Text

Informs Commission of Business & Prof People for Public Interest 820604 Application for Atty Fees & Expenses Derived from Participation in Proceeding
	ML20092N454
Person / Time
Site:	05000000, Bailly
Issue date:	06/30/1982
From:	Malsch M; NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	;
Shared Package
ML20092N436	List: ML20092N454;
References
	FOIA-83-363, TASK-AIA, TASK-SE SECY-82-277, NUDOCS 8407030156
	Download: ML20092N454 (2)
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June 30, 1982

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ADJUDICATORY ISSUE (Affirmation)

For:

The Commissioners From:

Martin G. Malsch Deputy General Counsel

Subject:

REQUEST FOR FEES AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT IN BAILLY PROCEEDING Discussion:

On June 4, 1982, the Business and Professional People for Public Interest (BPPPI), lodged with the agency an application for attorney fees and expenses under 'the Equal Access to Justice Act, 5 U.S.C. S 504 (Attachment 1).

BPPPI's claim is based on its participation in several matters concerning the Bailly facility.

Currently pending before the Commission are the proposed final rule to implement the Equal Access _to Justice Act (SECY-82-241).

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

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NORTHERN INDIANA PUBLIC SERVICE )

Docket No. 50-367 COMPANY

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(Bailly Generating Station,

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Nuclear-1)

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APPLICATION FOR AWARD OF FEES AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT*

BUSINESS AND PROFESSIONAL PEOPLE FOR THE PUBLIC' INTEREST, INC. (formerly known as Businessmen for the Public Interest, Inc.)

("BPI"), by its attorneys, hereby applies for award of attorneys' fees and expenses, pursuant to the Equal Access to Justice Act, P.L.96-481, 94 Stat. 2321, amending 5 USC 5501 et seq., all as more fully set forth below.

1.

BPI is one of the group of organizations and indi-viduals frequently referred to as " Porter County Chapter Inter-venors" or."PCCI" in the course of the proceedings for which an award is sought.

BPI is informed and believes that neither any of the other groups or individuals who, together with BPI, com-prised PCCI (Porter County Chapter of the Izaak Walton League of America, Inc., Concerned Citizens Against Bailly Nuclear Site, Mildred Warner and James E. Newman), nor any of the other attorneys who have appeared on behalf of PCCI, intend to file applications l

for fees.

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2.

Fees are hereby sought for services rendered and expenses incurred in two proceedings, both in connection with NORTHERN INDIANA PUBLIC SERVICE COMPANY (Bailly Generating Station, Nuclear-1), CPPR-104; Docket No. 50-367.

a.

Proceedings in connection with the proposed

adment of the Bailly Construction Permit, No. CPPR-104, to set a new latest date for completion of the plant (see Notice of Opportunity for Hearing on Construction Permit Extension, 44 Fed. Reg. 6906'1 (November 30, 1979)) (" Construction Permit Exten-sion proceedings"); and b.

Proceedings in connection with the proposed amendment of the Bailly Construction Permit to allow for a foundation of short pilings (see Amended Notice of Opportunity for Hearings (Pilings), 46 Fed. Re'g. 43326 (August 27, 1981) ("Short Pilings proceedings").

3.

PCCI is the prevailing party in each of the two proceedings.

a.

Construction Permit Extension Proceedings.

On May 7, 1982, the Licensing Eoard entered its final order terminating the proceedings in PCCI's favor.

BPI's position in this proceeding, as evidenced by its contentions and other filings, has been that the Bailly construction permit should not be extended and that the plant should not be built.

l See Joint Intervenors' First Supplement to Petition for Leave to l

Intervene, filed February 26, 1980.

This is precisely what has l

occurred under the terms of the termination order.

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Short Pilings Proceeding.

BPI is also the pre-vailing party in the short pilings proceeding.

Even before the filing of BPI's " Petition With Respect To Short Pilings Proposal" dated November 1, 1978, BPI had contended that NIPSCO's construc-tion permit did not allow for a plant built on short pilings.

BPI's position with respect to the foundation plan has been that, in order to legally install such a foundation, the permit must be amended, and that. such an x-- trent required a hearing under the Atomic Energy Act.

By NIPSCO's Motion to Terminate Proceedings, filed August 26, 1981, NIPSCO has effectively dismissed its request for an amendment allowing that short pilings plan.

Because.its litigative goals in the short pilings proceeding have been realized, BPI is a prevailing party in that proceeding.

4 The positions taken by the NRC staff,in each of the proceedings were not substantially justified.

BPI identifies the positions of the agency as follows:

a.

Construction Permit Extension Proceeding.

Despite repeated requests by BPI, the NRC staff refused to take a position in this proceeding until its July 17, 1981 submission, "NRC Staff Evaluation of Request for an Extension of Construction Permit CPPR-104 for the Bailly Generating Station, Nuclear-1" and accom-panying Neg'ative Declaration and Environmental Impact Appraisal.

The positions taken in this document -- that " good.cause" had been shown, that the permit should be extended, and that no new or supplemental Environmental Impact Statement was required -- were not substantially jus tified.

Further, the staff's refusal to take

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b.

Short Pilings Proceeding.

The original NRC staff position in this proceeding -- that the question of piling depth was "left open" at the construction permit hearing, and that no hearing was required under the Atomic Energy Act -- was not sub-stantially justified.

Further, neither the staff position on the merits of the foundation plan as the position encompassed in the

" Safety Evaluation Report Relating to the Pile Foundation Design and Installation for the Bailly Generating Station, Nuclear-1" dated March 5,1981, nor the staff's failure to take a position until that date -- when it knew of the proposal at least as early as 1974 -- was substantially justified.

5.

BPI is incorporated as an Illinois not-for-profit corporation and functions as a public interest law and research center.

It is an organization described in Section 501(c)(3) of r

the Internal Revenue Code, 26 USC 5501(c) (3), exempt from taxation under section 501(a) of the Code.

6.

BPI seeks an award of attorneys' fees in the amount of S55,200.00 for legal services rendered by Robert J. Vollen (736 hours0.00852 days 0.204 hours 0.00122 weeks 2.80048e-4 months X the statutory maximum rate of $75.00 per hour) and of

$194.812.50 for legal services rendered by Jane M. Whicher (2597.5 hours5.787037e-5 days 0.00139 hours 8.267196e-6 weeks 1.9025e-6 months X the statutory maximum rate of $75.00 per hour) and an award for retabursement of expenses in the amount of $1841.45.

7.

In support of this Application, there are attached hereto and submitted forthwith the Affidavits of Robert J. Vollen, Jane M. Whicher and Robert L. Graham.

In addition, BPI submits 1

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'a Memorandum of Law in Support of this Application, showing the Board that it is entitled to an award under the Equal Access to Justice Act.

Respectfully submitted, Robert J. V @ en, t

one cf the Attorneys for BPI Subscribed and sworn to before me this M day of June, 1982 Y

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No tary' Pub:.ic du LU. LLuult%

Jane M. Whicher)

One of the attorneys for BPI i

Subscribed and worn to before me this N day of June, 1982.

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Notary Public Dated:

June 4, 1982 Robert J. Vollen Jane M. Whicher BUSINESS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST 109 North Dearborn Street - #1300 Chicago, Illinois 60602 312/641-5570 l...

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AFFIDAVIT OF ROBERT J. VOLLEN ROBERT J. VOLLEN, being duly sworn, says :

1.

I am one of the attorneys of record for the group of organizations and individuals commonly referred to in the Bailly proceedings before the Nuclear Regulatory Commission as " Porter County Chapter Intervenors" or "PCCI," one of which is Business and Professional People for the Public Interest, Inc. (pre-viously known as Businessmen for the Public Interest, Inc.) ("BPI").

2.

I first provided legal services in connection with BPI's efforts to prevent construction of the Bailly nuclear plant in the summer of 1974 and since approximately the beginning of 1975 I have served as lead counsel for BPI, and the other Porter County Chapter Intervenors, in all litigation efforts seeking that goal, including in the NRC proceedings concerning an exten-sion of the Bailly construction permit, No. CPPR-104, and in the NRC and judicial proceedings concerning the short pilings pro-posal for construction of Bailly.

3.

I am a graduate of the University of Michigan (A.B.

l 1961) and of the University of Chicago Law School (J.D. 1964),

where I was a member of the editorial board of the Law Review and a member of the Order of the Coif.

I am admitted to practice l

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i 2-in the Supreme Court of the United States, in the United States Court of Appeals for the Fourth, Seventh, Eighth and District of Columbia. Circuits, in the United States District Courts for the r

District of Columbia and for the Northern District of Illinois, and in the Supreme Court of Illinois.

4.

From July 1964 until December 1975 I was an attorney in the Attorney General's Honors Graduate Program in the Appellate Section, Civil Division, United States Department of Justice, where my practice was exclusively in civil appellate matters.

From January 1966 and until October 1972 I was an associate and then a partner with the law firm that is now known as'Schiff, Hardin & Waite in Chicago, where my practice was almost exclusively l

in a variety of civil litigation matters, many of them lengthy and complex.

