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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20126M8141985-05-23023 May 1985 Order Denying Business & Prof People for Public Interest Application for Atty Fees Under Equal Access to Justice Act. Commission FY82 Appropriation Act Prohibited Funding of Intervenors.Served on 850523 ML20058J0861982-08-0606 August 1982 Order Holding Intervenor Business & Prof People for Public Interest Request for Award of Atty Fees & Expenses Under Equal Access to Justice Act Until Question of Availability of Funds Solved.Nrc Will Seek Comptroller General Opinion ML20054J0811982-06-18018 June 1982 Notice of ASLB Reconstitution.H Grossman,Chairman & K Mccollom & Rl Holton,Members ML20054F9471982-06-0707 June 1982 Memorandum Supporting Business & Prof People for Public Interest Application for Award of Atty Fees & Expenses ML20053E6801982-06-0404 June 1982 Application for Award of Fees & Expenses Under Equal Access to Justice Act.Fees Requested for Svcs Re Proceedings on Proposed Amend to CP to Extend Completion Date & Proposed Amend to Allow Foundation of Short Pilings ML20053E6821982-06-0404 June 1982 Affidavit of Rj Vollen Re Costs & Legal Svcs Provided ML20053E6831982-06-0404 June 1982 Affidavit of Jm Vollen Re Costs & Legal Svcs Provided ML20053E6851982-06-0404 June 1982 Memorandum of Law Supporting Application for Award of Fees & Expenses Under Equal Access to Justice Act.Proceedings Pending on Effective Date of Act,Party Prevailed & Amount of Fees & Expenses Compensable.Certificate of Svc Encl ML20053E6841982-06-0303 June 1982 Affidavit of Rl Graham Re Reasonable & Customary Charges of Attys ML20052C7281982-04-29029 April 1982 Answer Objecting to & Proposing Mods to ASLB 820412 Memorandum & Order.Objects to Proposed Order Calling for Immediate Termination of Proceedings.No Assurance Util Will Comply If Proceedings Terminated.W/Certificate of Svc ML20050A5201982-03-29029 March 1982 Response Opposing Porter County Chapter Intervenors 820323 Pleading.No Legal Authority Shown for Intervenor Attempt to Exercise NRC Responsibility for Monitoring Compliance W/Aslb Orders.Certificate of Svc Encl ML20049K0791982-03-23023 March 1982 Motion for Leave to Take Limited Discovery.Suppls Position Re Timing of Termination of Proceeding.Util Refusal to Supply Intervenors W/Info Re Compliance W/Aslb 820129 Order Illustrates Need for Jurisdiction.W/Certificate of Svc ML20049K0821982-03-23023 March 1982 First Interrogatory Re Site Restoration ML20069B8901982-03-0101 March 1982 Response Opposing Util 820210 Motion for Reconsideration of 820129 Order.No Legal Basis Presented for Util Argument That ASLB Exceeded Jurisdiction.Certificate of Svc Encl ML20041A4721982-02-16016 February 1982 Motion for Reconsideration of ASLB 820129 Order Requiring Implementation of Revised Plan.Aslb Course Falls Short of ASLB Responsibility to Issue Timely Rulings,Is Unfair to Util & Exceeds ASLB Authority.Certificate of Svc Encl ML20040C7011982-01-25025 January 1982 Responses Opposing Porter County Chapter Intervenors 820108 Motion for Order Imposing Condition of Withdrawal.Nrc Unauthorized to Require Applicant to Pay Intervenors' Fees & Expenses.Certificate of Svc Encl ML20039G0811982-01-0808 January 1982 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 ML20039C2601981-12-22022 December 1981 Response Opposing Porter County Chapter Intervenors 811209 Motion to Compel Util to Implement Revised Plan for Restoration.Util Will Act When Termination Order Issued, Weather Permitting.Certificate of Svc Encl ML20062L9641981-12-0909 December 1981 Motion to Compel Util to Implement Revised Plan for Site Restoration.No Valid Reason Exists for Further Delay. Certificate of Svc Encl ML20011A2391981-10-0101 October 1981 Motion for Order Directing Util to Submit Plans to ASLB Re Site Excavation.Excavation Should Be Filled W/Matl Comparable to Removed Matl to Preclude Possibility of Harm to Natl Lakeshore.Certificate of Svc Encl ML20010G5041981-09-10010 September 1981 Response Supporting Util 810826 Motion to Terminate Proceeding.Termination Should Be W/Prejudice to Assure Finality of Util Decision & That Issues Raised Need Not Be Litigated ML20010E0331981-08-25025 August 1981 Response in Opposition to Porter County Chapter Intervenors 810817 Motion to Extend Time for Reply to Util Fourth Set of Interrogatories.Also Submits Motion to Compel Response. Related Correspondence ML20010E0321981-08-25025 August 1981 Motion to Compel Appearance of Ew Osann & Read for Deposition Re Facts Upon Which State of Il Has Based Contentions.Porter County & State of Il Are Attempting to Delay Completion of