ML20009E652

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

ML20009E652
Person / Time
Site:	Bailly
Issue date:	07/22/1981
From:	Vollen R IZAAK WALTON LEAGUE OF AMERICA, PORTER COUNTY CHAPTER, VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8107280337
Download: ML20009E652 (6)

Text

' '

' ' 7/22-/f/ -

f -

j 4

UNITED STATES OF AMERICA 2 O NUCLEAR REGULATORY COMMISSION 8- d'#[,2 Q C

c u,

/g8,,f:-[

/ ,

ld BEFORE THE ATOMIC SAFETY AND LICENSING 4 i {%y /'c' BO Lf'b' In the Matter of T(4T7p","w'~ t

) x

)

NORTHERN INDIANA PUBLIC ) Docket No. 50-367 SERVICE COMPANY ) (Construction Permit (Bailly Generating ) Extension)

Station, Nuclear-1) ) *

• PORTER COUNTY CHAPTER INTERVENORS' 3F MOTION FOR CLARIFICATION OR -

RECONSIDERATION OF ORDERS CONCERNING'

~

JQ 20 ISBig Z DISCOVERY DATED JULY 10, 1981 \

D*ma% A6 4

h Porter County Chapter Intervenors ("PCCI"), by 1> ' g i.Np '

attorneys, respectfully submit that both of the orders dated July 10,'1981, one subtitled " Denying PCCIs' Application Pursuant to 10 CFR 52.720(h)(2)(1) and (ii)" (served July 14, 1981) , and the other subtitled " Closing Discovery" (served July 13, 1981),

contain ambiguities which, in the interest of all parties to this proceeding, should be clarified by the Board. Accordingly, PCCI hereby move the Board to clarify both orders in the respects identified below. If PCCI's understandings of the Board's intention in those orders, as reflected below, is incorrect, then we respectfully move the Board to reconsider its rulings and modify its rulings to be consistent with those understandings.

1. Order (Denying PCCIs' Application Pursuant to 10 CFR $2.720(h)(2)(i) and (ii))

" Porter County Chapter Invervenors' Application Pursuant to 10 CFR $2.720(h)(2)(i) and (ii)," dated May 19, 1981, sought an order requiring the Staff to answer " Porter County Chapter Intervenors' First Set of Interrogatories to the NRC Staff," also 8107280337 810722 i I PDR ADOCK 05000367 G PDR

$0 J 4

1 d

• dated May 19, 1981. There are thirteen interrogatories in that first set. The "NRC Staff's Response to PCCI's Application Pursuant .to 10 CFR $2. 720(h)(2)(ii)", dated June 8,1981, urged that the Board deny only that portion of PCCI's application "which asks that the Staff be required to respond to interrogatory 3" (p. 3). The Staff expressed no objection to any of the other int erro gatorie s . Nonetheless, the Order of July 10, 1981 provides that "PCCI's applications are denied."

PCCI respectfully submit that in sustaining the Staff's position with respect to Interrogatory 3, the Board may have inad-vertently failed to order the Staff to answer all interrogatories in PCCI's first set other than Interrogatory 3. Since it appears that such a direction by the Board is required under 10 CFR $2.720 (h)(2)(ii), and since the Staff has indicated that it "will file responses to such interrogatories as the Licensing Board may direct it to answer" (Response of June 8, 1981, a t p . 1), PCCI respectfully urge the Board to clarify the order and direct the Staff to answer all interrogatories other than Interrogatory 3.

In the event that the Board's failure to order the Staff to answer all interrogatories in the first set other than Interro-gatory 3 was not inadvertent, PCCI respectfully move the Board to reconsider its ruling and to direct the Staff to answer Interro-gatories 1, 2 and 4 through 13. The Staff has raised no objection to them, and indeed appears to have conceded that the interrogatories "go to matters solely within the Staff's knowledge" (Response at

p. 2). There is no possible basis for denial of the application

_ e a

with respect to these interrogatories.

2. Order (Closing Discovery)

. a. The order closing discovery provides that "all depositions be scheduled by August 28, 1981." The provision is ambiguous as to whether dates for all depositions should be established by August 28 or whether all depositions must actually be taken by August 23. PCCI respectfully submit that the Board must have intended the former, and move the Board to clarify the order to elininate that ambiguity.

At the time that the order was entered on July 10, 1981, PCCI had already noticed four depositions to be taken subsequent to August 28, 1981. In addition, PCCI, on June 18, 1981, and the State of Illinois, on June 23,'1981, had applied for subpoenas ,

to take as many as nine other depositions of employees of NIPSCO contractors. As of July 10, the Board had not yet either issued the subpoenas or directed the applicants to make a showing of the general relevance of the testimony sought, as a precondition to the issuance of the subpoenas, as NIPSCO had requested.(See letters l

to the members of the Board from William 11. Eichhorn dated June 25 and July 8, 1981.)