1 Since October 1972, I have been General Counsel and a full-time salaried employee of BPI.

Upon joining BPI in 1972, I assumed primary responsibility for the representation of a number of intervenors before the United States Atomic Energy Commission (AEC) in the operating license j

proceedings concerning the Zion, Cook and Kewaunee nuclear plants.

Since joining BPI I also have had primary responsibility for a number of cases in the United States District Court for the Northern District of Illinois, and in the United States Court of Appeals for the Seventh and District of Columbia Circuits, and-'in the Supreme Court of the United States, to a number of which either the NRC or the AEC was a party.

Since early 1975, I.have served w

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-s as lead counsel in all of the legal proceedings concerning con-1 struction of the Bailly plant to which BPI has been a party, including those before the United States Nuclear Regulatory Com-mission, the United States Court of Appeals for the Seventh and D.C. Circuits and the Supreme Court of the United States, as well as non-litigative efforts involving the United States Department of the Interior, and others.

3.

BPI was incorporated as an Illinois not-for-profit cor-poration in 1969 and since that time has functioned as a public interest law and research center.

It has extremely limited re-sources.

It is funded by contributions and grants from indivi-duals, business and foundations, and occasionally by an award of attorneys fees.

BPI has been determined by the Internal Revenue Service to be an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 USC 5501(c)(3)), exempt from taxation under section 501(a) of the Code.

6.

Most of PCCI's costs and expenses of carrying on the-litigation to prevent construciton of Bailly, including the sala-ries of myself and Jane M. Whicher, has been paid by BPI.

Any. fees awarded for my services in this case will be paid to BPI.

7.

In May and June 1982 I prepared a written record (set forth in paragraphs 8 and 9 hereof) of some of the-professional time I estimate having spent on the NRC proceedings concerning the application of Northern Indiana Public Service Company (NIPSCO) for an extension of the Bailly construction permit and on'the proceed-ings before the NRC and the United States Court of Appeals for the l

District of Columbia concerning the short pilings proposal for construction of the Bailly plant.

The primary sources which I used to refresh my recollection and to reconstruct the time which I spent are copies of pleadings, briefs, and other documents filed with the NRC and with the Court of Appeals for the District of Columbia Circuit, internallegalandfactualresearchmemorand$.

and my appointment calendars for the years 1978 through 1981.

For each activity I recorded only what I believe to be the least amount of time I actually spent.

I have no doubt that I actually spent substantially more time than is recorded herein.

8.

The written record with respect to the proceedings con-cerning NIPSCO's application for an extension of the Bailly con-struction permit, referred to in paragraph 7 hereof, is as follows:

DATE ACTIVITY HOURS 2/19/79-Review NIPSCO lecter to NRC of 7/7/79, 2/27/79 draft, edit and finalize Request for Hearing, filed 2/27/79.

4.0 6/11/79-Legal and factual research, draft, review, 6/29/79 edit and finalize Joint Supplement to Requests for Hearing, filed 6/29/79.

15.0 9/17/79-Review NIPSCO letter to NRC of 8/31/79; 10/3/79 prepare and finalize Amendment to Requests for Hearing, filed 10/3/79.

2.0 t

l 11/27/79-Review Notice of Opportunity, factual and 12/20/79 legal research; draft, review, edit and-l finalize Porter Cour.ty Chapter Petition l

for Leave to Intervene and Request for

~ Hearing, and Petitions for Waiver of Exception and for Rule Making, all filed 12/20/79.

40.0 1/22/80-Review submission of NIPSCO of.1/18/81 and 1/24/80 of NRC staff of 1/23/80.

4.0

DATE ACTIVITY h0URS 8 -

-1/22/80-Review NIPSCO Motion for Establishment of 2/4/80 Schedule; draft, review, edit and finalize Answer to NIPSCO Scheduling Motion, filed 4

2/4/80.

5.0 c

2/19/80-Prepare and finalize Motion for (1) Re-2/20/80 consideration and (2) Continuance, filed 2/20/80.

2.0 2/18/80-Draft, revise, edit and finalize First 2/26/80 Supplement to Petition for Leave to o

Intervene, filed 2/26/80.

10.0 2/27/80 Review Supplemental Petition of State of Illinois, prepare and finalize Notice of Joinder and Adoption, filed 2/27/80.

3.0 l

3/3/80-Prepare for Prehearing Conference, including -

3/11/80

- review of NIPSCO and NRC staff submissions of 3/7/80.

14.0 fff28-Attend Prehearing Conference in Valparaiso.

10.0 3/20/80 Prepara and finalize Notice of Service and accompanying documents, filed 3/20/80.

2.0

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3/20/80-Prepare and finalize Notice of Filing and 3/31/80 accompanying affidavits, filed 3/31/80 3.0 4/1/80-Prepare and finalize Brief Re Contentions 4/10/80

. 4 and 5 and Ash rond Seepage, Brief in Support of Contention 1, Views Concerning Prehearing Conference transcript, and Notice Concerning Grabowski-Submissions, all filed 4/10/80.

16.0 5/2/80 Meeting with counsel for NRC Staff, NIPSCO, and State of Illinois re contentions.

5.0 6/5/80-Review Provisional Order Following Special 6/30/80 Prehearing Conference, draft, review, edit and finalize Objections.co Comments On, Requested Revisions of and Reworded Contentions l

in Response thereto, filed 6/30/80.

20.0 i

8/13/80-Review Order'Following Special'Prehearing 8/18/80

- Conference, pregare and finalize objections thereto, filed

/18/80.

6.0 l

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DATE ACTIVITY HOURS 8/19/80 Prepara and finalize Notice of Deposition of Eugene M. Shorb, filed 8/19/80.

1.0 8/18/80-Prepare, review and finalize First Request to

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8/25/80 NIPSCO for Production of Documents, filed 8/21/80, Responses to t'he Board's Questions on Short Pilings Issue, filed 8/25/80, Motion Concerning Environmental Impact Statement, filed 8/25/80.

15.0 8/26/80-Prepare, review, edit and finalize Arguments 8/28/80 in Support of the Admissibility of " Newly-Filed Contentions," filed 8/28/80.

4.0 9/3/80-Prepare, review and finalize Reply to Staff 9/8/80 Position on Newly-Filed Contentions and Answer to Staff Motion to Consolidate, Response to NIPSCO's Request for Consolidation of-Replies, and Request for Extension of Time to File Reply, 4

all filed 9/8/80; prepare for deposition of Eugene M. Shorb.

10.0 l

9/9/80 Take deposition of Eugene M. Shorb.

6.0 T

9/2/80-Prepare, review and edit. Brief in Support of 9/15/80 Appeals of City of Gary, et al. from Order i

4 Denying Petitions to Intervene, filed 9/15/80..

8.0 9/15/80-Prepare and finalize Notice of Depositions of 1

9/18/80 Edmund A. Schroer and Horace P. Lyle, filed 9/17/80; First Request to NRC for Production of Documents and Second Request to NIPSCO for

. Production of Documents, both-filed 9/18/80.

8.0 9/26/80 &

Review documents produced by NIPSCO and prepare 9/29/80 for deposition of Eugene M. Shorb.

5.0

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9/30/80 Take depositions of Eugene M. Shorb and j

Russell J. Bohn.

6.0 10/1/80-

.Prepara for and Present-Oral Argument before 10/2/80 Appeal Board.

4.0

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10/6/80-Review and finalize Reply to NIPSCO Response 10/10/80 Newly-Filed Contentions,. filed 10/10/80.

2.0 r'

10/13/80-Prepare and finalize-Motion to Compel.

10/14/80 Production'of Documents and Answer to NIPSCO's 1 Motion for'a Protective Order, filed 10/14/80.~

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DATE ACTIVITY HOURS 10/16/80-Meet with potentici expert witness, prepare 10/17/80 and finalize Motion Concerning Deposition of M. David Lynch, filed 10/17/80.

6.0 10/20/80-Prepare for and take deposition of Russell 10/21/80 J. Bohn.

5.0 10/22/80 Prepare for, edit and finalize Partial Answer in Opposition to Motion for Protective Order, Motion to Extend Time to Complete Answer, Second Motion to Compel Production of Documents by NIPSCO, Notice of Deposition of Eugene W.

O'Rorke, all filed 10/24/80.

6.0

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11/3/80-Prepare and finalize Third Motion to Compel 11/6/80 Production of Documents by NIPSCO, Answer to NIPSCO's Motion for Protective Order, filed 11/6/80.

4.0 11/10/80-Prepare, review, edit and finalize Motion to 11/13/80 Suspend Litigation proceedings, filed 11/13/80.

5.0 11/19/80 Review and finalize Response to NRC Staff Motion for Protective Order, filed 11/19/80.

2.0 11/24/80 Review and finalize Response to GE's Motion for Protective Order with Respect to Notice of Deposition, filed 11/24/80.

2.0 1/5/81-Review and finalize Obj ections to Memorandum 1/9/81 and Order of December 24 and Motion for Recon-sideration and Motion for Certification or' Re-ferral, all filed 1/9/81.

