ML20053E680

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

ML20053E680
Person / Time
Site:	Bailly
Issue date:	06/04/1982
From:	Vollen R, Whicher J BUSINESS & PROFESSIONAL PEOPLE FOR THE PUBLIC INTERES
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20053E681	List: ML20053E680 ML20053E682 ML20053E683 ML20053E684 ML20053E685
References
NUDOCS 8206090144
Download: ML20053E680 (5)

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.;r UNITED STATES OF NHERICA NUCLEAR REGULATORY COMMISSION . , .

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9 :4 8 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, )

Nuclear-1) )

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.)

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("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 for fees.

D503 8206090144 820604 PDR ADDCK 05000367 C PDR J

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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 amendment 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. 69061 (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. Reg. 43326 (August 27, 1981) ("Short Pilings proceedings").

3. PCCI is the prevailing party in each of the two proceedi gs.

a. Construction Permit Extension Proceedings.

On May 7, 1982, the Licensing Board entered its final order terminating the proceedings in PCCI's favor. BPI's position in this proceeding, as evidenced by its contentions and other i

j filings, has been that the Bailly construction permit should not be extended and that the plant should not be built.

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

Intervene, filed February 26, 1980. This is precisely what has I occurred under the terms of the termination order.

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b. Short Pilings Proceeding. BPI is also the ~ pre-valling party in the short pilings proceeding. Even'hefore the filing of BPI's " Petition With Respect To Short Piling's Proposal" dated November 1, 1978, BPI had contended that NIPSCO's construc-tion permit did not allow for a plant built on sh' ort 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 armndment 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 foll'ows:

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 Negative 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 justified. -Further, the staff's refusal to take a position at all until July 17, 1981 was not substantially justified.

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b. Short Pilings Proceeding. The original NRC staff position in this proceeding -- that the question of piling dcpth was "left open" at the construction permit hearing, and that no hearing was required under the Atomic Energy Act --

was not sub-stantially jus tified. 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 jus tified.

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 the Internal Revenue Code, 26 USC S501(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 <br />0.204 hours <br />0.00122 weeks <br />2.80048e-4 months <br /> 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 <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> X the statutory maximum rate of $75.00 per hour) and an award  ;

for reimbursement 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 LJ l

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• s s , s a Memorandua of-Law in Support of this. Application, showing the Board taht ' it is entitled to an award under the Equal Access to t Justice'Act.

Respectfully submitted,

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' Robert J . V(97.en ,

( One of the Attorneys for BPI Subscribed and sworn to before me this of June, 1962. M day Q- w

[ Not ary P.u .ic

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hW Jane M. Whicher)

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> One of the attorneys for BPI

before Subscribed ne this 'and 4awornN dayto

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of June, 1982.'

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Notary Pub ic.

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'T h ted: June 4, 1982 1(obe r t J . Vol 'len -

Jane M. Which'er BUSINESS AND PROFESSIONAL PEOPLE FOR

- Tile PUBLIC INTEREST 109 North Dearborn_ Street - #1300 Chicago, Illinois 60602 312/641-5570-

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