ML20009F216

Answer to State of Il 810717 Motion for Clarification of Order & Porter County Chapter Intervenors' 810722 Motion for Clarification or Reconsideration of Order.Aslb 810710 Order Is Not Ambiguous.No Clarification Needed

ML20009F216
Person / Time
Site:	Bailly
Issue date:	07/24/1981
From:	Eichhorn W EICHHORN, EICHHORN & LINK, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20009F217	List: ML20009F216 ML20009F218
References
NUDOCS 8107300151
Download: ML20009F216 (3)

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In the ter of ) Docket No. 50-367 4/.-.,

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NORTiiERN INDIANA PUBLIC ) (Construction Permit SERVICE COMPANY ) Extencion)

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(Bailly Generating Station, ) July 24, 1981 Nuclear-1) )

NORTilERN INDIANA PUBLIC SERVICE COMPANY'S ANSWER TO (1) ILLINOIS' MOTIAN (JULY 17)

FOR CLARIFICATION OF ORDER AND (2) PCCI'S MOTION (JULY 22) FOR CLARIFICATION OR RECONSIDERATION OF ORDER Illinois purports to find "amb,iguous" "some of the language" in the Licensing Board " Order (Closing Discovery)" of July 10.

It has therefore filed a " Motion for Clarification of Order."

" Porter Co3nty Chapter Intervenors" have filed a Motio; which also seeks clarification of " ambiguities" with respect to the first two points discussed below. If the " ambiguities" are not clarified to "PCCI's" satisfaction, they request reconsideration.

In our view, the Order is not " ambiguous" and no clarification is required, flowever , the moving parties appear to have difficulties understanding their obligations under the order and the Board may therefore wish to assist them and thereby reduce the likelihood of future difficulties.

Scheduling of Depositions. Illinois and "PCCI" inquire in effect whether one must take depositions by August 28 or only PDR ADDOK 05000367 M G PDR

a serve notice by August 28 of depositions to be taken at any time thereafter. In the context of an " Order (closing Discovery),"

the meaning is cicar: deposition-taking ends August 28. Further-more, the order states explicitly "it] hat all contested discovery to the extent that it cannot be completed by August 31, 1981, will be scheduled beyond that date by Board order . . . .

Clearly, then, there is no ambiguity. "PCCI" notes that notice of depositions to be taken after August 28 had already been given and a number of subpoenas requested. The Board w:s, of course, well aware of those notices and requests--and NIPSCO's opposition thereto--when the July 10 order was issued. "PCCI" has provided no argument for reconsideration of the August 28 deadline.

" Updating" Responsas. Illinois requests that the Board

" explain" the word " update" and asks whether it is broader than

" supplement" as used in 10 C.F.R. S 2.740 (e) . PCCI has some understanding of the word " update" but may believe that it is synonmous with " supplement" as used in Section 2.740 (e) . We assume that the Board intended to *:equire parties to re-awer interrogatories, providing any information which has developed or been discovered since responses,were filed. The Board may wish to be more explicit so that each party will have the same i understanding of the obligation imposed. PCCI is also concerned about a perceived omission of "a further round of discovery l based upon the updated responses" which was mentioned in the

Board's May 20 order. There is no requirement for "a further round" and we urge the Board to refuse to permit a " free" round--

that is, discovery undertake, without specific leave of the Board.

Depositions after Aug;lst 28, 1981, of expert witnesses.

Illinois asks whether par ^ies may'take depositions of expert witnesses after August 28, 1981. The Board's order does not expressly address this topic. Nevertheless, it is covered by the provision that discovery not completed by August 28 will be scheduled or denied by Board order. That is, after August 28, depositions may be taken only with the Board's permis-sion. The merits of any particular request for authorization to depose will, of course, be dealt with when the request is made.

However, we note that, in our view, depositions of expert witnesses will be difficult to justify when their testimony is to be prefiled and they will be available for cross-examination.

Respectfully submitted, EICHHORN, EICHHORN & LINK 5243 Hohman Avenue Hammond, Indiana 46320 By: / / h Rflliam H. Li'chhorn Attorneys for Northern Indiana Public Service Company LOWENSTEIN, NEWMAN, REIS

& AXELRAD 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036

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