8.0 1/19/81-Review documents and prepare contention con-1/27/81 cerning NIPSCO's letter of 11/26/80, letters to counsel for NIPSCO and to Director of National Park Service, all dated 1/27/81.

6.0 1/29/81-Review documents and meet with ootential ex-t 1/30/81 pert witness.

6.0 2/19/81-Review and finalize Response in Support of the 2/26/81' Admissibility of Contention 13, filed 2/26/81.

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3/2/81-Prepare, review and finalize Contention 14 3/6/81 and Motion for the Admission of Contention 14, filed 3/6/81.

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DATE ACTIVITY HOURS 3/9/81-

' Prepare, review, edit and finalize Third 3/20/81 Request to NIPSCO for Production of Docu-ments, First Set of Interrogatories to NIPSCO, Motion for Order Under 10 CFR s

$2.740(e), all filed 3/20/81.

10.0

-3/23/81-Review March 5,1981 NRC Staff letter to 3/31/81 NIPSCO Safety Evaluation Report, legal research, prepare and finalize Notice of Intention to Seek Stay, filed 3/31/81.

10.0 4

4/2/81-Prepare, review and finalize (1) Motion to 4/7/81-and Reconsider Memorandum and Order of March 4/13/81 30, 1981, denying O'Rorke deposition and (2) completion of answer in opposition to General Electric's Motion for Protective Order, filed 4/13/81.

5 4/15/81-Review and finalize Motion for Leave to 4/16/81 File Reply and Reply in Support of Motion for Order under 10 CFR 52.740(e), filed 4/16/81.

2 4/17/81-Review and finalize Motion to Compel Answers 4/20/81 to First Set of Interrogatories to NIPSCO, filed 4/20/81.

2 4/24/81-Review documents, prepare and file answers 5/11/81 to NIPSCO's First Set of Interrogatories and Motion to Cogel Production of Documents by NIPSCO filed 5/11/81.

8 5/12/81-Prepare and finalize amended Notice of Depc-5/19/81 sitions, filed 5/12/81 and Second Set of In-terrogatories to NIPSC0; Fourth Request to i

NIPSCO for Production of Documents ; Applica-tion pursuant to 10 CFR $2.720 (h)(2)(1);-

Notice of Deposition of James G. Keppler; Second Request to the NRC for the Production of Documents; Application pursuant to 10 CFR 52.720 (h)(2)(ii); First Set of Interrogator-l ies to the NRC staff; and Amended Notice of Depositions; all filed 5/19/82.

10 5/21/81-Review documents filed by.NIPSC0; review

-6/4/81 documents produced in discovery; prepare for deposition of Edmund A. Schroer.

10 6/5/81 Take deposition of Edmund A. Schroer.

6 6/ 8./ 81-Review and finalize Second Application pur-6/9/81 suant to 10 CFR 52.720(h)(2)(i); Notice of Deposition of Owen Thompson and E. L. Jordan';

Third Request to the NRC for production of documents; Notice of Deposition of J. W..Dunn; all filed 6/9/81.

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DAIE ACTIVITY HOURS 6/10/81 Review and finalize Motion for Leave to File Reply Brief and Answer to NIPSCO's Motion to Compel, all filed 6/10/81.

4 6/11/81 Prepare for deposition of Edmund A. Schroer.

2 6/12/81 Take deposition of Edmund A. Schroer.

5 6/15/81-Prepare and finalize answer to NIPSCO's 6/16/81 Motion for Establishment of Schedule, filed 6/16/81; attend deposition of Horace P. Lyle,

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8 6/17/81-Prepare and finalize Response to General 6/18/81 Electric's Motion for Extension of Time; Notice of depositions of Harold Ricca and James F. Purcell; Motion for Leave to File Reply Brief; Reply Brief; First Application for Subpoenas; all filed 6/18/81.

6 6/19/81-Prepare and finalize Response to NIPSCO's 6/23/81 Motion for Protective Order and Motion to Compel Answers to Interrogatories 9 and 6(d),

t filed 6/23/81.

3 6/23/81-Review documents and prepare for deposition of 6/29/81 Eugene M. Shorb; prepare and finalize answer to NIPSCO's Request for Reconsideration; Notice of depositions and letter to counsel for NRC staff.

10 6/30/81 Take deposition of' Eugene M. Shorb.

5 7/1/81-Prepare and finalize answers and objections of 7/8/81 PCCI to NIPSCO' Second Set of Interrogatories;.

Supplement to Notice of Intention to Seek Stay; Pbtion to Compel Documents by NIPSC0; all filed 7/8/81.

10 7/9/81-Prepare and finalize Motion to Extend Time and 7/10/81 Motion to Compel Further Staff Response and Production of Documents, filed 7/10/81.

4 7/13/81 Prepara for deposition of Dean H. Mitchell.

_3 7/14/81 Take deposition of Dean H. Michell; review of documents in Chesterton public document room.

4 7/15/81-Prepare and finalize Notice of Deposition of 7/17/81.

M. David Lynch.and Notice of Withdrawal of i

Motion to Compel Deposition of M.

David Lynch, filed 7/17/81.

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DATE ACTIVITY HOURS 7/20/81-Review documents to prepare for deposition of 7/23/81 Russell J.

Bohnt. prepare and finalize Motion for Clarification on Reconsideratioh of Orders Concerning Discovery, filed 7/22/81; Response to NIPSCO's Motion for Protective Order; filed 7/23/81.

10 7/28/81 Take deposition of Russell J.

Bohn.

6 7/29/81-Prepare and finalize Fifth Request to NIPSCO 7/31/81 for Production of Documents; Third Set of Interrogatories to NIPSCO; both filed 7/30/81; Fourth Request to the NRC for Production of Documents; Second Application Pursuant to 10 CFR S2.720 (h) (2) (ii); Fourth Set of Interrogatories to NIPSCO; Second Set of Interrogatories to the NRC Staff; Motion for Leave to Initiate Discovery; Sixth Request to, NIPSCO for Production of Documents; letters to counsel for NRC staff and to NIPSCO; and Second Application for Subpoenas; all filed 7/31/81.

10 8/1/81-Prepare and finalize Answers and Objections 8/3/81 to NIPSCO's Third Set of Interrogatories.

6 8/3/81 Prepare for and participate in conference call.

2 8/4/81-Prepare and finalize Response to NIPSCO's 8/5/81 Motion to Compel Answers to Its second Set of Interrogatories, filed 8/5/81.

2 8/6/81 &

Review and finalize dotions to Compel, to 8/10/81 Extend Time and Necessaries of Depositions, filed 8/10/81.

3 8/11/81 Review and finalize discovery documents filed 8/11/81.

5 8/13/81 Prepare for deposition of Russell J. Bohn.

4 8/14/81 Take deposition of Russell J.

Bohn.

7 8/17/81 Prepare for deposition of M.

David Lynch.

4 8/18/81 &

Take deposition of M. David Lynch.

10 8/19/81 8/20/81 Prepare for deposition of A.P. Severance.

3 8/21/81 Take deposition of A.P.

Severance.

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DATE ACTIVITY HOURS 8/24/81-Review discovery document filed by NIPSCO.

6 8/26/81 8/27/81 Revieu NIPSCO Motion to Terminate Proceedings.

1 9/8/81-Prepare, review and finalize Response to 9/10/81 NIPSCO's Motion to Terminate Proceedings, filed 9/10/81.

2 10/1/81 Prepare and finalize Motion Concerning Excavation, filed 10/1/81.

4 10/12/81-Review NIPSCO's Site Restoration Plan and 12/9/81 revise Site Restoration Plan; discussions with experts concerning same; discussions with counsel for NRC staff and NIPSCO concerning same; prepare and finalize Motion to Compel NIPSCO to Implement Its Revised Plan for Site Restoration.

10 1/4/82-Legal research; prepare, revise and 1/8/82 finalize Motion for an Order Imposin Condition Upon Withdrawal of NIPSCO'g a s

Applications, filed 1/8/82.

5 2/25/82-Prepare and finalize Response to NIPSCO's 3/1/82 Motion for Reconsideration of Order dated 1/29/82, filed 3/1/82.

4 3/22/82-Prepare and finalize Supplement to Position 3/23/82 Regarding Timing of Termination of Proceedings; Motion for Leave to Take Limited Discovery; First Interrogatories to NIPSCO concerning Site Restoration; all filed 3/23/82.

4 4/14/82-Review Memorandum and Order of 4/12/82 and 4/29/82 prepare and finalize objections to and requested modifications of proposed order terminating proceedings, filed 4/29/82.

4 5/10/82 Review Memorandum and Order terminating proceedings, dated 5/6/82.

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5/17/82-

. Prepare application for and award of l

l 5/28/82 attorneys fees and expenses and affidavit in support.

10 6/1/82-

- Review and finalize application for award of 6/4/82 attorneys fees and expenses, filed 6/4/82.

5.

Total 562 y

9.

