ML20002B172

Response in Opposition to Porter County Chapter Intervenors' Motion to Suspend Litigation Proceedings.Single Legitimate Concern Re Discovery Does Not Justify Deferral.Certificate of Svc Encl

ML20002B172
Person / Time
Site:	Bailly
Issue date:	11/25/1980
From:	Shea K LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-CP, NUDOCS 8012110014
Download: ML20002B172 (6)

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t, 4 -3 UNITED STATES OF AMERICA d '"w ,' 2D #

NUCLEAR REGULATORY COMMISSION 'O -

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD '\ .

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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, ) November 25, 1980 .:3 .

Nuclear-1) ) 3'  ;

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NIPSCO's Response to PCCI's ..n Motion to Suspend Litigation Proceedings. ] ~}

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= M 2 o r c3 Porter County Chapter Intervenors have requesteg issqqnce of an order " directing that all further litigation proceedings, including discovery matters, be suspended pending further or-der of the Board." (Motion, p. 1.) The Northern Indiana Public Service Company-(NIPSCO). opposes.that motion.

The essence of the complaint voiced by PCCI is that there are too many " loose ends" to permit this proceeding to continue.

However, PCCI is simply wrong in believing that certainty is a prerequisite to the progress of NF.C cases before licensing boards.

The motion appears to suggest that this proceeding is unique in its uncertainties. That is incorrect. For example, in the case of construction permits, NRC regulations require publication of the notice'of hearing as soon as practicable <

after the application has been docketed. (10 C.F.R. S 2.104 (a) . )

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8012.1100/Y G.

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2-The same is true in the_ case of operating license applications--

notice of opportunity for hearing is issued "as soon as practi-cable.after the application has been docketed." (10'C.F.R. S

- 2.10 5 (a) . ) Would-be intervenors must then file petitions, formulate _ contentions, take positions, conduct discovery, etc.

long before the NRC Staff has formulated its position (s) on the application in the form of environmental statements or safety evaluation reports. In fact, intervenors in a construction permit proceeding must undertake these actions, at a time when the application and PSAR are pristine and remain to be amended and supplemented to respond.to Staff questions and reflect de-veloping design or additional information. We note that the regulations are very deliberately written this way. In adopt-

'ing this procedure in the 1972 " restructuring" of the rules, the Commission stated:

The amendments expand the time avail-able for legitimate uiscovery by the parties to the proceeding and are ex-pected to obviate or lessen the delays which the current discovery process has caused.

(37 Fed. Reg. 15,127, 15,129 (1972).)

Undeniably, there are uncertainties in this proceeding.

They stem from different sources: For example, the Board has 1

not yet ruled on all proposed contentions. (And, for that i 1

matter, intervenors could at any time prc. pose more contentions

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and undertake to satisfy the requirements of 10 C.F.R. S 2.714.) / The Staff has not taken~ positions on the merits of the requested extension or the need for an environmental impact statement. NIPSCO has advised the Board that it will file an amendment.to its request for an extension because the on-line date for the facility is now expected to be 1989 (and the re-quest presently seeks December 1, 1987, as the latest date for completion). And'NIPSCO has indicated that, after the method of pile installation is resolved, it will review the status of the extension proceeding before deciding whether to resume construc^ ton prior to the conclusion of this pro-ceeding. However, none of these uncertainties can validly serve to justify an indefinite suspension of the proceeding.

To argue that delays in resolving one (or more) aspect of a proceeding demands (or justifies) delays in other (or all) aspects of a proceeding is to ar7ue that the proceeding should never be completed.

In our view PCCI has ide.tified one legitimate cont ^rn:

discovery. However, that con'ern can not serve as the basis for deferring the entire proceeding. No time period has been fixed for discovery; no hearing date has been set; PCCI faces

-*/ At the time the subject motion was filed, identity of the i parties was not yet certain because the Appeal Board had not ruled on the appeals of Gary, et al. and Dr. ' Schultz.

That uncertainty has since been resolved.

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(no deadlines. P'CCI can continue or suspend' discovery'now as it chooses. We'are confident that,-if any objections are later. raised to continued or renewed discovery ~ (a matter - of speculation at this1 time), PCCI will argue well and capably 23 ao'whether the present uncertainties and/or future develop-mentsLin their resolution justify its discovery requests.

We request that -the Board deny PCCI's Motion to Suspend.

Respectfully submitted,

- LO..'ENSTEIN , NEWMAN , REIS, 4

AXELRAD & TOLL 1025 Connecticut Avenue, N.W.

Washington,.D.C. 20036 By: b '

Kathleen H. Shea EICHHORN, EICHHORN,

& LINK 5243 Hohman Avenue Attorneys for Northern Indiana Hammond, Indiana 46320 Public Service Company i

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UNITED STATES OF AMERICA

" NUCLEAR REGULATORY-COMMISSION.

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ..

In the' Matter of' ) Docket No. 50-367

)

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

)

)' . November 25, 1980 (Bailly Generating Station, Nuclear-1) )

)

CERTIFICATE OF SERVICE I_hereby certify that copies of NIPSCO's Response to

-Porter County Chapter Intervenors' Motion to Suspend Liti-gation Proceedings were served on the following by deposit in the United States mail, postage prepaid, on this 25th day.ofl November, 1980:

Herbert Grossman, Esquire U.S. Nuclear Regulatory Commission.

Washington, D.C. 20555

.Glenn O. Bright

- 'U.S. Nuclear Regulatory Commission '

Washington, D.C. 20555 Richard F. Cole U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Howard K. Shapar, Esquire Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Steven Goldberg, Esquire Office of the Executive Legal Director J.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

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i Susan'Sekuler,' Esquire 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 t.. Osann, Jr., Esquire One IBM Plaza Suite 4600-Chicago, -I.*.linois 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, D.C. 20036 Mr. George Grabowski Ms. Anna'Grabowski 7413 W.'136th Lane Cedar Lake, Indiana 46303 Dr. George Schultz 807 East Coolspring Michigan City, Indiana 46360 f

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KATHLEEN H. SHEA Lowenstein, Newman, Reis, Axelrad & Toll 4

1025 Connecticut Avenue, N.W.

Washington, D.C. 20036

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