Proceeding.Related Correspondence ML20010E0171981-08-25025 August 1981 Renewed Motion for Protective Order Providing Hiple & Kulawinski Not Be Required to Appear for Depositions on 810915 & 22,respectively.Refusal to Reschedule Unwarranted. W/Ltrs & Certificate of Svc.Related Correspondence ML20010E0341981-08-25025 August 1981 Response in Opposition to State of Il 810820 Motion for Extension of Time to Respond to Util Fourth Set of Interrogatories.Requests That Order Be Issued to Compel Response.Related Correspondence ML20010D2381981-08-18018 August 1981 Response in Opposition to State of Il 810813 Motion to File Application for Discovery & Interrogatories Instanter & for Protective Order. General Allegations Insufficient to Extend Deadline.Certificate of Svc Encl.Related Correspondence ML20010D2291981-08-18018 August 1981 Motion to Compel Answers to 810622 Third Set of Interrogatories Directed to Porter County Chapter,Concerned Citizens Against Bailly Nuclear Site,Businessmen for Public Interest,Et Al.Related Correspondence ML20010D1201981-08-18018 August 1981 Response to Porter County Chapter Intervenors' Third Set of Interrogatories.Related Correspondence ML20010D1191981-08-18018 August 1981 Objections to Porter County Chapter Intervenors' Third Set of Interrogatories 9,10,11 & 42.Requests Protective Order Providing That No Further Response to Interrogatory 42 Is Required.Related Correspondence ML20010D1181981-08-18018 August 1981 Response to People of State of Il Second Set of Interrogatories.Related Correspondence ML20010D2441981-08-18018 August 1981 Objection to State of Il Second Set of Interrogatories, Interrogatories 12(c),13(b) & 13 (C).Matters Already Reviewed in Original CP Proceeding & Irrelevent to Instant Proceeding.Related Correspondence ML20010D2341981-08-18018 August 1981 Request for Motion to Compel Response to 810622 Third Set of Interrogatories Directed to State of Il.Answers Were Nonresponsive.Related Correspondence ML20010C8961981-08-17017 August 1981 Motion for Extension of Time Until 810910 to File Answers or Objections to Util 810730 Fourth Set of Interrogatories. More Time Needed for Adequate Preparation.No Party Will Be Prejudiced by Extension.Certificate of Svc Encl ML20010C8231981-08-17017 August 1981 Response Opposing Porter County Chapter Intervenors' 810810 Motion for Extension of Time to Take Depositions.Intervenors Had Ample Opportunity for Discovery.Board Should Not Allow Delaying Tactics ML20010C8251981-08-17017 August 1981 Response Opposing State of Il 810811 Motion for Extension of Time to Take Depositions.Hardships Under Discovery Schedule Are self-imposed ML20010C5031981-08-14014 August 1981 Second Application for Order Requiring Attendance & Testimony at State of Il Noticed Depositions of Lm Bykoski & Lg Hulman.Exceptional Circumstances Exist & Listed Personnel Should Be Required to Appear ML20010C5881981-08-13013 August 1981 Motion for Leave to File Application for Discovery Re NRC Documents,First Set of Interrogatories Directed to NRC & Third Set of Interrogatories Directed to Util.Discovery Could Not Be Completed by 810811.Related Correspondence ML20010C5911981-08-13013 August 1981 First Set of Interrogatories Directed to NRC ML20010C5181981-08-13013 August 1981 Motion for Protective Order That Ew Osann Deposition Not Be Taken on 810820.Osann Will Be Unavailable for Util Deposition Due to Other Business Commitments.Good Cause exists.W/810813 Ltr to Util Law Firm & Certificate of Svc ML20010C5901981-08-13013 August 1981 Application for Discovery Directed to NRC Re NRC Staff Evaluation of Bailly CP Extension Request. ML20010C5921981-08-13013 August 1981 First Set of Interrogatories Directed to Util.Certificate of Svc Encl ML20010B2941981-08-12012 August 1981 Renewed Application for Subpoenas Directed to Rf Brissette, s Dobrijevic & Personnel at Sargent & Lundy,Ground/Water Technology,Inc & Dames & Moore.Related Correspondence ML20010C3261981-08-11011 August 1981 Third Application to ASLB for Order Requiring Attendance & Testimony at Deposition of Lg Hulman,Lm Bykowski & Wf Lovelace.Exceptional Circumstances Exist.Related Correspondence ML20010C4971981-08-11011 August 1981 First Request for Production of Documents Directed to Util ML20010C4921981-08-11011 August 1981 First Request for Production of Documents Directed to NRC ML20010C5001981-08-11011 August 1981 Notice of Lm Bykoski & Lg Hulman 810824 & 26 Depositions, Respectively,Re Theoretical & Empirical Basis of NRC 810717 Eia & Documents,Info & Personnel Used in Preparing Eia ML20010C5071981-08-11011 August 1981 Amended 810720 Notice of MD Lynch Deposition,Including Listed Matters for Exam ML20010C2391981-08-11011 August 1981 Fifth Set of Interrogatories Directed to Util.Related Correspondence ML20010C5111981-08-11011 August 1981 Motion for Extension of Time for Taking Depositions.Supports Porter County Chapter Intervenors' 810810 Motion for Extension of Deadline Until 810803.Schedule Places Burden on Parties W/O Benifit to Anyone.Certificate of Svc Encl ML20010C2821981-08-11011 August 1981 Conditional Withdrawal of Motions for Protective Orders Re Hiple & Kulawinski Depositions.If Depositions Rescheduled for Suggested Dates,Util Will Withdraw Objections. Certificate of Svc Encl 1985-05-23
