ML19336A557

Partial Response in Opposition Ot GE Motion for Protective Order.Motion Presumptuous Due to GE Status as non-party from Whom Discovery Is Not Sought

ML19336A557
Person / Time
Site:	Bailly
Issue date:	10/24/1980
From:	Vollen R IZAAK WALTON LEAGUE OF AMERICA, PORTER COUNTY CHAPTER, VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19336A558	List: ML19336A557 ML19336A562 ML19336A565 ML19336A567
References
ISSUANCES-CPA, NUDOCS 8010300061
Download: ML19336A557 (5)

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

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PORTER COUNTY CHAPTER INTERVENORS ' PARTIAL ANSWER IN OPPOSITION TO MOTION FOR PROTECTIVE ORDER General Electric Company, which is not a party to this proceeding and which is not a person from whom discovery is sought, has moved for the entry of three different alternative protective orders. Porter County Chapter Intervenors hereby submit their answer in opposition to the first and second alter-natives in that motion. We show that they are utterly without merit and should be denied.

As to the third alternative, we are filing today our Motion to Extend Time to Complete Answer until we have had an opportunity to take limited discovery, including the deposition of Eugene W. O'Rorke, General Manager, Domestic BWR Proj ects Department of General Electric Company, whose affidavic has been filed in supporc of the third alternative.

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On August 21, 1980, Porter County Chapter Intervenors served their First Request to NIPSCO for Production of Documents, paragraph 6 of which seeks the following:

"All contracts , subcontracts and agreements between NIPSCO and any contractor, sub-contractor or supplier for any component, part or materials for', or labor pertaining to, the construction or operation of the Bailly plant."

The request, pursuant to 10 CFR 52.741, was directed to NIPSCO. General Electric Company is not a party to this proceeding.

Porter County Chapter Intervenors had not sought discovery from General Electric Company by any method, formal or informal, prior to the filing of the instant motion.

NIPSCO was requested to produce the documents on September 26, 1980. However, at the requests of counsel for NIPSCO, counsel for Porter County Chapter Intervenors agreed to defer to October 14, 1980 the date for NIPSCO's response with respect to NIPSCO's contracts with General Electric Company, under which General Electric is to supply a nuclear steam supply system and turbine generator for Bailly. On October 14, 1980, General Electric , but no t NIPSCO, filed a motion for a protective order.* It supplemented its motion

• Pursuant to the Request, NIPSCO did produce on September 26, 1980 and on October 23, 1980, other contracts with General Electric for other components for the Bailly plant.

with an affidavit of Eugene W. O'Rorke, filed on October 17, 1980.

A protective order is appropriate only where a party or person from whom discovery is sought, of which General Electric is neither, shows " good cause" for it and that justice requires the order to protect such a party or person from annoyance, embarrass-ment, oppression, or undue burden or expense. 10 CFR 52. 740(c) .

General Electric has failed to satisfy any of these requirements in either of the first two alternative protective orders it seeks .

General Electric offers the following excuse for its delay in filing the supporting affidavit:

Up to this point in time, GE believed that GE, the Licensee, and intervenors could reach an acceptable resolution of this item and execute an appropriate form of protective order. As a result of a last minute breakdown in these discussions , GE has not had the opportunity to complete an appropriate form of supporting affi-davit, and the undersigned only became aware of this matter today. (Motion, p. 4; footnote omitted).

Porter County Chapter Intervenors are not aware of any possible basis for GE's belief that an acceptable resolution of this item could be reached. We never provided any such basis. Indeed, we have. never discussed the matter with any representative of GE. While counsel for Porter County Chapter Intervenors did discuss the matter of a protective order with counsel for NIPSCO, we never provided the basis for any belief that an acceptable resolution could be reached.

In fact, the proposed form of protective order and form of supporting affidavit which counsel for NIPSCO submitted for our consideration are very different from those now submitted to the Board by General Electric. In sum, there was no "last minute breakdown o f discussions ," at least not any to which we had been party. Finally, we know of no reason why counsel for General Electric could not have been aware of the matter prior to the day NIPSCO's response was due.

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The first alternative form of protective order asks that the Board delay discovery "pending admission of all intervenor contentions and the opportunity to examine the document request in light of those admitted contentions ." (Motion, p. 2). General Electric conveniently ignores the fact that there are contentions  ;

which have been admitted to which the requested documents are relevant. l It submits no basis for an inference that the Board's future rulings on the admissibility of contentions could affect the production of documents relating to already-admitted contentions. Moreover, General Electric ignores the fact that, as a non-party, its views on the relationship between the scope of admitted conte tions and the breadth of discovery requests are beside the point. Clearly, General Electric's attempt to delay these proceedings and to frustrate Porter County Chapter Intervenors ' legitimate discovery requests should not be tolerated by this Board.

General Electric's second alternative form of protective order asks ine Board to order Porter County Chapter Intervenors "to state with specificity how each matter or type of informatinr.

sought relates to matters at issue" in this proceeding. (Motion at p. 3). The reason for this request is purpor**dly to enable General Electric to make a judgment regarding whether Porter County Chapter Intervenors' request to NIPSCO is " reasonably designed to lead to relevant info rmation . " (Id.) General Electric has failed to suggest any possible basis for its standing to raise such a relevancy objection to a document request which i: not even directed to it, in a proceeding to which it is not a party. Such a deter-mination is not for General Electri. to make, and has not been 1

1 raised by NIPSCO. Similarly, there is no basis for General Electric's effort to impose some requirement for a showing by parties,far beyond what the Commission's regulations contemplate, as a prerequisite to obtaining discovery. Nor is there a basis for General Electric to determine, or to participate in the determination, as to the " appropriate forms" for Porter County Chapter Intervenors to seek information through discovery.

In sum, both of the first two of the three siternative protective orders requested by General Electric are entirely unsuppor table and presumptuous . They should be denied.

DATED: October 24, 1980 Respectfully submitted, Robert J. Vollen Jane M. Whicher By: y

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Ro'oert J. VfLlen Attorneys for Porter County Chapter Intervenors Robert J. Vollen Jane M. Whicher 109 N. Dearborn St.

Chicago, IL 60602 (312) 641-5570 1

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