ML20005A304

Response Opposing Porter County Chapter Intervenors' 810610 Motion for Leave to File Reply Brief.Urges ASLB to Reject 810610 Reply in Support of Motion to Compel.Certificate of Svc Encl.Related Correspondence

ML20005A304
Person / Time
Site:	Bailly
Issue date:	06/23/1981
From:	Shea K LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8106300174
Download: ML20005A304 (5)

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UNITED STATES OF AMERICA I NUCLEAR REGULATOR COMMISSION D C BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket No. 50-367 NORTHERN INDIANA PUBLIC (Construction Permi SERVICE COMPANY ) Extension) y 4

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(Bailly Generating Station, ) June 23, 1981 s 4

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NIPSCO's Response in Opposition to  %

"PCCI's" " Motion for Leave to File Reply Brief" E , 'g*,

8 On May 11, 1981, Porter County Chapter of the Izaak Walton League of America, Inc.; Concerned Citizens Acainst Bailly Nuclear Site; Businessmen for the Public Interest, Inc.; James E. Newman; and Mildred Warner (hereinafter sometimes referred to as "PCCI") filed a " Motion to Compel Production of Documents by NIPSCO Pursuant to PCCI's Third Request to NIPSCO for Pro-duction of Docuements." NIPSCO responded on May 26 and the Staff filed a Response (May 18) limited to certain aspects of the " Motion to Compel." Those pleadings completed the list of pleadings permitted by NRC regulations. However, "PCCI" has filed a " Motion for Leave to File Reply Brief" with attached

" Reply in Support of Motion to Compel" (June 10).

NIPSCO files this "Rasponse" opposing the Motion and re-quests that the Board reject the unauthorized " Reply." '()3 5

IfQ 810630g .

NRC regulations state explicitly:

The moving party shall have no right to reply, except as permitted by the presiding officer or the Secretary or the Assistant Secretary.

10 C.F.R. S 2.730 (c) (1980) . "PCCI" has attempted to circum-vent this provision by filing its " Motion for Leave to File Reply Brief" with the " Reply" attached. This tactic should not be permitted.

The " Motion for Leave to File Reply" fails to identify a basis which could justify its granting. "PCCI" alleges that Because both the Staff and NIPSCO have misconstrued the admitted contentions and because NIPSCO has submitted factual affidavits in its Response to the Motion, this Reply is necessary and appropriate.

Assuming these reasons to be true, neither would support the authorizing of additional, extraordinary pleadings.

If NIPSCO and the Staff have " misconstrued the admitted contentions," the Licensing Board will no doubt perceive that and act accordingly in ruling on the Motion to compel. "PCCI" -

was obliged to make its arguments in support of production in its Motion to Compel. Its failure to do so--or its desire to change the arguments there made--cannot justify another plead-ing. We note also that the scope of this proceeding has often been debated and briefed. That question is not novel; additional briefs are unlikely to be useful.

"PCCI" of course correctly notes that NIPSCO's Response included " factual affidavits." "PCCI" had labeled " speculative"

, t NIPSCO's claim that revealing the documents in question would be detrimental. The affidavits refute "PCCI's" charge.

"PCCI" does not repeat its " speculative" charge and apparently has no quarrel with the substance of the affidavits; in any event, "PCCI" does not attempt to make any factual response.

Surely then the filing of the affidavits cannot justify an ex-captional "PCCI" pleading.

The " Reply" is simply another$[ attempt to communicate "second thoughts" and to have "the last word" on every dis-puted point raised by "PCCI's" discovery request and Motion to Compel. We urge the Board to deny the June 10 " Motion for Leave to File Reply Brief" and reject the June 10 " Reply."

In the alternacive. the Board may wish to invite NIPSCO and the NRC Staff to address prouptly the arguments made in "PCCI's" Reply. We do not urge that course because we believe that, on the basis of the pleadings, the appropriate Board determination will be denial of the Motion to Compel without delay.

Respectfully submitted, LOWENSTEIN, NEWMAN, REIS

& AXELRAD 1025 Connecticut Avenuc, N.W.

Washington, D.C. 20036 By: bbA h . bAL Kathleen H. Shea EICHHORN, EICHHORN Attorneys for Northern Indiana

& LINK Public Service Company 5243 Hohman Avenue Hammond, Indiana 46320

• / See, e.g., PCCI's " Motion for Leave to File Reply Brief" and " Reply in Support of Motion for Order under 10 C.F.R.

S 2.740 (e)" filed simultaneously on April 16, 1981.

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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

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

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(Bailly Generating Station, ) June 23, 1981 Nuclear-1) )

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CERTIFICATE OF SERVICE I hereby certify that copies of Northern Indiana Public Service Company's Response in Opposition to "PCCI's" " Motion for Leave to File Reply Brief" in the above-captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, this 23rd day of June, 1981.

Herbert Grossman, Esquire, Chairman Administrative Judge U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Robert L. Holton Administrative Judge School of Oceanography Oregon State University Corvallis, Oregon 97331 Dr. J. Venn Leeds Administrative Judge 10807 Atwell Houston, Texas 77096 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Wasni'ngton, D.C. 20555 l

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. Howard K. Shapar, Esquire Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Stephen H. Lewis, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 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 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 Mr. George Grabowski Ms. Anna Grabowski "

7413 W. 136th Lane ,

Cedar Lake, Indiana 46303

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Kdthleen H. Shea LOWENSTEIN, NEWMAN, REIS

! . & AXELRAD 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 l