[Table view] Category:PLEADINGS
MONTHYEARML20053E6851982-06-0404 June 1982 Memorandum of Law Supporting Application for Award of Fees & Expenses Under Equal Access to Justice Act.Proceedings Pending on Effective Date of Act,Party Prevailed & Amount of Fees & Expenses Compensable.Certificate of Svc Encl ML20053E6801982-06-0404 June 1982 Application for Award of Fees & Expenses Under Equal Access to Justice Act.Fees Requested for Svcs Re Proceedings on Proposed Amend to CP to Extend Completion Date & Proposed Amend to Allow Foundation of Short Pilings ML20052C7281982-04-29029 April 1982 Answer Objecting to & Proposing Mods to ASLB 820412 Memorandum & Order.Objects to Proposed Order Calling for Immediate Termination of Proceedings.No Assurance Util Will Comply If Proceedings Terminated.W/Certificate of Svc ML20050A5201982-03-29029 March 1982 Response Opposing Porter County Chapter Intervenors 820323 Pleading.No Legal Authority Shown for Intervenor Attempt to Exercise NRC Responsibility for Monitoring Compliance W/Aslb Orders.Certificate of Svc Encl ML20049K0791982-03-23023 March 1982 Motion for Leave to Take Limited Discovery.Suppls Position Re Timing of Termination of Proceeding.Util Refusal to Supply Intervenors W/Info Re Compliance W/Aslb 820129 Order Illustrates Need for Jurisdiction.W/Certificate of Svc ML20069B8901982-03-0101 March 1982 Response Opposing Util 820210 Motion for Reconsideration of 820129 Order.No Legal Basis Presented for Util Argument That ASLB Exceeded Jurisdiction.Certificate of Svc Encl ML20041A4721982-02-16016 February 1982 Motion for Reconsideration of ASLB 820129 Order Requiring Implementation of Revised Plan.Aslb Course Falls Short of ASLB Responsibility to Issue Timely Rulings,Is Unfair to Util & Exceeds ASLB Authority.Certificate of Svc Encl ML20040C7011982-01-25025 January 1982 Responses Opposing Porter County Chapter Intervenors 820108 Motion for Order Imposing Condition of Withdrawal.Nrc Unauthorized to Require Applicant to Pay Intervenors' Fees & Expenses.Certificate of Svc Encl ML20039G0811982-01-0808 January 1982 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 ML20039C2601981-12-22022 December 1981 Response Opposing Porter County Chapter Intervenors 811209 Motion to Compel Util to Implement Revised Plan for Restoration.Util Will Act When Termination Order Issued, Weather Permitting.Certificate of Svc Encl ML20062L9641981-12-0909 December 1981 Motion to Compel Util to Implement Revised Plan for Site Restoration.No Valid Reason Exists for Further Delay. Certificate of Svc Encl ML20011A2391981-10-0101 October 1981 Motion for Order Directing Util to Submit Plans to ASLB Re Site Excavation.Excavation Should Be Filled W/Matl Comparable to Removed Matl to Preclude Possibility of Harm to Natl Lakeshore.Certificate of Svc Encl ML20010G5041981-09-10010 September 1981 Response Supporting Util 810826 Motion to Terminate Proceeding.Termination Should Be W/Prejudice to Assure Finality of Util Decision & That Issues Raised Need Not Be Litigated ML20010E0331981-08-25025 August 1981 Response in Opposition to Porter County Chapter Intervenors 810817 Motion to Extend Time for Reply to Util Fourth Set of Interrogatories.Also Submits Motion to Compel Response. Related Correspondence ML20010E0341981-08-25025 August 1981 Response in Opposition to State of Il 810820 Motion for Extension of Time to Respond to Util Fourth Set of Interrogatories.Requests That Order Be Issued to Compel Response.Related Correspondence ML20010E0171981-08-25025 August 1981 Renewed Motion for Protective Order Providing Hiple & Kulawinski Not Be Required to Appear for Depositions on 810915 & 22,respectively.Refusal to Reschedule Unwarranted. W/Ltrs & Certificate of Svc.Related Correspondence ML20010E0321981-08-25025 August 1981 Motion to Compel Appearance of Ew Osann & Read for Deposition Re Facts Upon Which State of Il Has Based Contentions.Porter County & State of Il Are Attempting to Delay Completion of Proceeding.Related Correspondence ML20010D2381981-08-18018 August 1981 Response in Opposition