The written record with respect to the proceedings con-cerning NIPSCO's short pilings proposal, referred to in paragraph 7 hereof, is as follows:

DATE ACTIVITY HOURS 8/28/74 Review NIPS 00 letter of 6/13/74 to AEC and prepare letter of 8/28/74 to counsel for NIPSCO and AEC Staff.

2.0 10/10/77-Review and transmit correspondence 12/31/77 from and to NRC and NIPSCO and telephone conversations with counsel for NRC Staff and for NIPSCO.

10.0 1/31/78-Review correspondence from NRC to 3/8/78 NIPSCO and telephone conversations with staff counsel.

3.0 3/10/78-Review correspondence and technical 8/11/78 documents from NRC and NIPSC0; attend meetings with counsel for State of Illinois and with potential experts; attend meetings with representatives of NIPSCO'and NRC; telephone conversations and correspondence with counsel for NRC and NIPSCO.

10.0 9/1/78-Legal and factual research, draft, 11/1/78 r eview, edit and finalize Petition With Respect to Short Pilings Proposal, filed 11/1/78.

30.0 12/4/78 Review letter of 12/1/78 from NIPSCO and to NRC.

1.0 12/14/78 Review and discuss with co-counsel Commission Memorandum of 12/11/78.

1.0 1/10/79 Review NIPSCO submission of 1/8/79.

2.0 1/12/79 Review NRC Staff submittal of 1/10/79.

2.0 6/13/79 Review NRC letter of 6/8/79 to ACRS.

0.5 6/29/79 Review NRC Notice of ACRS meeting.

0.5 i

7/16/79 Review NRC Staff Submission of 7/10/79.

1.0 7/19/79 Attend ACRS Subcommittee meeting in Portage, Indiana.

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HOURS 7/30/79 Review 'ACRS letter of 7/16/ 79 end NRC Order of 7/25/79.

1.0

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8/1/79-Draft, review, edit and finalize 8/14/79 Petitioners' Comments on ACRS' 7/16/79 letter, filed 8/14/79.

10.0 8/17/79 Review 111PSCO s0bmission'of 8/14/79 and NRC ' Staff' submission of 8/15/79.

1.0 10/3/79 PrepareandfinalizeMoth.ontoConsoli-date, filed 10/3/79.

1,7 1.0 10/30/79 Review NIPSCO submicsicii 'of 10/10/79 and NRC Staff submissionmf 10/23/79; prepare and finaliz'e' Reply.in Support of Motion to Consolidate, filed 10/30/79.

1.0 12/13/79-Review NRC Memorandum' and Order of 12/21/79 12/12/79.

5.0 x

1/2/80-Lega'l research, meet with co,::ounsel, 2/13/80 draft, review and' finalize Petition for Reviw iii People fof ' the '3 tate of Illinois,

et cl.iv. NRC, t.t ia G in D.' C. Circuit, file,d 2/13/80.:

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s 5/28/80-Prepcration and finali'ze( of Petitioners '

6/3/80 Motion to Entend Time for' Filing' Briefs, filed 6/3/80'.C d.0

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6/11/80-Preparation and, fin'alize Supplement to 6/12/80 Petitioners ' Motion t'o Extend Time For-

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i 6/12/80-Legak research; draft; revie% aditL an,d, 7/30/80 finalize Brief for Petitioners,-file 6-7/30/80.

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11/4/80-Review Brief to Respondents,. legal re-se' arch, i rttit, review, edit and fint.liz

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3/25/81-Prepare and finalize Supplementalu3rief 3/26/81 for Petitioner;s, filed *3/26/81.

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4/9/81' Present oral argument.

1.0 4/9/81 Meet with counsel for NRC, preparation of letter to Clerk of Court, filed 4/9/81 1.0 7/6/81 Review Judgment and Memorandum of Court of Appeals, filed 7/1/81, 1.0 8/24/81-Consideration of further-proceedings 8/25/81 before NRC.

2.0 TOTAL 174.0 10.

BPI has incurred substantial out-of-pocket expenses in the proceedings concerning the shorr pilings proposal and construction permit extension.

Among those expenses are some for copying of documents for filing and service and some for out-of-town travel, for which I believe an attorney in 5

private, practice would ordinarily charge clients separately.

Based upon a review of BPI's file and records, I believe the BPI has incurred at least the following expenses:

Copying:

Approximately 20,000 pages at 54 per page

$1,000.00 Travel:

Valparaiso, Indiana, March 12, 13, 1"980 for prehearing conference 135.95 l

Washington, D.C.,

April 8, 9, 1981 for oral argument in Court of Appeals 525.00 i

1981 for document Bailly site, May 4, l

inspection 39.50 l-I

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Har:xmond, Indiana,~ June 5,'12, 15 and 30 and' e

July 14, 1981 for depositions of NIPGC0 officers and employees 140.95' s

TOTAL.

$1,841.45 Further affiast says not.

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Robe)tT J. VOLLEli I

i Subscribed and sworn t'o' before me this 1/i/. day of June, 1982.

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s AFFIDAVIT OF JANE M. WHICHER JANE M. WHICHER, being duly sworn, states as follows:

1.

That I am one of the attorneys of record for BUSINESS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST, INC.

("BPI"), a party to the Bailly proceedings.

2.

That I as a graduate of Iowa State University (B.S. 1971) and of the University'of Iowa College of Law (J.D.

1976), and a member of the Order of the Coif.

3.

That from June, 1976 until June, 1979, I was employed as an associate at the law firm of Morrison, Hecker, Curtis, Kuder, and Parrish, Kansas City, Missouri, where I engaged in a variety of litigation activities.

4.

That from July,1979 until May,1980, I was employed as a Bigelow Teaching Fellow and Lecturer in Law, University of Chicago Law School, Chicago, Illinois, where I taught a legal writing and appellate ad' ocacy course for first-year law students.

v 5.

That I am a member of the bar admitted by exmination l

in the following states:

Iowa (19 76), Missouri (19 76), and l

Illinois (1980), and admitted to practice before the state courts of' Iowa, Missouri and Illin'ois and the United Star.es District l

Courts for the Western District of Missouri and the Northern District of Illinois.

"?^ ^ ^""I '7 S206 04

{DRADOCK 03000367 PDR t

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. 6.

That since April 15, 1980, I have been employed by BPI as an attorney, and from April 15, 19 80 to May 15, 19 80, I worked approximately half time and, since May 15, 1980, I have worked full time at BPI as a salaried staff attorney.

Under the terms of my employment any fees awarded for my services will be paid to BPI.

7.

That I was employed by BPI to work exclusively on proceedings involving Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1) CPPR-104, Docket 50-367, including proceedings involving the proposed extension of the latest completion date for the Bailly construction permit and the proceedings concerning NIPSCO's plans for the plant to be built on short pilings.

8.

That from the time I commenced my employment at BPI, until August 26, 1981, I worked exclusively on the Bailly litiga-tion described in paragraph 7 of this Affidavit, and on no other matters.

r 9.

That my duties with respect to the Bailly litiga-tion included drafting discovery requests, researching and drafting discovery motions, reviewing documents and discovery responses, preparing for and taking depositions, consulting with experts and witnesses, general hearing preparation, and research and drafting of the brief and reply brief in support of the petition to the-Court of Appeals for the District of Columbia Circuit with respect to the short pilings: issue.

l^

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s 10.

That from April 15, 1980 to May 15, 1980, I worked j

approximately 20 hours2.314815e-4 days 0.00556 hours 3.306878e-5 weeks 7.61e-6 months per week on.he Bailly litigation; and that from May 15, 1980 to August 26, 1981, I worked a minimum of 40 hours4.62963e-4 days 0.0111 hours 6.613757e-5 weeks 1.522e-5 months per week on the Bailly litigation, except for approximately ten days of vacation and personal time when I was not in the office.

11.

That in May 1982 I prepared the detailed description of time spent contained in paragraph 12 of this Affidavit, and that in doing so I reviewed my personal calendars, pleadings in the con-struction permit extension proceeding, legal and factual research memoranda and files, notes of meetings and correspondence, and con-sulted with Robert J. Vollen.

For each activity I recorded only what I believe to be the least amount of time I actually spent, and I have no doubt that I actually spent substantially more time than is re-corded herein.

12.

The following describes tDae spent by me in the above proceedings.

Date activity Hours

4/15/80 Meeting with Vollen to discuss background of case.

2.0 4/16/80-Review of ano familiarization with files and plead-5/ 15/80 ings in construction permit, construction permit extension, petition to suspend or revoke permit, and short piling proceedings and review of NRC pro-cedural regulations, and meetings with Vollen to discuss same.

Review of transcript of prehearing conference.

55.0 (15) f Those hours contained in parentheses are for work done with respect to the short pilings plan referred to in paragraph 7 of this Affidavit; all other hours are for work done with respect to the construction permit extension proceeding.

v.

1 Date Activity Hour.

5/2/80

' Meeting with NRC staff counsel, State of Illinois counsel, and NIPSCO' counsel regarding contentions; conferences with Illinois counsel and Vollen re-garding same.

