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(?*'* February 4, 1980

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UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION s:1 ~

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k 9f(4h r$ q$ ' $\,BEFORE THE ATOMIC SAFETY AND LICENSING BOARD c s

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Both NIPSCO and the NRC staff have taken the

position that no petitioners hav'e standing to intervene

in this proi:eeding, that all petitions to intervene;

should be denied and thus that there should not be any

hearing. While we believe that position is ludicrous,

particularly with respect to Joint Intervenors who have

been parties to all Bailly administrative and judicial-

proceedings since 1972, nonetheless NIPSCO and the Staff

have exercised their legal right to raise it. Until the

legal issue of standing is resolved favorably to Joint ,

Intervenors, and to other petitioners, as we are confident

it will be, it obviously is premature, and inappropriate,

to schedule a prehearing conference prior to which additional

specific contentions and the bases therefor would have to

besubmitted.b/!

; Rather, the fair and orderly procedure, and that

contemplated by the Commission's regulations, is for the

Board to first rule on whether petitioners , including Joint

Intervenors, have satisfied the requirements for intervention

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b/ Joint Intervenors will be pleased to provide any furtherlegal argument (oral or written) or factual material'which the Board might desire to enable it to rule onthe issues of whether Joint Intervenors have standingto intervene and whether a hearing should be held.

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and on whether a hearing will be held. After a ruling

permitting intervention and directing a hearing, a

reasonable time and opportunity for access to information

should be permitted and a schedule should be established

'for filing of additional specific contentions , a prehearing.

conference and other appropriate matters.2/ -.

The Order of Lacember 31, 1979, establishing the

Board, contemplated that it would first rule on petitions

for leave to intervene and then preside over the proceeding

in the event that a hearing is ordered. That is also t,heprocedure contemplated by 10 CFR 52.714. Under that

section, the matters of whether intervention should be

permitted and whether a hearing should be held (52.714(a)(1)

and (2) and (e)) , are separate from the matter of what

contentions will be litigated (52.714(b)). While we do not

dispute that 52.714(b) requires that in order to participatei

as a party at the hearing one must file at least one con- |

tention which satis fies the requirements of that paragraph, i1

that does not conflict with the clear language and logic

of the rule -- the matter of intervention is separate from,

and should be decidad prior to, the matter of contentions.

2_/ NIPSCO makes the argument that discovery cannot begin untilafter-a prehearing conference. Of course, there is no issueconcerning discovery before the Board at this time andthere will be none until some- party seeks discovery andanother party opposes it. Nonetheless, it should be notedthat NIPSCO is wrong. The reliance by NIPSCO on 10 CFR52.740(b) is misplaced, since by its terms that section onlylimits the timing of discovery in "a proceeding on anapplication for a construction permit or an operatinglicense" and this proceeding is for neither of those.

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NIPSCO's effort to merge intervention and contentions

is flatly contradicted by the structure of 52.714, and -

by the Notice of Opportunity for Hearing in this matter.

The fact that a petition to intervene need not contain

contentions demonstrates that intervention and contentionsareseparatematterstobeconsideredseparately.3/The re'. ef sought by NIPSCO would result in w.neces s ary .

confusion, additional and unnecessary litigative activities,

and would deprive Joint Intervenors of a fair opportunityto prepare additional contentions to be litigated.

NIPSCO's reliance on 10 CFR 52.751a is misplaced.'

Unless, contrary to the position in NIPSCO's Response to

Petitions Filed in Response to Notice of. Opportunity for

Hearing, dated January 18, 1980, NIPSCO is now conceding

that'this is a " proceeding involving an application fora construction permit" (5 2.751a(a)) , that section does

not apply. Clearly this is not a " proceeding involvingan application for. . .an operating license" (id.), and since

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52.751a applies only to those two types of proceedings,it does not apply here.

Moreover, even if 52.751a did apply, it would not

provide support for the unreasonable and unfair schedule

proposed by NIPSCO. The rule provides for the holding of

the special prehearing conference "within ninety (90) days

after the notice of hearing is published" (52.751a(a),

footnote omitted). In this matter, a notice of hearing|,

3_/ In point of fact, of course, Joint Intervenors'Petition does contain contentions which satisfy therequirements of 52.714

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has not .yet been published. / Indeed, since presumably a notice

of hearing will not be published until after the Board has

ruled that there will be a hearing, and presumably it will do

that only after it grants one or more petitions to intervene,

the procedure contemplated in 52.751a directly supports JointIntervenors' position that intervention should be ruled on

prior to the matter of contentions being dealt with.~

The procedure sought by NIPSCO's motion is contrary to theCommission's regulations, puts unfair and unreasonable constraints

on the partLes, and would result in unnecessary confusion andduplication of efforts. The motion should be denied. .