to State of Il 810813 Motion to File Application for Discovery & Interrogatories Instanter & for Protective Order. General Allegations Insufficient to Extend Deadline.Certificate of Svc Encl.Related Correspondence ML20010D2291981-08-18018 August 1981 Motion to Compel Answers to 810622 Third Set of Interrogatories Directed to Porter County Chapter,Concerned Citizens Against Bailly Nuclear Site,Businessmen for Public Interest,Et Al.Related Correspondence ML20010D2341981-08-18018 August 1981 Request for Motion to Compel Response to 810622 Third Set of Interrogatories Directed to State of Il.Answers Were Nonresponsive.Related Correspondence ML20010C8961981-08-17017 August 1981 Motion for Extension of Time Until 810910 to File Answers or Objections to Util 810730 Fourth Set of Interrogatories. More Time Needed for Adequate Preparation.No Party Will Be Prejudiced by Extension.Certificate of Svc Encl ML20010C8231981-08-17017 August 1981 Response Opposing Porter County Chapter Intervenors' 810810 Motion for Extension of Time to Take Depositions.Intervenors Had Ample Opportunity for Discovery.Board Should Not Allow Delaying Tactics ML20010C8251981-08-17017 August 1981 Response Opposing State of Il 810811 Motion for Extension of Time to Take Depositions.Hardships Under Discovery Schedule Are self-imposed ML20010C5031981-08-14014 August 1981 Second Application for Order Requiring Attendance & Testimony at State of Il Noticed Depositions of Lm Bykoski & Lg Hulman.Exceptional Circumstances Exist & Listed Personnel Should Be Required to Appear ML20010C5881981-08-13013 August 1981 Motion for Leave to File Application for Discovery Re NRC Documents,First Set of Interrogatories Directed to NRC & Third Set of Interrogatories Directed to Util.Discovery Could Not Be Completed by 810811.Related Correspondence ML20010C5181981-08-13013 August 1981 Motion for Protective Order That Ew Osann Deposition Not Be Taken on 810820.Osann Will Be Unavailable for Util Deposition Due to Other Business Commitments.Good Cause exists.W/810813 Ltr to Util Law Firm & Certificate of Svc ML20010C5111981-08-11011 August 1981 Motion for Extension of Time for Taking Depositions.Supports Porter County Chapter Intervenors' 810810 Motion for Extension of Deadline Until 810803.Schedule Places Burden on Parties W/O Benifit to Anyone.Certificate of Svc Encl ML20010C2821981-08-11011 August 1981 Conditional Withdrawal of Motions for Protective Orders Re Hiple & Kulawinski Depositions.If Depositions Rescheduled for Suggested Dates,Util Will Withdraw Objections. Certificate of Svc Encl ML20010C1591981-08-11011 August 1981 Third Application for Order Requiring NRC to Answer Porter County Chapter Intervenor'S Third Set of Interrogatories. Related Correspondence ML20010C3261981-08-11011 August 1981 Third Application to ASLB for Order Requiring Attendance & Testimony at Deposition of Lg Hulman,Lm Bykowski & Wf Lovelace.Exceptional Circumstances Exist.Related Correspondence ML20010B3941981-08-10010 August 1981 Response in Opposition to State of Il Refusal to Produce Designated Agent for Deposition.Util Does Not Object to Rescheduling of Deposition.Certificate of Svc Encl.Related Correspondence ML20010B2961981-08-10010 August 1981 Motion to Compel NRC Answers to Porter County Chapter Intervenors' First Set of Interrogatories.Nrc Answers Re Interrogatories 8(f)(ii)(iii) & 9(d) & (F) Were Deficient. Related Correspondence ML20010B2951981-08-10010 August 1981 Second Motion to Compel Further NRC Response & Production of Documents Per Porter County Chapter Intervenors' Second Request.Nrc Should Be Ordered to Provide Definitive Response.Related Correspondence ML20010B2901981-08-10010 August 1981 Showing of General Relevance Supporting Subpoena Applications.Persons to Be Deposed Have Knowledge Directly & Immediately Relevant to Proceeding Issues.Related Correspondence ML20010B2921981-08-10010 August 1981 Motion to Extend 810930 Deadline for Taking Depositions. Compliance May Not Be Possible.Schedule Imposes Unreasonable Burden on All Parties.Related Correspondence ML20010B1321981-08-0707 August 1981 Response Opposing Porter County Chapter Intervenors' 810731 Motion for Leave to Initiate Further Discovery.No Good Cause Shown.Certificate of Svc Encl.Related Correspondence ML20010B2871981-08-0606 August 1981 Motion for Protective Order Providing That Util Requested Deposition Not Be Taken as Scheduled.Job Responsibilities Prevent H Read 810812 Deposition ML20010B3021981-08-0505 August 1981 Response in Opposition to Util 810721 Motion to Compel Answers to Second Set of Interrogatories.Motion Is Filled W/Vituperative Rhetoric,Snide Comments & Personal