ML19260E095

Response in Opposition to Citizens Concerned About Nuclear Power Motion to Compel Applicants Payment for Document Copying Re Intervenor Discovery.Federal Rules & Court Decisions Do Not Impose Such Costs.Certificate of Svc Encl

ML19260E095
Person / Time
Site:	South Texas
Issue date:	01/22/1980
From:	Newman J, Schwarz M BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002130345
Download: ML19260E095 (7)

Text

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UNITED STATES OF AMERICA 7 G' ,,f h'

NUCLEAR REGULATORY COMMISSION -

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD -  ;

In the Matter of ) ' [7M7

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M-HOUSTON LIGHTING AND POWER COMPANY,) Docket Nos. 50-498 OL et al. ) 50-499 OL

)

(South Texas Nuclear Project )

Units 1 and 2) )

APPLICANTS' RESPONSE TO CCANP'S MOTION TO COMPEL APPLICANTS TO BEAR EXPENSES OF COPYING PURSUANT TO DISCO'.'ERY BY INTERVENORS AND 50 TION TO COMPEL APPLICANTS.

TO PROVIDE DISCOVERY ON SATURDAY Houston Lighting & Power Company, Project Manager of the South Texas Project, acting on behalf of itself and the other Applicants, the City of San Antonio, Texas, acting by and through the City Public Service Board of the City of San Antonio, Central Power and Light Company and the City of Austin, Texas, (hereinafter " Applicants")

files this response to the motions filed by Intervenor ,

Citizens Concerned About Nuclear Power, Inc. (CCANP) request-ing the Board to order Applicants (1) to bear the costs of reproducing documents requested by CCANP during discovery and (2) to provide discovery on Saturdays. For the reusons discussed below, the Board should deny both motions.

A. Intervenor Must Bear Its Own Expense for Copying Documents CCANP urges the Board to issue an order " compelling r

800213o 3e 5~

Applicants to bear the cost of copying incurred in re-sponse to discovery by Inte.venors." / Intervenor states that the NRC discovery procesa is " essentially parallel" to the judicial discovery procedures , and under the latter the party who produces documents requested by interrogatories must bear the cost of reproducing such docume.ts. No citation of authority is provided by CCAUP.

10 CFR S2.741(a) provides:

(a) Any party may serve on any other party a request to:

(1) Produce and permit the party making the request, or a person acting on his behalf, to inspect and copy any designated documents, or to inspect and copy, tast, or sample any tangible things which are within the scope of S2.740 and whic a are in the possession, custody, or con.rol of the party upon whom the requesf. is served.

Clearly, the language of S2.741 requires only that a

• / Applicants are somewhat surprised by CCANP's motion.

After receiving Intervenor's request for copies of a large number of documents and drawings during a visit to the STP site on January 12, 1980, Applicants raised the question of payment for the cost of copying documents made available for inspection pursuant to NRC discovery procedures. Intervenors were advised by Applicants that such costs are normally borne by the party requesting the w.cuments. After contacting Mr. McGurren, NRC Staff Counsel in this proceeding, Intervenors indicated that they would seek an opinion on this matter from the Commission's General Counsel; not, as alleged in their motion, that they would seek an order from this Board requiring Applicants to bear the cost of copying. It was agr eed, however, that pending issuance of an opinion by the General Counsel, CCAMP would be billed for these costs and would pay same to the Applicants subject to reimbursement should the General Counsel conclude that Applicants should bear these costs.

party make available, for inspection and copying, documents requested by another party during discovery.

It does not, in any way, impose an obligation on the party producing the documents to make copies, at his own expense, of such requested documents.

The Commission's discovery rules are patterned af ter the Federal Rules of Civil Procedure and court decisions interpreting the Federal Rules provide guidance in intt .preting the NRC rules and regulations. E.g.,

Connonwealth Edison Co. (Zion Station, Units 1 and 2) ,

ALAB-196, 7 AEC 457 (1974'. Under the Federal Rules, a party requesting production of documents for inspection must bear the costs of reproducing these documents.

Niagara Duplication Co. v. Shackleford, 160 F.2d 25, 26 (D.C. Cir. 1947); Monarch Insurance Co. V. Spach, 281 F.2d 401, 413, n.30 (5th Cir. 1930): Berg v. Hoppe , 352 F.2d 776, 779 (9th Cir. 1965); 4A Moore's Federal Practice 5S34.19[2], 34.19[3] (1978). Indeed, it has been held that a court may not properly order otherwise. Niagara Duplication Co. v. Shackleford, supra.

