ML19296C670

Notifies That Answers to Util 800118 Motion for Establishment of Schedule for Prehearing Conference Have Been Received.Answers Challenge Legality of Motion.Requests Permission to File Brief Reply.Certificate of Svc Encl

ML19296C670
Person / Time
Site:	Bailly
Issue date:	02/08/1980
From:	Shea K LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Bright G, Cole R, Grossman H Atomic Safety and Licensing Board Panel
References
NUDOCS 8002270422
Download: ML19296C670 (5)

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LAW Or riC E S LOWENSTEIN. N EWM AN, R EIs, AX ELR A D & TOLL

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f Herbert Grossman, Esq. d' U.S. Nuclear Regulatory '\' C Commission -3 : gg \ 4 Washington, DC 20555 Mr. Glenn O. Bright U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Richard F. Cole U.S. Nuclear Regulatory Commission Washington, DC 20555 Gentlemen:

NIPSCO's Motion for Establishment of Schedule for Prehearing Conference (filed January 18) requested that the Licensing Board establish dates for a prehearing conference, the filing of supplements to petitions.to intervene (in-cluding petitioners' contentions and the' bases therefor),

and the filing of responses to those contentions. We did not consider this motion to be particularly controversial and, consequently, it was deemed inappropriate to burden the Board with a lengthy discussion of the Board's power to establish such a schedule, an action which we assumed (erroneously) would not be disputed.

We ha.e received several answers to our Motion for Establishment of Schedule for Prehearing Conference. The answers filed by the State of Illinois and the Porter County Petitioners are, frankly, surprising in that they challenge the appropriateness and the legality of holding a prehearing conference and requiring the filing of conten-tions by those who seek leave to intervene. We had assumed that, in general, a licensing board's authority to take such

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8 LOW E N NT E I N, N Ew M A N, H r:s s. A X E LH A D bC Tott.

Herbert Grossman, Esq.

Mr. Glenn O. Bright Mr. Richard F. Cole Page Two February 8, 1980 actions -- indeed, its obligation to do so -- was unquestion-able under NRC regulations. More particularly, we had assumed that this Board's authority and obligation to do so under the Notice of Opportunity for Hearing (44 Fed. Reg. 69061 (19*))) were unquestionable.

Obviously, we were mistaken, for Illinois and Porter County Petitioners oppose our motion, arguing that the Board should (Porter County) or can (Illinois) not schedule a conference or require contentions until after it has determined that a hearing must be held.

We believe that the positions advocated by Illinois and Porter County Petitioners are novel and incorrect and we should like to assist the Board by addressing the arguments advanced in the answers of Illinois and Porter County Peti-tioners in a reply. This would provide the Board with statements of legal position on both sides of the issue before it rules on the motion.

NRC regulations do not provide for reply pleadings except as permitted by the Board (10 C.F.R. S 2.730(c)); we therefore respectfully request the Board's permission to file a brief reply. We are prepared to deliver it to the Board within hours after receiving telephonic notice of authorization to do so.

Respectfully submitted, LOWENSTEIN,'NEWMAN, RE15, AXELRAD & TOLL Counsel for Northern Indiana Public Service Company By: f[4( b Kadhleen H. Shea

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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 ) Docket No. 50-367 SERVICE COMPANY )

) (Construction Permit Bailly Generating Station, ) Extension)

Nuclear 1 )

CERTIFICATE OF SERVICE I hereby certify that copies of a letter from Kathlean H. Shea to the members of the Atomic Safety and Licensing Board dated February 8, 1980, was served on the following by deposit in the United States mail, postage prepaid, or by hand delivery this 8th day of February, 1980.

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

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William J. Scott, Esquire Dean Hansell, Esquire Assistant Attorney General 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 Ami-ica 3703 Euclid Avenue East Chicago, Indiana 46312 Diane B. Cohn, Esquire William B. Schultz, Esquire Suite 700 2000 P Street, N.W.

Washington, D.C. 20036 Richard L. Robbins, Esquire 53 West Jackson Boulevard Chicago, Illinois 60604 Mr. George Grabowski Ms. Anna Grabowski 7413 W. 136th Lane Cedar Lake, Indiana 46303 Stephen Laudig, Esquire 445 N. Pennsylvania Street Suite 815-816 Indianapolis, Indiana 46204

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Dr. George Schultz 110 California Michigan City, Indiana 46360 1

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0&4 k Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, 11. W .

Washington, D.C. 20036