Attacks on Intervenors.Certificate of Svc Encl ML20009H4681981-07-31031 July 1981 Second Request for Order Requiring NRC to Answer Porter County Chapter Intervenors Second Set of Interrogatories. Answers Relate to Matters Solely within NRC Knowledge. Certificate of Svc Encl.Related Correspondence ML20009H4951981-07-31031 July 1981 Motion for Leave to Initiate Further Discovery to Follow Up on Interrogatories & Various Documents.Related Correspondence ML20009G9841981-07-30030 July 1981 Response Opposing State of Il 810713 Motion for Extension of Time.State of Il Excuses Are Insufficient & Should Not Be Allowed to Dictate Pace of Proceeding.Certificate of Svc Encl.Related Correspondence ML20009G8241981-07-27027 July 1981 Response Opposing State of Il 810713 Motion for Extension of Time.Counsel Needs to Consult W/Other Personnel to Answer Interrogatories Is Usual & Does Not Justify Delayed Responses ML20009G8301981-07-27027 July 1981 Renewed Motion for Protective Order Re Purcell Deposition & Withdrawal of Motion for Protective Order Re Dunn & Ricca Depositions.No Justification Offered for Late Deposition ML20009F2161981-07-24024 July 1981 Answer to State of Il 810717 Motion for Clarification of Order & Porter County Chapter Intervenors' 810722 Motion for Clarification or Reconsideration of Order.Aslb 810710 Order Is Not Ambiguous.No Clarification Needed ML20009F2181981-07-24024 July 1981 Renewed Motion for Protective Order Providing That Petersen,Hiple & Kulawinski Depositions May Not Be Taken on Dates Specified.No Justification Offered.Aslb Established Final Date for Depositions.Certificate of Svc Encl ML20009G8201981-07-23023 July 1981 Response Opposing Util 810708 Motion for Protective Order That Ah Petersen,Fg Hiple & Kulawinski Depositions Not Be Taken After 810731.Util Motion Seeking 810731 as Date Closing Discovery Was Denied.Certificate of Svc Encl ML20009E3051981-07-23023 July 1981 Response Opposing Porter County Chapter Intervenors' 810710 Motion for Extension of Time to File Answers or Objections to Third Set of Interrogatories.Motion Is Attempt to Delay Completion of Discovery.W/Certificate of Svc ML20009E6521981-07-22022 July 1981 Motion for Clarification or Reconsideration of 810710 Orders.Svc of Subpoenas & Notices of Deposition & Taking of Depositions Cannot Reasonably Be Accomplished by Ordered 810828 Date.Certificate of Svc Encl ML20009E0921981-07-21021 July 1981 Motion to Compel Answers to 810423 Second Sets of Interrogatories Directed to Porter County Chapter Intervenors,Concerned Citizens Against Bailly Nuclear Site & Others.Certificate of Svc Encl ML20009E2131981-07-20020 July 1981 Statement Adopting in Entirety Porter County Chapter Intervenors 810609 Application for Order Requiring O Thompson Attendance & Testimony at Deposition 1982-06-04
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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M I 3199f & '~
efreeaf thetamany 'll BEFORE THE ATOMIC SAFETY AND LICENSING B0
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tuumens.d s amelee
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In the matter of )
) Docket No. 50-367 NORTHERN INDIANA PUBLIC ) (Construction Permit SERVICE COMPANY ) Extension)
(Bailly Generating Station, )
Nuclear-1) )
PORTER COUNTY CHAPTER INTERVENORS'
- r. (1) OBJECTIONS TO MEMORANDUM AND
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ORDER OF DECEMBER 24, 1980, AND MOTION FOR RECONSIDERATION, AND (2) MOTION
._ N R CERTIFICATION OR REFERRAL
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Porter County Chapter of the Izaak Walton League of
/5 erica, Inc., Concerned Citizens Against Bailly Nuclear Site, Businessmen for the Public Interest, Inc., James E.
Newman and Mildred Warner (" Porter County Chapter Intervenors"),
by their attorneys, hereby (1) object to the Board's Memorandum and Order dated December 24, 1980 (" Order"), pursuant to 10 CFR 52751a(d)*, and move the Board to reconsider and reverse the rulings in the Order; and (2) in the alternative, move the Board to certify to the Atomic Safety and Licensing Appeal Board, pursuant to 10 CFR 52.751a(d), or to refer to the Appeal Board, pursuant to 10. CFR 52. 730(f) , the issues and the rulings on the l admissibility of Porter County Chapter Intervenors' " newly filed" l
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and short pilings contentions.
- .The Order addresses matters left undecided by the Order following Special Prehearing Conference, dated August 7, 1980. 3 5
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- 1. Obiections and motion for reconsideration
- a. The Board applied an improper standard.