6.0 5/5/80 Meeting with representatives of Porter County Chapter Intervenors and others regarding strategy for hearing preparation.

2.0 5/19/80-Continue-familiarization with case.

Conferences 5/30/80 with Vollen regarding status, strategy, possibi-lity of filing collateral NEPA lawsuit; begin re-

+

search on NEPA suit.

65.0 ( 7.0) i 6/5/80-Receipt and study of provisional order following 6/6/80 special pre-hearing conference; conference with Vollen regarding same and response.

14.0 l

6/9/80--

Meetings with Vollen regarding objections to pre-6/30/80 hearing order; draft and revisions of pleading in response to provisional order; review, discussion and revisions of " reworded incorporated conten-tions".

Legal research on contentions and proper scope of proceedings.

55.0 6/30/80-Review of comments of other parties to provisional 7/5/80 order following special pre-hearing conference; conference with Vollen regarding short pilings ap-peal; study of agency record in construction per-mit hearing, particularly transcript; study of agency record in short pilings appeal; first draf t of brief to D. C. Circuit; begin legal research for short pilings appeal.

2.0 (45.0) 7/7/80-Legal research and revisions to draft of brief to 7/12/80 D. C. Circuit in short pilings appeal.

(50.0) 7/21/80-Revisions of draft brief; participation in office 7/25/80 conferences with Robbins, Hammasfar, Sekuler, Osann and Graham regarding brief; legal research for same; citation and authority checking for -brief.

(35.0) 7/28/80 Final revisions 3of brief.

-( 6.0) 8/4/80-Legal"research for NEPA lawsuit; _ draft of petitio'n, 8/15/80

. motion for stay and memoranda of law in' support of same;. drafts of office' memos regarding various as-pects of NEPA suit; legal'research and drafting memorandum concerning stay of construction pending appellate review of short pilings' decision.

60.0 (20.0) t

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Date Activity Hours

8/12/80-Receipt and study of Order Following Special Pre-8/15/80 hearing Conference; conference with Vollen regard-ing same; strategy planning for discovery in pre-paration for hearing; preparation of objections to Final Order and notice of Shorb deposition.

32.0 8/18/80-Receipt -and review of Staff and NIPSCO objections 8/29/80 to order; NIPSCO and Staff response to short pil-ings questions; preparation of PCCI's response to short pilings question; conferences with Vollen and Illinois regarding same; preparation of PCCI's first request to NIPSCO for production of docu-ments; preparation of Motion Concerning Environ-mental Impact Statement; conferences with Illinois counsel regarding same; notice of Bohn deposition; preparation of PCCI's pleading in support of newly-filed contentions ; review of Order Supple-menting Order Following Special Pre-hearing Con-ference.

75.0 9/1/80-Preparation for deposition of Shorb, including 9/5/80 review and selection of documents; preparation of Porter County Chapter Intervenors brief in support of appeals of City of Gary, et al. and of Dr. George Schultz, telephone conferences with D. Cohen and office conferences with Vollen re-garding brief, reply to Staff re newly-filed con-tentions and motion to consolidate.

45.0 t

9/8/80 Preparation for deposition of Shorb.

7.0

'9/9/80 Deposition of Shorb in Hammond, Indiana.

6.0 9/10/80-Finalization of reply to Staff position on newly-9/12/80 filed contentions and answer to Staff motion to consolidate and NIPSCO's request for consolidation of replies and extension of time; study of NIPSCO memorandum of law on EIS.

17.0 9/15/80-Preparation of PCCI's first request for designation 9/19/80 of witness, notice of Schroer and Lyle depositions, and First Request to NRC for Production of Docu-ments; legal research on points raised in NIPSCO memorandum of law; Second Request to NIPSCO for Production of Documents.

40.0 9/22/80-Receipt and study of -various orders and pleadings, 9/26/80& -preparation for continuation of Shorb~ deposition 9/29/80 and for deposition of Schroer, including review of' documents and filings.

48.0 9

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.Date Activity Hours

9/30/80 Depositions of Shorb and Bohn in Haanond, Indiana.

6.0 10/1/80-Receipt and study of filing and board order, 10/3/80 meetings with Vollen and Illinois counsel re plan for discovery.

18.0 10/6/80-Preparation of motion to compel production of 10/10/80 documents by NIPSC0; receipt and review of various Staff.and NIPSCO filings; notice of deposition of Severence; conferences with Vollen re course of discovery and deposition of Lynch.

40.0 10/13/80- Preparation of motion to compel production of 10/17/80 documents and answer to NIPSCO motion for protect-ive order; study of General Electric motion for protective order; preparation of Motion Concerning Deposition of Lynch, including legal research re location of deposition.

45.0 10/20/80- Legal research concerning discovery from 10/22/806 General Electric, effect of filing appearance, 10/24/80 discovery from third parties; answer to motion for protective order; second motion to comoel production of documents by NIPSC0; notice of O'Rorke deposition; Bohn deposition continued.

35.0 10/23/80 Review of documents at Bailly plant site.

2.0 10/27/80- Meeting with Herb Read re dewatering; Receipt 10/31/80 and study of NIPSCO response to document request; 4

preparation'of motion to compel and answer to,

NIPSCO motion for protective order; gather ma-terials for Joint Appendix in D. C. Circuit brief, meeting with Illinois counsel re same.

35.0 ( 5.0).

11/3/80-Receipt and study of NRC brief to.D..C. Circuit 11/6/80 in short pilings appeal; begin research for reply brief; supervise printing of principal brief and appendix; discussion with Vollen regarding motion to suspend litigation proceedings and' overview of litigation; preliminary draft of motion to suspend litigation activities.

8.0 (32.0) 11/10/80- Legal research for and revisions of Reply Brief; 11/14/80 revision and filing of motion to suspend litiga-tion proceedings; receipt and study of GE filings and conference with Vollen re response.

15.0.(18.0) 11/17/80- Preparation of response to Staff motion for pro-11/21/80 tective order; receipt and study of Sholly decision tel' phone conferences and legal research re1same; e

with Sholly attorneys; receipt and study of briefs in Sholly.

2.0 (48.0)-

x, I

Date Activity Hours

11/24/80- Work on Reply Brief; supervision of printing of 11/28/80 opening brief and appendix; response to GE motion for protective order; review of documents produced by NRC staff 15.0 (25.0) 12/1/80-Work on Reply Brief; meetings with co-counsel re 12/5/80 same and revision of brief; motion to extend time to file Reply Brief; study of NRC (Tedesco) ques-tions to NIPSCO.

15.0 (30.0; 12/17/80- Finalizing, proofreading and checking authorities 12/19/80 cited in Reply Brief; arrange for printing, filing (21.0) and service of same.

12/29/80- Receipt and study of Memorandum and Order denying 12/31/80 newly-filed and short pilings contentions; tele-phone conferences with Vollen regarding same and reply to same; draf t of petition for rehearing on short pilings contentions.

22.0 1/5/81-Preparation of Objections to December 24 order 1/9/81 and motions for reconsideration and for certifica-tion of referral of same.

30.0 1/12/81-Receipt of Moffett lett'er and Keppler memorandum; 1/16/81 preparation of contention re Keppler memorandum; investigation of show cause proceeding; preparation of comment on proposed rulemaking (Design and Other Changes in Nuclear Power Plant Facilities After Issuance of Construction Permit).

35.0 1/19/81-Draft of contention '-; factual research (includ-1/23/81 ing review of Staff documents and NIPSCO reports).

30.0 1/26/81-Preparation for meeting with Don Uarner (possible 1/29/81 expert witness - hydrogeologist); receipt and review of pleadings regarding Keppler contention and response to motion for reconsideration and certification or referral and letter from Toby Moffett regarding emergency planning.

22.0 1/30/81 Meeting with hydrogeologist and Attorney General Office and conference with Vollen and Illinois coun-sel re same.

6.0 2/2/81-Investigation of show cause proceeding; planning 2/6/81 meeting with Illinois counsel; finalization of I

rulemaking cocments.

20.0 1

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1 Date-

-Activity Hours

2/9/81-Meeting with Attorney General's office regarding

-2/13/81 dewatering; review of dewatering documents and j

conferences with H. Read and co-counsel re same and re strategy of case; receipt and study of l

Staff pleadings, response to Contention 13.

35.0 2/16/81-Preparation of response to NIPSCO's pleadings 2/20/81 concerning production of General Electric's documents; legal research re admission of Con-i tention 13 and draft response; investigation j

of show cause proceeding.

30.0 l

a 2/23/81-Receipt and ' study of NIPSCO annual report; pre-2/27/81 paration of D. C. Circuit supplemental brief; i

receipt and study of Board orders on certification petition; office conference with Vollen regarding E

hydrogeological expert testimony;. preparation of Contention 14 and motion for admission thereof; prepare response re General Electric documents and j

i brief-on admission of Contention 13.

40.0 3/2/81-Finalization and filing of motion on Contention 3/6/81 14; factual and legal research for D. C. Circuit Supplemental Brief.