Thus, there is no basis whatsoever for CCAMP to argue that Applicants in this proceeding should be re-quired to pay for the costs of duplicating documents which are copied at the request, and for the convenience, o f CCANP.

B. Discovery Must Take Place During Normal Business Hours CCANP requests the Board to order Applicants to allow CCAMP to inspect documents at the STP site on Saturdays as well as during wee % days. As a basis for this request, Intervonors list s!.x reasons, all of which fall into two categories: (1) c]nvenience to Intervenors in terms of driving to and from San Antonio and (2) convenience to Intervenors and their expert witnesses in terms of not missing working days. None of the reasons in these two categories are sufficient to re-quire Applicants to make documer cs available for inspection and copying on Saturdays.

Under the Federal Rules of Civil Procedure, documents requested during discovery are required to bc produced during reasonable business hours. See, for example, Harris v. Sunset Oil Co., 2 F.R.D. 93 (U.D. Wash. 1)M 1) .

Applicants made an exception to this general rule on January 12, 1980, in order to accommodate Intervenor's unfounded concerns over possible falsification of documents.

This was done at substantial inconvenience and expense to Applicants. For example, Applicants were required to pay $3,174.13 in overtime wages to 25 hourly employees for their Saturday work; several other employees, normally based in Houston, were inconvenienced in having to be at the site on a Saturday. Intervenor's motion implies that only they could be inconvenienced

by the time limitations that are placed on their right to inspect documents at the STP site. As the above facts demonstrate, however, Applicants will also be incon-venienced in equal or greater measure.

i The circumstances relating to the January 12 inspection of documents are no longer present and Intervenors have not shown any exceptional grounds for requiring discovery to be conducted outside of normal business hours. Accord-ingly, the Board should deny CCANP's request.

Respectfully submitted, y ALW11 ack R. Newmah Robert H. Culp David B. Raskin 1025 Connecticut Avenue, N. W.

Washington, D. C. 20036 Melbert D. Schwarz C. Thomas Biddle, Jr.

Charles G. Thrash, Jr.

3000 One Shell Plaza Houston, Texas 77002 Attorneys for HOUSTON LIGHTING &

POWER COMPANY, Project Manager of the South Texas Project, acting herein on behalf of itself and the other Applicants, THE CITY OF SAN ANTONIO, TEXAS, acting by and through the City Public Service Board the City of San Antonio, CENTRAL POWER AND OF COUNSEL:

LIGHT COMPANY and THE CITY OF AUSTIN, TEXAS Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.

Washington, D.-C. 20036 Baker & Botts 3000 One Shell Plaza Houston, Texas 77002

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

)

HOUSTON LIGHTING & POWER COMPANY, ) Dockets Nos. 50-498-OL

) 50-499-OL ET AL.

)

(South To::as Project, Units 1& 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of Applicants' Response to CCANP's Motion to Compel Applicants to Bear Expenses of Copying Pursuant to Discovery by Intervenors and Motion to Compel Applicants to Provide Discovery on Saturday were served on the following by deposit in the United States mail, postage pre-paid, or by hand delivery, this 22nd day o f January ,

1980:

Char]es Bechhoefer, Esq.

Chairman Atomic Safety anc Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. James C. Lamb, III 313 Woodhaven Road Chapel Hill, North Carolina 27514 Dr. Emmoth A. Luebke Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555 Henry J. McGurren, Esq.

Hearing Attorney Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, DC 20555 Richard W. Lowerre, Esq.

Assistant Attorney General for the State of Texas P. O. Lu> 12548 Capitol Station Austin, Texas 78711 '

Honora' ale Burt O'Connell County Judge , Matagorda County Matagorda County Court House Bay City, Texas 77414 R. Gordon Gooch, Esq.

Baker and Botts 1701 Pennsylvania Avenue, NW Washington, DC 20006 Ms. Peggy Buchorn, Executive Director Citizens for Equitable Utilities Reute 1, Box 432 Brazoria, Texas 77422 Mr. Lanny Alan Sinkin Citizens Concerned About Nuclear Power 838 E. Magnolia San Antonio, Texas 78212 Steve Sinkin, Esq.

116 Villita San Antonio 78205 Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Chase R. Stephens Docketing and Service Section Office of the Secretary of the Commission U. S. Nuclear Regulator' Commission Washington, DC 20555

,g Jack R. Newman