Porter County Chapter Intervenors respectfully
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! submit that the Board has misconstrued the recent Appeal Board f decision in Northern Indiana Public Service Ccmpany (Bailly l Generating Station, Nuclear-1) , ALAB-619,12 NRC (November 20, 1980) ("Bailly"). This Board concluded from the Bailly decision that in order for a contention to be admitted in any good cause for extension proceeding it must meet both of two separate tests. This Board said that the Appeal Board in
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Bailly:
read into the Cook decision a determination (Op. 17) that had previously escaped this Board, that an intervenor in an extension proceeding could "only" litigate issues that (1) arose from the reasons assigned to the requested extension and (2)could not abide the operating license proceeding.
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(Order, p.3.)
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To be sure, the Appeal Board in Bailly did describe its decision in Cook in almost those terms .* However, it did so only, and explicitly, in describing the rationale for the decision in Cook, not in articulating the legal standard for admissibility of contententions in all construction permit extension proceedings.
I This Board apparently overlooked the fact that the test i
upon which it relies was explicitly limited by the Appeal Board to the facts of the Cook case. The Appeal Board said the Cook test that contentions be " rooted in the reasons assigned for
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- A very important difference in terms is that the Order here refers to "an" intervenor, but the page of the Bailly decision cited refers to "the" intervenors, referring specifically to those in Cook.
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O
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the delay.in completing construction" was " tailored to the particular facts of that case." (Bailly, p. 22, emphasis suppli'ed.)
It further explained that:
Neither in terms nor by necessary implication was it (that test] offered as an inflexible mold for passing judgment on the litigability in a permit extension proceeding of every variety of contention in every conceivable setting. Indeed, that it was not intended to have any such effect is indicated by the importance we attached to looking at the
" totality of the circumstances" and invoking a
" common sense" approach in determining the scope of the " good cause" inquiry in the specific case.
See 6 AEC at 620. (Id. at 22-23.)
Thus, contrary to this Board's understanding,the Appeal Board did not erect an inflexible and mechanistic two-part test for the admissibility of contentions which automatically excludes issues unrelated to the reasons assigned for the extension.*
Rather, the Appeal Board reiterated the importance of a " common sense" approach which considers the " totality of the circumstances" in determining the contentions to be admitted. (Id.)
There is no doubt that a common sense approach to the totality of the circumstances surrounding Bailly compels the conclusion that both the newly filed and short pilings contentions are appropriate for consideration in this proceeding. The Bailly plant remains less than 1% completed "in the very incipient st' ages of construction" (Bailly, p.3) - and each of these contentions presents a matter of great significance which was not and could
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- As this Board undoubtedly will recall, its August 7,1980 Order "at least intimated (order, pp. 24-29) a view that in appropriate circumstances it might consider issues unrelated to the reasons given for its construction delay." (Bailly, pp . 6- 7. ) There is absolutely nothing in the Appeal Board Bailly decision to indicate disagreement with that view.
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not have been considered in the construction permit hearing.
Because this Board's Order established and applied an erroneous legal standard based upon a misunderstanding of the Appeal Board's Bailly decision, Porter County Chapter Intervenors object to the Order and urge the Board to reconsider its rulings.
Upon reconsideration, and by application of the appropriate standard, the newly-filed and short pilings contentions should be admitted.
- b. Even applying the improper standard, the short pilings contentions should be admitted.
Assuming, arguendo, that the Board continues to adhere to the two-part test set forth in the Order, Porter County Chapter Intervenors nonetheless maintain that reconsideration is appropriate and that the Board should reverse itself on the ruling denying the Intervenors' short pilings contentions.* It is clear that the Board concluded that the short pilings contentions i meet the first part of the test - that they arise from the reasons assigned for the requested extension (Order, p. 5). Although it is less clear, it appears that the Board concluded that these contentions did not meet the second part of the test - whether the short pilings contentions can appropriately abide the operating l
l licens e proceeding - because:
we have no basis for finding that the absence of a board's' approval of that specific testing program constitutes a compelling reason for determing that a hearing should be held now, rather than at .
the operating license stage. (Order, p . 7.)
- The Order denied the newly filed contentions solely on the ground that they do not satisfy the first part of the test
- relatedness. (Order, p. 4.) For that reason, we do not address the need for clarification of the statements in the Order concerning the app:.ication of the second part of the test to those contentions (Order, pp. 2-3) .
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That conclusion is largely a decision on the merits of the contentions and is based upon a series of misconceptions and erroneous legal premises and conclusions.
1 It appears that the Board has required that for a contention to satisfy the second part of the test - that the
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matter cannot abide the operating license proceeding - an intervenor has the burden of making a prima facie evidentiary showing, without discovery, to that effect. (Order, pp. 2-3; 5-7.) The Order cites no authority for that proposition, and we know of none. To the contrary, in ruling on admissibility,
! this Board must accept the assertions of the contention, including the assertions that the short pilings issue should be heard now, as true. (Bailly p. 21; Houston Lighting and Power Co. (Allens
- Creek Nuclear Generating Station, Unit 1),ALAB - 590, 11 NRC 542 (1980); Missippi Power and Ligbt Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973) .) When viewed in that light, the contentions certainly meet the standard of
asserting that consideration of the short pilings issues cannot
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abide the operating license stage.