Respectfully submitted, @ q,

Robert J. Vollen OfN @y 3Edward W. Osann, Jr. $-Robert L. Graham C -

Dated: February 4, 1980 By // / gRobert J. Vollen Robert J. [ollen y gc/o BPI Attorneys for Porter County109 N. Dearborn St. of ^ the Izaak Walton League of America, Ini

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Suite 1300 Concerned Citizens Against Bailly NuclearChicago, IL 60602 Site, Inc.; Businessmen for the Public(312) 641-5570 Interest, Inc.: James E. Newman and

Mildred Warner (Joint Intervenors)Edward W. Osann, Jr.One IBM PlazaSuite 4600Chicago, IL 60611(312) 822-9666

Robert L. GrahamOne IBM Plaza - 44th Fir.Chicago, IL 60611(312) 222-9350

b/NIPSCO's motion (p. 4) refers to "the usual prehearing conferencepractice provided by 10 CFR S2.751a, convening a prehearinconference within 90 days after publication of the notice.g'NIPSCO, however, is seeking a prehearing conference 90 daysaf ter publication of Notice of Oooortunity for Hearing, not 90days after publication of Notice of Hearing, to which S2.751arefers. We assume that NIPSCO's failure to specify which typeof notice starts the 90 day period running was inadvertent.

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CERTIFICATE OF SERVICE

I hereby certify that I have served copies ofthe foregoing Joint Intervenors' Answer in Oppositicnto Motion for Establishment of Schedule for Prehearing

Conference and Related Filings , dated February 4,1980,

upon each of the persons named on the attached Service

List, by causing copies to be deposited in the U. S. Mail,in envelopes properly addressed and sealed, first class

postage prepaid, this 4th day of February, 1980.

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Attorneg'

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SERVICE LIST

Herbert Grossman, Esq., Chairman George and Anna GrabowskiAtomic Safety and Licensing 7413 W. 136th Lane

Board Panel Cedar Lake, Indiana 46303U.S. Nuclear Regulatory CommissionWashington, D. C. 20555 Dr. George Schultz

110 California St.Dr. Richard F. Cole Michigan City, Indiana 46360Atomic Safety and Licensing .

Board Panel . Richard L. Robbins, Esq.'U.S. Nuclear Regulatory Commission Lake Michigan FederationWashington, D. C. 20555 53 W. Jackson Blvd.

Chicago, IL 60604Mr. Glenn O. BrightAtomic Safety and Licensing

Board Panel Mr. Mike OlszanskiU.S. Nuclear Regulatory Commission Mr. Clifford MezoWashington, D. C. 20555 United Steelworkers of America

3703 Euclid Ave.Maurice Axelrad, Esq. East Chicago, Indiana 46312

4 Kathleen H. Shea, Esq.Lowenstein, Newman, Reis, Steven C. Goldberg, Esq.Axelrad and Toll Office of the Executive

1025 Connecticut Ave., N. W. Legal Director,

Washington, D. C. 20036 U.S. Nuclear RegulatoryCommission

William H. Eichhorn, Esq. Washington, D. C. 20555Eichhorn, Eichhorn & Link5243 Hohman Avenue Dean Hansell, Esq.Hammond, Indiana 46320 Assistant Attorney General

John Van Vranken, Esq.Diane B. Cohn, Esq. Environmental Control DivisionWilliam P. Schultz, Esq. 188 W. Randolph St.Suite 700 Suite 23152000 P Street, N. W. Chicago, IL 60601Washington, D. C. 20555

Stephen Laudig, Esq.Atomic Safety and Licensing 445 N. Pennsylvania Ave.

Board Panel Indianapolis, Indiana 46204U. S. Nuclear Regulatory CommissionWashington, D. C. 20555 Docketing and Service Station

Office of the SecretaryAtomic Safety rnd Licensing U.S. Nuclear Regulatory

Appeal Bes: ' Panel CommissionU.S. Nue: ca- Regulatory Commission Washington, D. C. 20555Washingte., D. C. 20555

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