3.0 (30.0:

I 3/9/81-Receipt and study of Sholly rehearing denial 3/13/81 decision.and-briefs; meeting with Attorney General's Office; discovery update; receipt of 1

filings re dewatering; conference with Vollen re draft of D. C. Circuit Supplemental Brief; submit rulemaking comment on proposed amendments to 10 CFR Part 50.

-30.0 ( 8.0.

3/16/81-Preparation of and filing PCCI's Third Request to r

3/20/81 NIPSCO for Rroduction-of Documents and First Set of Interrogatories-to NIPSCO and motion for order

^

i under $2.740(e)(3); work on Supplemental Brief.

33.0 ( 2.0~.

i 3/23/81-3/24 meeting with co-counsel on Bailly brief for i

3/27/81 D. C. Circuit; preparation of interrogatories to-NRCfStaff; draft of notice of intention to seek stay; research for rulemaking comment on proposed changes to 10 CFR Part 2; finalize D._C. Circuit-Supplemental Brief; receipt of letter from Eichhorn re documents and conferences with Vollen and Illinois-i counsel re document production.

' 25.0 (20.0' 3/30/81-Finalization of notice of intention to seek' stay;

.4/3/81 receipt and study of 3/30 Board orders and begin preparation ~of response to.same; finalization'of

'rulemaking comment;; factual and legal research for Vollen's. oral argument preparation; receipt and study'of NIPSCO's Supplemental Brief.-

20.0 (20.0:

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Date Activity

$ours*

4/6/81-Preparation for oral argument, including moot 4/9/81 court; receipt and study of order denying motion to suspend proceedings and conference with co-counsel re strategy; study of Staff filing re-garding Contention 14; acrondance at and second chair oral argument in D. C. Citcuit; prepare and file letter to Court with memorandum referenced during argument.

5.0 (30.0) 4/13/81-Receipt and study of NIPSCO response to PCCI's 4/17/81 first interrogatories and Staff response to motion under $2.740(e)(3); receipt and study of NIPSCO's First Set of Interrogatories to PCCI and office conference with Vollen regarding objection to same; preparation and filing of motion to reconsider 3/30 order and opposition to General Electric mo-tion for protective order; reply regarding 52.740(e)(3); motion to compel re First Sec of Interrogatories.

38.0 4/20/81-Preparation and filing of motion to compel NIPSCO 4/24/81 interrogatory responses; meeting with Attorney General s Office re interrogatory responses and expert testimony; preparation of interrogatory responses.

40.0 4/27/81-Receipt and study of-NIPSCO responses to PCCI's 4/30/81 Third Request for Production of Documents; Request

'for Extension of Time; arrange for document pro-duction; set up dates for depositions; meeting with Attorney General re interrogatory responses; planning meeting for document production.

32.0 5/4/81 Attendance at document production at Bailly plant site.

6.0 5/5/81-Review of documents and selection of documents 5/8/81 for copying; preparation of letter to Eichhorn re documents; finalization of answers of PCCI to NIPSCO's First Set of Interrogatories and motion to compel NIPSCO re third document request.

32.0 5/11/81-Notice depositions of Schroer, Lyle, Severence, 5/15/81 Bohn, Shorb and Mitchell; continue document re-view; conferences with Vollen and D. Cohen re possible intervention in City of Gary appeal; pre-paration of PCCI's Second Set of Interrogatories to NIPSCO, Fourth Document Request to NRC for Pro-duction of Documents, First Set of Interrogatories to NRC Staff, 52.740(h)(2)(1) and (ii) application. 50.0 i

l

Date Activity Hour 5/18/81-Finalization and filing of various discovery 5/22/81 matters; reviewing documents; draft and filing of motion to compel NIPSCO to physically produce documents.

40.0

.5/26/81-Receipt and' study of NIPSCO motion to compel PCCI's 5/29/81 interrogatory responses (first set) and production of documents and order granting General Electric protective order and draft of response to same; completion of document review and supervision of reproduction of designated documents; meeting with Herb Read re interrogatory answers.

42.0 6/1/81-Preparation for deposition of Edmund Schroer; 6/4/81 receipt and study of NIPSCO motion for establish-ment of schedule, and conference with Vollen and i

Illinois counsel re same; study of Second Set of Interrogatories from NIPSCO and preparation of response; supervision of reproduction of designated documents.

38.0 6/5/81 Deposition of Schroer in Hammond, Indiana.

6.0 6/8/81-Preparation of second $2.720(h)(2)(1) application, 6/11/81 deposition notices of Thompson, Jordan and Dunn; ~

third request to NRC for production of documents; study of NIPSCO obj ections to interrogatories for i

response to same; meeting with Attorney General's i.

Office re scheduling motion; receipt and study of i

GE motion, and NIPSCO response to motion to compel physical production of documents, NIPSCO's objec-I tion to PCCI's Second Set of Interrogatories and response to PCCI's Second Set of Interrogatories.

42.0 6/12/81 Deposition of Ed Schroer in Hammond, Indiana.

5.0 6/13/81-Preparation for deposition of Lyle; draft of 6/14/81 response to NIPSCO's scheduling motion; preparation for meeting with Bob Hilty (possible hydrogeologic expert witness).

8.0 6/15/81 Meeting with Hilty, Illinois counsel and H. Read, re dewatering.

7.0 6/16/81 Deposition of Horace P. Lyle in Hammond, Indiana.

6.0 6/17/81-Preparation of first application for subpoenas; 6/19/81 conference with Vollen re list of deponents; pre-paration of reply in support of 52.720(h)(2)(1) application; telephone conference with Oklahoma.

Attorney General re Black Fox appeal status for NEPA filing; meeting with Lake. Michigan Federation k

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Date.

Activity Hours

re dewatering case preparation; review of Illinois' First Set of Interrogatories to NIPSCO; preparation of response to Motion for Establishment of Schedule and GE motions, deposition notices (Ricca and Purcell).

28.0 6/22/81-Telephone conference with Bill Eichhorn re fourth 6/26/81 document request; draft of motion to compel inter-rogatory answers; draft of motion regarding deposi-i tion of Lynch; exchange of documents with HIPSCO counsel; receipt and study of NIPSCO's Third Set of Interrogatories to PCCI, second motion to compel answers regarding Second Set of Interrogatories to Illinois, response to PCCI's Fourth Document Re-i quest, Staff response to scheduling motion, and i

GE response; finalization of rulemaking comment.

40.0 6/29/81 Preparation for Shorb deposition, including review of documents for possible questioning and review j

of transcripts of previous depositions.

9.0

)

6/30/81 Deposition of Shorb in Hammond, Indiana.

5.0 7/2/81 Meeting with Illinois regarding motion. to compel and interrogatory answers; arrange to return omitted documents; begin cataloging produced docu-ments; receipt of telecopy of D. C. Circuit opinion and conference with Vollen re same.

7.0 ( 2.0)

.7/6/81-Preparation and filing of motion for protective 7/11/81 order regarding Dunn dep)osition, motion to compel (Fourth Document Request and motion to extend tLne to respond to Third Set of Interrogatories; preparation of notice of intention to seek stay, motion to extend time for Third Set of Interroga-4 tories to PCCI and motion to compel further Staff t

response and production of documents; receipt of Staff documents and study of same; work-on cata-loging produced documents.

42.0 7/13/81 Preparation for Mitchell deposition and catalog-ing of documents._

9.0 1

7/14/81 Attendance at Mitchell deposition in Hammond, Indiana; review of documents in local Public Documents Room in Chesterton, Indiana.

4.0 I

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_., _ _. -.. _ ~ _.. - _. _.

j 1 -

Date Activity Hours

7/15/81-Legal research regarding requirements of NEPA; 8/18/81 receipt and study of order closing discovery and conference with Vollen and Illinois counsel re response to same; filing pleadings re Lynch deposition.

35.0 7/20/81-Receipt and study of Staff documents re environ-7/25/81 mental impact appraisal and evaluation of NIPSCO request for amendment and conference with co-counsel re same; draft of Third Interrogatories to NIPSCO and Fifth Request for production of docu-ments; preparation of motion for clarification of order closing discovery; meeting with Herb Read; telephone conversation with Diane Cohen; reply to NIPSCO motion regarding depositions; review of docu-ments for Bohn deposition; revision and addition to interrogatories to NIPSC0; receipt and study of NIPSCO Motion to Compel Answers to Second Set of Interrogatories; preparation of response to NIPSCO's motion for protective order; abstract of deposition testimony.

50.0 7/27/81-Revision and filing of interrogatories and docu-7/31/81 ment request to HIPSC0; receipt and study of vari-ous pleadings; draft and filing of Fourth Request to NRC for production of documents, second applica-tion under 52.720(h)(2)(ii), Fourth Set of Interro-gatories and Sixth document request to NIPSCO, Second Set of Interrogatories to NRC Staff and mo-tion for leave to initiate further discovery; second application for subpoenas and review of letters re-garding production of documents and depositions; deposition of Bohn (7/28/81); preparation of re-sponses to NIPSCO's Third Set of Interrogatories.