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In another apparent misallocation of burden,
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the Board suggests that intervenors have an obligation to show
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a " substantial reason for a board to deny the design change" (Order. p. 6). There is no possible legal basis for such a suggestion. Moreover, in making it, the Board appears to have lost sight of the fact that this hearing is not about approval or denial of a design change, but is about whether NIPSCO can meet its burden of showing good cause for. the construction permit amendment it seeks.
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The Board also concludes that only a preliminary review of the design could be made at this time, either by a constructi'on ,
permit board or by this Board. We are not aware of the basis, without any hearing having been held, for.that conclusion.
Contrary to the Board's statement (Order, p. 6), Porter County Chapter Intervenors do not admit as much. Our statement l
which the Board quotes must be read in context:
...the finding of " reasonable assurance" made at that time did not deal specifically with the short pilings proposal. Unlike many of the component parts of the proposed Bailly plant, the foundation pilings are not susceptible to the same type of laboratory-like analysis that follows from use in similar nuclear power plants.
Indeed, an evaluation of pilings requires con-sideration of essentially an unknown quantity -
i.e., the subsoil composition. Accordingly, a greater degree of scrutiny to find the requisite assurance of safety is required for the pilings
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foundation than for other more common aspects of the plant. (Porter County Chapter Intervenors '
Responses to the Board's Questions on the Short Pilings Iss ue , filed August 25, 1980, at p. 4.)
To construe this scacement as an admission that no decision
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could be reached now, more than six years after the constuction permit hearings and well after NIPSCO's soil testing and placement of test piles, is an unfair reading of Porter County Chapter Intervenors' submission.
Moreover, even if it were true that only a preliminary review could be made now, that does not change the propriety of a hearing being held on a significant issue which has never
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l l been considered. As the Board points out, in its present stage of development the short pilings issue would be considered in a hearing, if it were at the construction
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-7 permit hearing stage. (Order, p. 5) The fact that NIPSCO chose not to make its proposal until after it received its construction permit does not reduce the meaningfulness of a hearing on the proposal. In fact, we believe that a Board could make a despositive finding, even before implementation, that a foundation design in which the pilings do not go to bedrock does not afford reasonable assurance that a plant which adequately protects the public health and safety can be built.
The fact that tests may be required after installation, if that ever occurs, does not preclude a decision on the design before the installation is undertaken. w Although the Board does not identify from whoae standpoint the requirement of a research and development program would be the "most drastic remedy" conceivable (Order.p. 6), its conclusion
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in that regard again overlooks the ultimate issue in this proceeding.
A determination that, in light of the lack of assurance of safety of the short pilings design (a determination to be made after an evidentiary hearing), good cause does not exist for the extension sought by NIPSCO and therefore that its application for an l
l amendment is denied, would, it can be speculated, be viewed by NIPSCO as more drastic. The point, however, is not how drastic l a remedy can be conceived, but rath;r that the issue here is
" good cause."
- l Finally, the Board has found as a matter of fact cus the merits of Intervenors' short pilings contentions that there l is no " material insufficiency" in the program adopted by NIPSCO
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and the staff for testing the short pilings foundation. (Order,
- p. 7.) This finding is used as the basis for the Board's conclusion that the absence of Board approval of the program is not enough to provide a basis for finding that the issue must be heard now. Only admissibility, not the merits of the contnecion, is before the Board at this juncture. See, Houston Lighting and Power Company (Allens Creek Generating Station, Unit 1) ALAB-590, 11 NRC 542, 551 (1980) . The Board should decide upon the significance of the change in foundation design, the adequacy of the short pilings proposal, the substantiality of the test program and whether NIPSCO can show good cause, after a hearing where all parties have been given a full and fair opportunity to present and cross-examine evidence.
- 2. Motion for Certification or Referral In the alternative, if the Board declines to reconsider and Isverse its rulings on the short pilings and newly filed contentions, Porter County Chapter Intervenors move the Board to exercise its authority under 10 CFR 52.718(i) and certify pursuant to 10 CFR 52.751a(d), or refer pursuant to 10 CFR 52.730(f),
or both certify and refer to the Atomic Safety and Licensing Appeal Board the questions of admissibility of contentions R-I l-9 and 13 (" newly filed contentions") and Intervenors 'short pilings
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contentions.
Under 10 CFR 52. 730(f) , the Board may refer a ruling to the Commision if prompt final resolution is "necessary to
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9 prevent detriment to the public interest or unusual delay or expense." In turn, 10 CFR 52.785(b) delegates to the Appeal Board the authority to hear such a referral issue in place of the Comission. See, Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271,1 NRC 478, 482 (1975) .
