ML20039G081

Motion for Order Imposing Condition Upon Withdrawal of Util Application.Expenses Incurred by Intervenor Were Substantial & Info Developed in Discovery Cast Doubt on Merits of Util Application.Certificate of Svc Encl

ML20039G081
Person / Time
Site:	Bailly
Issue date:	01/08/1982
From:	Vollen R PORTER COUNTY CHAPTER INTERVENORS, VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8201150264
Download: ML20039G081 (6)

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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

%{'MF BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD 82 M 12 P3'29 '

In the Matter of ) gg ;g,

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NORTiiERN INDIANA PUBLIC ) auricli i SERVICE COMPANY ) Docket No. 50-367 t )

(Bailly Generating )

Station, Nuclear-1) )

PORTER COUNTY CIIAPTER INTERVENORS' MOTION FOR AN ORDER IMPOSING A CONDITION UPON WITilDRAWAL OF NIPSCO'S APPLICATI0 @ 'A 4.

Porter County Chapter Intervenors ("PCCI"), by their RECElWED $

attorneys, move the Board to enter an order providing that~ I JAN1319826 h

NIPSCO's withdrawal of its applications is conditioned upon ( maaa  ?

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N1PSCO's payment of PCCI's expenses and attorneys fees in th 4

w. to proceeding, pursuant to 10 CFR 52.107(a).

In its recent decision in Puerto Rico Electrical Power

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Authority, (North Coast Nuclear Plant, Unit 1), ALAB-662 1 (December 7,1981), the Appeal Board affirmed a licensing board decision granting a motion to withdraw an application for i

a construction permit. The Appeal Board expressly declined to reach the question of 1

"whether something short of a dismissal with prejudice, such as conditioning withdrawal of an application upon pay-j ment of the opposing parties' expenses, might be within the Commission's powers and otherwise appropriate where the expenses incurred were substantial and intervenors developed information which

cast doubt u on the merits of the ,

l application. p' (Slip op. at 17, n. 11.)

In this proceeding the question should be reached and resolved in favor of imposition of such a condition.

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The Commission's power under the Atomic Energy Act and its own regulations to impose such a condition is readily apparent.

See, e .g. , 42 USC S S2012(e) , 2013(f), 2201(p), 5841.and 10 CFR 52.107. It is equally clear that this is an appropriate case for the exercise of that power.

Ten CFR $2.107(c) is based on and similar to Rule 41(a) of the Federal Rules of Civil Procedure which permits a court to dismiss an action at a plaintiff's request "upon such terms and conditions as the court deems proper." Philadelphia Elec-tric Company (Fulton Generating Station Units 1 and 2), ALAB-657 (November 17, 1981), slip op. at p. 9 n. 7. Under Rule 41(a)(2) conditioning voluntary dismissal of a case upon the payment of expenses and attorneys fees is authorized and aporopriate when dismissal is to be without prejudice.* 5 Moore's Federal Prectice 141.06 (2d ed. 1981). See, Smoot v. Fox, 353 F.2d 830, 833 (6th Cir. 1965), cert. denied, 384 U.S. 909, rehearing denied,384 U.S. 958 (1966); Nazzaro v. Weiner, 38 FRD 430 (D.N.J.), aff'd, 353 F.2d 537 (3d Cir. 1965).

In North Coast the Appeal Board identified two factors to be considered for such a condition to be imposed: that the l

l " expenses incurred were substantial" and that "intervenors l

! develcped information which cast doubt upon the merits of the 1

application." North Coast, supra. Both factors are satisfied here. The expenses incurred by PCCI and the fees for their

• PCCI are aware that where the dismissal is with prejudice, l an adjudication on the merits, a different result might obtain under Rule 41. However, unlike the Federal Rules, 10 CFR

$2.107(a) does not make a distinction between withdrawal of applications with prejudice and without prejudice.

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at to rneys ' services ir, these proceedings are very substantial.

Although no final compilation has been made, PCCI are confident that the total dollar amount will be at least many tens of thousands of dollars. Unlike North Coast, the Bailly proceedings did involve very lengthy and extensive discovery. After the 1

imposition of the condition requested by this motion, or at any prior time that the Board directs, PCCI will furnish an itemization and total of such expenses and fees.

The second of the two factors in North Coast is equally well satisfied here. There is no room for doubt that informa tion developed by PCCI in discovery, and otherwise, cast doubt on the merits of the application" submitted by NIPSCO. Infor-mation contained in deposition testimony of a number of NIPSCO officers and employees, documents produced by NIPSCO, and NIPSCO's answers to PCCI's interrogatories make it appear very doubtful that NIPSCO would have been able to sustain its burden of proving that " good cause" existed for the extension it sought of the latest completion date in its Bailly construction permit.

