short pilings contentions.

The same logic which would support that position by the Board makes it equally appropriate that other prehearing litigation proceedings be suspended.

5. THE SCOPE OF THE HEARING HAS NOT YET BEEN FINALLY DETERMINED.

In addition to the admissibility of the short piling and Environmental Impact Statement contentions, the admissibility of the " newly-filed contentions," which have been briefed by the parties pursuant to the August 7,1980 order, has not yet been ruled upon by the Board. The Board's decision will obviously have a direct affect on the facts which Porter County Chapter Intervenors will need to discover from NIPSCO and the Staff, as well as upon other prehearing preparation. Moreover, a decision by the Appeal Board on the appeals by the Gary petitioners and Dr. Schult: of the denial of their petitions for intervention will unquestionably affect the ultimate scope of the proceedings. Avoidance of potentially dupli-cative discovery and other activities - cnd the concomitant conser-vation of the resources of Porter County Chapter Intervenors, other parties, the Staff and the Board - can best be accomplished by deferring discovery until all issues in the proceeding are settled.

The uncertainty surrounding Bailly and pervading this construction permit amendment proceeding, the Staff's lack of a position on various significant issues, and the unresolved scope of this proceeding combine to make it inappropriate to continue to

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pursue intensive prelitigation activities. It is unfair to Porter County Chapter Intervenors to require them to expend substantial portions of their limited resources, including lawyer capability and out-of-pocket expenses, on litigation or aspects of litigation

- which, in whole or in part, may be useless. It is also unfair to

> require the Staff and the Board to devote their energies to such '

an effort. We are now litigating about an uncertain and moving target - an activity which is impracticable at best and in this case is quickly becoming impossible.

To be sure, much of the litigation activity which we seek to defer by this motion is activity which we ourselves have initiated.

However, as stated above, our voluntary reduction in the amount of litigation activity could prejudice us if and when a hearing date is eventually set. If we are required to go to hearing, we cannot go unprepared. In seeking the Board's sanction of our suspension of active pursuit of litigation, we are requesting that the post-ponement of litiga tion efforts not work to our prejudice at some future date in determining whether we have had a reasonable oppor-tunity for full and fair prehearing preparation.

In view of all the circumstances, including the fact that all construction activity remains halted as it has been for over three years,we know of no prejudice that any party will suffer if this motion is granted. Should that situation change, any party would be free at any time to request the Board to enter.an order reactivating all or any part of the litigation proceedings.

t CONCLUSION For the foregoing reasons, Porter County Chapter Intervenors move the Board to enter an order directing that all further

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litigation proceedings, including discovery matters, be suspended pending further order of the Board.

DATED: November 13, 1980 Respectfully submitted, Robert J. Vollen Jane M. Whicher

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By // '

Robert J. Xollen Attorneys for Porter County Chapter Intervenors p \\91lir Robert J. Vollen .

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B Jane M. Whicher -

109 N. Dearborn 2 .'N

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Chicago, IL 60602 E-13 ~S (312) 641-5570 A

'b .. % N CERTIFICATE OF SERVICE s /,

I hereby certify that I served the foregoing Porter C' aunty Chapter Intervenors ' Motion to Suspend Litigation Proceedings ,

dated November 13, 1980, by causing copies of same to be addressed to all persons on the attached Service List, and to be deposited in the U. S. mail at 109 N.

Dearborn,

Chicago, Illinois, on the 13th day of November, 1980, first-class postage prepaid. .

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• Attorney /

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7 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 S07 E. Coolspring Rd Dr. Richard F. Cole Michigan City, India.na 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 Mr. Mike Olszanski Board Panel Mr. Clifford Mezo U.S. Nuclear Regulatory Commission Local 1010 Washington, D.C. 20555 United Steelworkers of America 3703 Euclid Ave.

Maurice Axelrad, Esq. East Chicago , Indiana 46312 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 Washington, D.C. 20555 William H. Eichhorn, Esq.

Eichhorn, Eichhorn & Link Susan Sekuler, Esq.

5243 Hohman Avenue Assistant Attorney General Hammond, Indiana 46320 John Van Vranken, Esq.

Environmental Control Division Diane B. Cohn, Esq. 188 W. Randolph S t. - Suite 2315 William P. Schultz, Esq. Chicago, IL 60601 Suite 700 2000 P Street, N. W. Docketing and Service Section Washington, D.C. 20555 Office of the Secretary U. S. Nuclear Regulatory Atomic r sfety and Licensing Commission Board Panel Washington, D.C.

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Stephen Laudig, Esq.

Atomic Safety and Licensing o les- le IN 4560 Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 I

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