The questions of the admissibility of the newly filed and short l
pilings contentions are appropriate matters for referral. Indeed, the nature of the issues and of this proceeding suggest that a i final resolution of their admissibility now will avoid unneccessary and extraordinary delay and expense to all parties to this construction permit amendment proceeding. If the hearing on l NIPSCO's requested amendment is held without these issues being l
) admitted, and the Appeal Board or the Commission subsequently determines that they should have been admitted, discovery will need to be re-opened, and this Board must reconvene the hearing.
j If the short pilings contention is now denied and subsequently admitted, it is possible that additional construction work will have taken place with the inevitable prejudicial effect on the decision-maker. Cf. ,Public Service Company of New Hampshire l (Seabrook Units 1 and 2) CLI-78-14, 7 NRC 952, 959, (1978). The
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avoidance of this delay, effort and expense by referral now to the Appeal Board is certainly in the best interests of all parties and of this Board. Because the proceedings are still in the early stages of discovery, it can be expected that the ppeal Board will resolve the issues well before the hearing date is set.
Certification of issues arising during the special prehearing conference is authorized by 10 CFR $2.751a(d). Appendix A to
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10 CFR Part 2 suggests that certification is appropriate when:
a major or novel question of policy, law or procedure is involved which cannot be resolved except by the Commission or the Appeal Board and when the prompt and final decision of the question is important for the protection of the public interest or to avoid undue delay or serious prejudice to the interests of a party. ($V(f) (4).)
That standard is met here. This is only the second contested construction permit extension proceeding ever held, and the only one concerning a plant in the very preliminary stages of construction. As recognized in the Order (p.5.), there is no definitive statement of what standards govern the admissibility of issues in such a proceeding. In light of the Appeal Board's recent Bailly decision, and, in our view, this Board's misunderstanding of it, consideration of the legal issue by the Appeal
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Board at this time is particularly appropriate.
Accordingly, Porter County Chapter Intervenors move, in the alternative, this Board to certify, or refer, or both t
certify and refer, to the Atomic Safety and Licensing Appeal Board the issues of whether the newly-filed and short pilings contentions are admissible in this proceeding.
Dated: January 9, 1981 Respectfully submitted, Robert J. Vollen Jane M.Whicher
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By: ,
Rbbert J7/Vollen
! Attorneys for Porter County
! Chapter Intervenors Robert J. Vollen Jane M. Whicher c/o BPI 109 North Dearborn
! Chicago , IL 60602 l (312) 641-5570
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11 CERTIFICATE OF SERVICE I hereby certify that copies of Porter County Chapter Intervenors' (1) Objections to Memorandum. and Order of December 24, 1980, and Motion for Reconsideration, and (2) Motion for Certification or Referral were served on each of the persons on the attached Service List by deposit in the U.S. Mail, postage prepaid, on this 9th day of January, 1981.
Robert J. Vollen yl ! -
One of the Attorneys for for Porter County Chapter Intervenors
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Robert J. Vollen l Jane M. Whicher c/o BPI 109 North Dearborn Chicago, IL 60602 (312) 641-5570 .
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SERVICE LIST Herbert Grossman, Esq. George and Anna Grabowski Administrative Judge 7413 W. 136th Lane Atomic Safety and Licensing Cedar Lake, Indiana 46303 Board Panel U.S. Nuclear Regulatory Commission Dr. George Schultz )
Washington, D.C. 20555 807 E. Coolspring Road Michigan City, Indiana 46360 Dr. Richard F. Cole Administrative Judge Richard L. Robbins, Esq.
Atomic Safety and Licensing Lake Michigan Federation Board Panel 53 W. Jackson Blvd.
U.S. Nuclear Regulatory Commission Chicago, IL 60604 Washington, D.C. 20555 Mr. Mike Olszanski Mr. Glenn O. Bright Mr. Clifford Mezo Administrative Judge Local 1010 Atomic Safety and Licensing United Steelworkers of America Board Panel 3703 Euclid Avenue U.S. Nuclear Regulatory Commission East Chicago, Indiana 46312 Washington, D.C. 20555 Steven C. Goldberg, Esq.
Maurice Axelrad, Esq. Office of the Executive Kathleen H. Shea, Csq. Legal Director Lowenstein, Newman, Reis, U.S. Nuclear Regulatory Commission Axelrad and Toll Washington, D.C. 20555 1025 Connecticut Ave., N.W.
Washington, D.C. 20036 Anne Rapkin, Esq.
Assistant Attorney General William H. Eichhorn, Esq. John Van Vranken, Esq.
Eichhorn, Eichhorn & Link Environmental Control Division 5243 Hohman Avenue 188 W. Randolph St. - Suite 2315 Hammond, Indiana 46320 Chicago, IL 60601 Diane B. Cohn, Esq. Docketing and Service Section j William P. Schultz, Esq. Office of the Secretary l Suite 700 U.S. Nuclear Regulatory Commission l 2000 P Street, N.W. Washington, D.C. 20555 Washington, D.C. 20555 Stephen Laudig, Esq.
Atomic Safety and Licensing 21010 Cumberland Road
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Board Panel Noblesville, Indiana 46060 U.S. Nuclear Regulatory Commission t
Washington, D.C. 20555
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Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commis'sion Washington, D.C. 20555 f
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