53.0 8/3/81-Preparation for conference call; conference call 8/8/31 and office conference with Vollen regarding same; draft of response to NIPSCO motion regarding Second Set of Interrogatories; receipt and study of docu-ments from NRC Staff and study of Staff answers to First Set of Interrogatories; receipt and study of l

order summarizing actions taken at conference call; l

draft of interrogatories and document request to Staff; draft of showing of general relevancy in sup-port of applications for subpoenas, deposition no-tices, motion to compel Staff answers and produc-l tion of documents, motion to extend time for taking l

depositions; draft of further discovery filings.

55.0 i

9

. ~

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5 Date Activity Hours

8/10/81-Preparation and filing of application for discovery 8/15/81 on Staff documents, application under 52.720(h)(2)

(ii), Third Set of Interrogatories to Staff, appli-cation under $2.720(h)(2)(1), deposition notices, Seventh Request to NIPSCO for production of docu-4 ments, Fif th Rec uest to Staff for production of documents, amencment of Lynch notice, Fifth Set of Interrogatories to NIPSC0; receipt of discovery re-sponses to NIPSCO from State of Illinois and review of same.

Preparation for deposition of M. David Lynch; draft of motion for protective order; pre-t paration for deposition of Bohn; review of trans-script of previous Bohn depositions and summary of same; deposition of Bohn (8/14/81).

55.0 i

8/17/81-Legal research for and draft of environmental im-8/22/81 pact assessment contentions and brief; preparation for Lynch depositinn, deposition of Lynch (8/18/81

- 8/19/81); preparation for deposition of A. P.

Severance, deposition of Severance (8/21/81).

55.0 i

8/24/81 Receipt of NIPSCO discovery filings and study of 8/26/81 same; revisions of environmental impact statement contentions and brief in support of admission; con-ference with Illinois counsel to arrange for expert testimony on short pilings issues; receipt and l

study of commission orders regarding short pilings j

hearings - and prohibiting installations of pilings.

15.0 ( 8.0) i 8/27/81 Receipt of NIPSCO Motion to Terminate Proceedings l

and conference with Vollen re response.

.5 9/1/81-Conferences with Vollen re site restoration and 9/3/81 termination with prejudice; legal research re ef-feet of termination with and'without prejudice and of obligation to restore site.

9.0 I

9/22/81-Conference with Vollen re site restoration and 10/1/81 negotiations for same; preparation of motion con-carning excavation.

3.5 10/12/81 Receipt and review of NIPSCO's report on site restoration.

- 1. 'O 10/22/81 Arrange for return of produced documents to NIPSCO.

5 11/23/81 Receipt and review of Staff response to PCCI mo-1 i

tion concerning excavation and of NIPSCO's revised site restoration plan; conference with Vollen re

. same.

1.5 12/7/81 - Preparation of motion to compel implementation of 12/9/81 revised site restoration plan.

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Date Activity Hours

12/28/31-Legal research concerning Equal Access 12/30/81, to Justice Act, including review of legis-1/4/82-lative history and fee awards under other 1/15/82, statutes referenced in statute and Congressional 2/8/82-reports; draf t of ' legal memorandum re same.

40.0 2/12/82,,

1/6/82-Conference with Vollen re recovery of fees; 1/8/82 legal research re award of fees under Federal Rule of Civil Procedure 41(a); draft

' Motion for Order Imposing a Condition Upon Withdrawal of NIPSCO's Application.

10.0 2/1/82 Study of NRC and NIPSCO responses to Motion for Order Imposing Condition.

1.0 2/22/82-Prepare. response to NIPSCO Motion for Recon-2/26/82 sideration.

2.0 3/11/82 Conference with Vollen re requesting status report from NIPSCO.

.5 3

3/19/82 &

Receipt of letter from Eichhorn and conference 3/22/82 with Vollen re same; preparation of Su i

to Position and Motion for Discovery. pplement 2.0 4/15/82 Receipt and study of Proposed Order Terminating Proceeding; conference with Vollen re response t

to same.

3.0 4/26/82-Draft of Objections to Proposed Order and of 4/29/82 new Proposed Order; conferences with Vollen re same.

5.0 t

5/10/82-Preparation of Application for Fees and 5/14/82 Supporting Memorandum of Law.

9.0 l.

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1

Date Activity Hours

5/24/82-Preparation of fee Affidavit.

20.0 5/28/82 J

6/1/82-Finalize fee application and supporting 6/3/82 documents.

3.0 Subtotals:(construction permit extension proceeding) 2120.5 (short pilings proceeding) 477.0 Total 2597.5 Further affiant says not.

cA Cx_ h.

\\A JANE ti. WHICHER Subscribed and sworn to before :ac this 4th day of June, 1982.

'?(.c~ C.(. ( Ld fe l'.t s. -

Notary Public t

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AFFIDAVIT OF ROBERT L. GRAHAM IN SUPPORT OF PETITION FOR ATTORNEYS' FEES Robert L.

Graham, being duly sworn on oath, states:

l.

I am an attorney duly authorized to practice

-law in the State of Illinois, the State of California, the United States-District Court for the Northern District of Illinois, the United States Court of Appeals for the Seventh Circuit, the United States Court of Appeals for the District of Columbia, and the United States Supreme Court.

2.

For many years a substantial portion of my law practice ha's involved representation of both plaintiffs and a

defendants in complex actions in federal courts and before federal agencies, in which, by statute or otherwise, provision is made for the payment of attorneys' fees to counsel for pre-I valling plaintiffs.

These cases have involved, inter alia, antitrust cases, securities cases, civil rights cases, agency licensing' proceedings, and class actions of other kinds.

I 3.

As a result of the foregoing, I have had occa-sion to become familiar with the customary hourly rates charged by attorneys in the City of Chicago for their ser-vices in all types of litigation, including administrative agency and relatef proceedings.

In order to update my know-ledge in this regard.for the specific purpose of preparing l

this affidavit, I have examined the current hourly schedule T::;;e.__h6dhA DR ADOCK C o 7

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'of charges in use by the Chicago law firm of Jenner & Block, where I am a partner.

I have also familiarized myself with the background, experience, skill and reputation of Robert J. Vollen and Jane M. Whicher, counsel for BPI and the other groups and organizations commonly referred to as 'orter County Chapter Intervenors in these proceedings.

4.

Based upon my knowledge of the reasonable and customary charges in effect among lawyers in the City of Chicago of like experience, skill and reputation in litiga-tion, including proceedings before administrative agencies, it is my opinion that the reasonable and appropriate hourly rate for the services of plaintiffs' attorneys in this case is as follows:

Robert J. Vollen

$145/per hour S85/per hour

~

Jane M. Whicher 5.

The charges set forth above are for services of lawyers of the skill, experience and reputation of Mr.

Vollen and Ms. Whicher in matters in which fees are charged to and paid by clients on an ongoing basis, without regard to i

the outcome of the litigation.

In litigation such as that involved in this case, it is the prevailing practice in the federal courts to award fees to the prevailing attorneys by applying a multiplier to the above fee schedule,_in order to take into account and compensate the attorneys for the signi-ficance of their contributions to the litigation.

The amount of that multiplier is determined, among other things, by the.

2.

a AFFIDAVIT OF ROBERT L. GRAHAM IN SUPPORT OF PETITION FOR ATTORNEYS' FEES 9

i Robert L. Graham, being duly sworn on oath, states:

1.

I am an attorney duly authorized to practice law in the State of Illinois, the State of California, the United States District Court for the Northern District of Illinois, the United States Court of Appeals for the Seventh f

Circuit, the United States Court of Appeals for the District of Columbia, and the United States Supreme Court.

j 2.

For many years a substantial-portion of my law practice has involved representation of both plaintiffs and I

defendants in complex actions in federal courts and before federal agencies, in which, by. statute or otherwise, provision is made for the payment of attorneys' fees to counsel for pre-valling plaintiffs.

These cases have involved, inter alia, antitrust cases, securities cases, civil rights cases, agency licensing proceedings, and class actions of'other i

kinds.

i 3.

As a result of the foregoing, I have had occa-sion to become familiar with the customary hourly. rates charged by attorneys in the City of Chicago for their ser-I vices in all types of litigation, including administrative agency and related proceedings.

In order to update my know-ledge in this regard for the specific purpose of preparing this. affidavit, I have examined the current hourly schedule e

h

?

,of chargG2 in use by the Chiccgo law firm of Jenner & Block, where I am a partner.

I have also f amiliarized myself with the background, experience, skill and reputation of Robert J. Vollen and Jane M. Whicher, counsel for BPI and the other groups and organizations commonly referred to as Porter County Chapter Intervenors in these proceedings.

4.

Based upon my knowledge of the reasonable and customary charges in effect among lawyers in the City of

. Chicago of like experience, skill and reputation in litiga-tion, including proceedings before administrative agencies, it is my opinion that the reasonable and appropriate hourly l

1 rate for the services of plaintiffs' attorneys in this case is as follows:

S145/per hour Robert J. Vollen S85/per hour Jane M. Whicher 5.