It fairly can be predicted that the issuance of the subpoenas, whether or not a prior showing of general relevance is required, the service of the subpoenas and notices of deposition, and the taking of the depositions cannot reasonably be accomplished L

l e ,+ , ,- w y 9 -, , . -,-w

by August 28, 1981. This is particularly so in view of the number of depositions already scheduled to be taken by that date as well as other discovery matters to be completed.

If the Board declines to clarify the July 10, 1981 Order (Closing Discovery) so as to indicate that dates for depositions are to be scheduled by August 28, 1981, but that the depositions'actually need not be taken by that date, PCCI.

respectfully move to reconsider its rulin gs , and for the fore-going reasons, to so order,

b. The order closing discovery also provides that "all responses to discovery be updated by August-31, 1981."

PCCI respectfully submit that this provision should be clarified.

The Order (Denying Motion to-Supplement Discovery),

dated May 20, 1981, provides that "the Board will require that the parties update all of their previous responses by a date certain, and will permit a further round of discovery based upon the ' updated responses." To the extent

'..at the July 10, 1981 order closing _

_ discovery was intended to impose that requirement, it fails to do so fully by omitting the authorization for the "further round of discovery." The matters to be updated or supplemented under 10 CFR

$2.740(e) include the identity of persons expected to be called as expert witnesses' and the substance of the testimony to be offered.

If discovery is barred after such information is furnished, much of the purpose of supplementation will have been frustrated.

Accordingly, PCCI respectfully move the Board to clarify its order closing discovery to require that discovery be updated as of a date certain and that. a further round of discovery based

_ _ . ~ _ _a

-5 on such updated responses be permitted. If PCCI have misunder-stood the Board's intention, then we respectfully move for reconsideration of the Board's ruling and urge that it enter an order consistent with the above-described understanding and with the May 20, 1981 Order (Denying Motion to Supplement Discovery) .

CONCLUSION For the foregoing reasons, PCCI move the Board to enter an Order clarifying the July 10, 1981 orders, as described herein, or, if appropriate, to grant reconsideration thereof.

DATED: July 22, 1981 Respectfully submitted, Robert J. Vollen Jane M. Whicher By:

Robert J. follen Attorneys for Porter County Chapter Intervenors Robert J. Vollen Jane M. Whicher c/o BPI 109 N. Dearborn Suite 1300 Chicago, IL 60602 (312) 641-5570

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

)

NORTHERN < INDIANA PUBLIC ) Docket No. 50-367 SERVICE COMPANY ) (Construction Permit (Bailly Generating ) Extension)

Station, Nuclear-1) )

CERTIFICATE OF SERVICE I hereby certify that I caused copies of Porter County Chapter Intervenors' Motion for Clarification or Reconsideration of Orders Concerning Discovery Dated July 10, 1981 to be served on all persons on the attached service list, by causing them to be deposited in the U.S. mail, first class nostage prepaid, on this

. 22nd day of July 1981.

Robert J. Vollen Jane M. Whicher By: /

R'obert J. p llen Attorneys for Porter County Chapter Intervenors I

i t

Robert J. Vollen Jane M. Whicher c/o BPI 109 N. Dearborn Suite 1300 Chicago, IL 60602 (312) 641-5570 i

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

.~

SERVICE LIST Herbert Grossman, Esq. Gecrge & Anna Grabowski Administrative Judge 3820 Ridge Road Atomic Safety & Licensing Highland, Indiana 46322 Board fanel U.S. Nuclear Regulatory Dr. George Schultz Commission 807 E. Coolspring Road Washington, D.C. 20555 hichigan City, Indiana - 46360 Dr. Robert L. Holton Administrative Judge School of Oceanography Oregon State University Co rvallis , Oregon 97331 Mr. Mike Olszanski Mr. Clifford Mezo Local 1010 - United Steelworkers Dr. J. Venn Leeds of America Administre.tive Judge 3703 Euclid Avenue 10807 A T.well East Chicago, Indiana 46312 Ho us ton, Texas 77096 Stephen H. Lewis, Esq.

. Office of the Executive Legal Director U.S. Nuclear Reo latory Commission Maurice Axelrad, Esq. Uashington, D.C. 20555 Kathleen H. Shea, Esq.

Lowenstein, Newman, Reis, Anne Rapkin, Asst. Attorney GeneraD Axelrad and Toll John Van Vranken, Environmental 1025 Connecticut Ave., N.W. Control Division Nashington, D.C. 20036 188 W. Randolph - Suite 2315 Chicago, Illinois 60601 William H. Eichhorn, Esq.

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

William P. Schultz, Esq. Stephen Laudig, Esq.

Suite 700 21010 Cumberland Road 2000 P Street, N.W. Noblesville, Indiana 46060 Washington, D.C. 20036 Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555