Similarly, much of that same information cast doubt that NIPSCO would be able to prove its entitlement to, and the appropriate-ness of, an amendment to its construction permit authorizing the use of "short pilings" in the foundation for the Bailly facility.*

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• See NRC Staff's Response to Northern Indiana Public Service Company's Motion to Terminate Proceeding, filed September 15, 1981, at p. 1, making it clear that "[tlwo proceedings are pending before the Licensing Board."

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7 Doubt about its ability to prevail upon the merits of its applications presumably was instrumental in NIPSCO's decisitm to cancel the Bailly plant.* If it did not have such doubt, one wonders why NIPSCO made the decision to cancel. In any event, regardless of NIPSCO's motivation, the record makes clear that the litigative efforts and information developed by PCCI therein cast serious doubt upon the merits of the applications.

CONCLUSION The Board should enter an order providing that NIPSCO's withdrawal of its applications is conditioned upon NIPSCO's payment of PCCI's expenses and attorneys fees in these proceedings.

DATED: January 8, 1982 Respectfully submitted, Robert J. Vollen Jane M. Whicher Robert J. Vollen By: ,l //pf?

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Jane M. Whicher 109 North Dearborn Robert J. VcIllen -

Attorneys for Porter County Suite 1300 Chapter Intervenors Chicago, IL 60602 (312) 641-5570

• NIPSCO's decision to cancel the Bailly plant was announced only five days after the Commission's order forbidding NIPSCO from proceeding with construction until after conclusion of the proceedings initiated pursuant to the decision of the United States Court of Appeals for the District of Columbia Circuit in State of Illinois, et al. v. NRC, 81-1131. See also Amended Notice of Opportunity for llearing (P.' lings), 46 Fed.

Reg. 43326 (August 27, 1981),

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i i cetg rrr UNITED STATES OF AMERICA '67 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BQKRDJAN 12 P3:29 In the Matter of )

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(C bERAtiClf Edbb NORTHERN INDIANA PUBLIC ) Docket No. 50-367

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i SERVICE COMPANY )

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(Bailly Generating )

Station, Nuclear-1) )

CERTIFICATE OF SERVICE l

I hereby certify that I have served copies of Porte'r' County Chapter Intervenors' Motion For An Order Imposing A Condition Upon j Withdrawal of NIPSCO's Applications on each of the persons on the  ;

attached Service List by causing them to be deposited in the U.S.

! mail, first class postage prepaid, this 8th day of January, 1982.

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DATED

January 8, 1982 Robert J. Vollen Jane M. Whicher 9

by: $' '

i Robert J.'Vollen

Attorneys for Porter County Chapter Intervenors i

Robert .T. Vollen Jane M. Whicher i 109 North Dearborn l Suite 1300 Chicago, IL 60602 7 (312) 641-5570 i

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I SERVICE LIST Herbert Grossman, Esq. George & Anna Grabowski l Administrative Judge -3820 Ridge Road Atomic Safety & Licensing Highland, Indiana .463,22 Board Panel U.S. Nuclear Regulatory Dr. George Schultz Commission 807 E. Coolspring Road Washington, D.C. 20555 Michigan City, Indiana -46360 Dr. Robert L. Holton Administrative Judge School of Oceanography Oregon State University

Corvallis , Oregon 97331 Mr. Mike Olszanski Mr. Clifford Meno Local 1010 - United Steelworkers Dr. J. Venn Leeds of America Administrative Judge 3703 Euclid Avenue 10807 Atwell East Chicago, Indiana 46312 Houston, Texas 77096 Stephen H. Lewis, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commissio Maurice Axelrad, Esq. Washington, D.C. 20555 Kathleen H. Shea, Esq.

Lowenstein, Newman, Reis, Anne Rapkin,' Asst *, Attorney Gener 1 Axelrad and Toll John Van Vranken, Environmental i

1025 Connecticut Ave., N.W. Control Division

9ashington, D.C. 20036 188 W. Randolph - Suite 2315

! Chicago, Illinois 60601

William H. Eichhorn, Esq.

4 Eichhorn, Eichhorn & Link Docketing & Service Section (3) 5243 Hohman Avenue Office of the Secretary Hammond, Indiana 46320 U.S. Nuclear Regulatory Commissic Washington, D.C. 20555 Diane B. Cohn, Esq.

Ellliam P. Schultz, Esq. Stephen Laudig, Esq.

Suite 700 21010 Cumberland Road 2000 P Street, N.W. Noblesville, Indiana 46060 Washington, D.C. 20036 Atomic Safety & Licensing Board-Panel

• U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulntory Commission Washington, D.C. 20555

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