The charges set forth above are for services of lawyers of the skill, experience and reputation of Mr.

Vollen and Ms. Whicher in matters in which fees are charged to and paid by clients on an ongoing basis, without regard to the outcome of the litigation.

In litigation such as that involved in this case, it is the prevailing practice in the federal courts to award fees to the prevailing attorneys by applying a multiplier to the above fee schedule, in order to take into account and compensate the attorneys for the signi-ficance of their contributions to the litigation.

The amount l

c of that multiplier is determined, among other things, by the i

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efficicncy with which the litigation was conducted, the diffi-culty of the litigation, the particular skill and innovation brought to the litigation by the attorneys involved, and bene-lits conferred, whether monetary or otherwise.

Robert L. Graham SUBSCRIBED AND SWO to before Ine this L day of June, 1982.

dCtl'dif_AL)'ld..

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Notary Public J

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UNITED STATES OF AliERICA NUCLEAR REGULATORY COMMISSION BEFORE ThE ATOMIC SAFETY AND LICENSING BOARD 4

In the Matter of

)

NORTHERN INDIANA PUBLIC SERVICE

)

Docket No. 50-367 COMPANY

)

(Bailly Generating Station,

)

Nuclear-1)

)

MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR AWARD OF I'EES AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT BUSINESS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST, INC. ("BPI"), by its attorneys, submits this Memorandum of Law to aid the Board in.its determination of BPI's Application for an awcrd of fees and expenses under the Equal Access to Justice Act, P. L. 96-4c.1, amending 5 USC 5 501 e t s ea. (EAJA).

I.

INTRODUCTION The EAJA became effective on October 1, 1981, and provides for awards of attorneys' fees against the federal government, including federal agencies, in circumstances such as those present here.

Exposure to liability for fees is gre.ater than that of private litigants, "because of the greater ree:.urces and expertise of the United States."

EAJA 5201 ' codified at 5 USC 5504 note.)

Section 203 of the EAJA amends the Administrative Procedure Act, 5 USC 55501 et sec., to provide in part:

9eessess35:3Be604 PDR ADOCK 0S000367 0

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2-3' "5504.

Costs and ~ fees of parties (a) (1)

An agency that conducts an adversary i

adjudication shall award, to a prevailing party i

other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the _ agency finds that the position of the agency as a party to the proceeding was substantially justified or that special circum-t stances make an award unj ust."

4 i

II.

FACTUAL BACKGROUND t

For the Board's reference, a brief summary is set forth of each of the two proceedings for which an award is sought.

A.

Construction Permit Extension Proceeding Under 5185'of the Atomic Energy Act (42 USC $2235) a con-struction permit must contain a latest completion date for the facility.

That section provides further that:

"Unless the construction or modification of the facility is completed by the completion date, the construction permit shall expire, and all rights thereunder be forfeited, unless upon good cause shown, the Commission extends the completion date.

NIPSCO's construction permit was issued on May 1, 1974, and l

set September 1, 1979 as the latest completion date for the Bailly plant.

On February 7,1979, NIPSCO applied for an amendment to i

its construction permit to extend the latest completion date, i

i

See letter from E.M. Shorb to harold 'R. Denton, dated February 7, 1979, requesting an amendment. stating a new latest completion.

L

'date of September 1, 1985.

By letters dated August 31, 1979 and November 26, 1980, NIPSCO subsequently changed'its. request to state ' new -lates t dates. of December 1, l987 and December 1, 1989,

~-

respectively.

L.

L

and on February 27, 1979, BPI, as one of the parties comprising PCCI and on their behalf, filed a request for a hearing on that application.

f In November, 1979, the NRC published a Notice of Opportunity for Hearing on Construction Permit Extension, 44 Fed. Reg. 69061 (November 30, 1979).

In response to the notice, BPI filed a petition for leave to intervene, asserting that the amendment sought by NIPSCO should not be granted.

The Licensing Board, on August 8, 1980, issued its Order following Special Prehearing Conference, allowing PCCI to intervene and partially delineating the scope of i

the proceeding.

There followed extensive and intensive litigation j

activity, including voluminous and contested discovery.

After repeated requests by BPI,

in July.1981 the NRC staff finally articulated its position that the permit extension sought by NIPSCO should be granted and that no new or supplemental Environmental l

Impact Statenent was required by the National Environmental Policy I

Act, 42 USC $4321, et seq.

B.

Short Pilings Proceeding i

In November 1978, BPI on behalf of PCCI filed a petition with 4

the NRC asserting that, NIPSCO was attempting to. change plans for the foundation of the plant from pilings extending to bedrock (as described in the PSAR) to substantially shorter pilings.

BPI

.t

E.g., Joint Supplement.to Requests for Hearing (June 29, 1979):

Transcript of Prehearing Conference at pp. 282-305 (March 13, 1980);

. Porter County Chapter Intervenors' Hocion Concerning Environmental Impact Statement (Augus t 25, 1980); PCCI's Motion to Suspend Litigation Proceedings (November 13, 1980).

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contended that the change constituted in face.and in law a request for a construction permit amendment, and that under the terms of 5189 of the Atomic Energy Act, 42 USC 52239, a hearing was re-quired.

In December 1979, the Commission denied the request for a hearing.

PCCI filed a petition for judicial review with the United States Court of Appeals for the District of Columbia Circuit.

That court reversed the Commission and remanded the cause to the NRC for a hearing.

State of Illinois, et al. v. NRC, No. 81-1131 (D.C. Cir. July 1, 1981).

Af ter receipt of the mandate, the Com-mission sent to the Federal Register an " Amended Notice of Oppor-tunity for Hearings (Pilings)," 46 Fed. Reg. 43326 (August 27, 1981),

dated August 21, 1981, stating that the pilings issue would be heard.in the ongoing construction permit extension proceeding.

On that same date the Commission issued an order forbidding NIPSCO from installing pilings until completion of the pilings proceeding.

Because of NIPSCO's cancellation of the plant on August 26, 1982, no petitions for hearing were filed.

Throughout the proceedings, the NRC staff before the Commission, and the Commission before 4

the Court, took the position that no hearing was required, posi-tions which were not substantially justified.

It is evident that NIPSCO and the staff began discussions of-altering the foundation plans shortly after the construction permit was issued.

From the very first indication of that change, BPI has taken= the position that an amendment, together with the con-comitant hearing, were required by the Atomic Energy Act before that change could be effected.

Further, the NRC staff had the short pilings proposal under l

I t

5-7

~

. consideration for an i,nordinately long time.

Plans were formally submitted by NIPSCO.co the staff in March, 1978, but the staff did not release its report on the substance of that plan until three years later, on March 5, 1981.

The staff concluded that the proposal was acceptable.

Neither the failure to issue its evalua-tion until three years af ter submittal nor the acceptability of the plan were'substantially justified.

C.

Termination of Proceedings On August 26, 1981, NIPSCO announced cancellatio.n of the Bailly plant and on that same date filed a motion to terminate all related proceedings.

The Board finally granted the motion on May 7, 1982, terminating both the construction permit extension and short pilings proceedings.

NIPSCO was ordered to implement the site restoration plan produced tur negotiation and agreement among PCCI, NIPSCO and the NRC staff.

The termination order also requires reporting tnr NIPSCO and the staff, and inspections of the

~

site by NIPSCO, the staff, and representatives of BPI and the other invervenors.

B III.

REQUIREMENTS OF THE EAJA Al The proceedings were pending on the effective date of the act.

The EAJA took effect on October 1, 1981 and, pursuant to Section 208, is to

. apply to any adversary adjudication, as

- defined in section 504(b)(1)(C) of title 5,.

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! UnitedStatesCo'de)*.)hndanycivilactionaar:

adversary adjudi. cation ' describe 03n sectiont 2412' i

of title 28, United $tates C 3de,.which is pend '..'.

ing on, or commeiice'd'on",pr dfrer,# sucW day." ' '

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Even though NIPSCO had..'.ff, led its Moti n *.o hrpinate Proceedings

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,a 3 before that date, both the cons tructio,n p'ers:ic exter.ision Vroh k

X ' f

.. q ceeding and the shorYpilings proceeding were "pending" on (:he n

5 s

effective date and there'hy comp within the terms of the Act'.

[., '

i 5 Under an analogousJstatute, the Civil Rights Attorneys Fees s

i Act, (42 USC 51986)[,; ari' action is. considered "pending" if, on the effective date bf(the Act, theretwas no final judgment pur-i porting to dispose oE.311-issues, and chere was " active contro-s i-

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].

versy."

Once these cp.ditions are satisfied, that Act applies 1

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to the entire casei including to services rendered prior to;that s

p

.r date.

Northeross v. BoaNd 'of Educ., 611 F.2d 624., 634-35"(6th '

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Cir. 19 79), cert. denied,' 447,U.S. 911 (1980).

ML20092N454

Text

Subject:

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