ML19340C163

Response in Opposition to Porter County 801024 Motion to Compel Production of Contracts W/Util.Release of Confidential Business Info May Cause Irreparable Harm.Urges Issuance of Protective Order.Certificate of Svc Encl

ML19340C163
Person / Time
Site:	Bailly
Issue date:	11/07/1980
From:	Edgar G, Gallen K GENERAL ELECTRIC CO., MORGAN, LEWIS & BOCKIUS
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19340C160	List: ML19340C159 ML19340C163
References
NUDOCS 8011140065
Download: ML19340C163 (10)

Text

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O 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

) Extension)

(Bailly Generating Station, )

Nuclear-1) )

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. GE ANSWER IN OPPOSITION TO PORTER COUNTY INTERVENORS SECOND MOTION TO COMPEL PRODUCTION OF DOCUMENTS On October 24, 1980, the Porter County Intervenors moved the Board to enter an order compelling NIPSCO to produce certain contracts between GE and NIPSCO. On -1/October 14, 1980, !

1 GE had appeared specially and moved for a Protective Order in re-  !

gard to the contracts in question. GE hereby responds to the Porter County Chapter Intervenors' Motion to Compel Production of Documents, dated October 24, 1980, as follows- l l

1. The Porter County Intervenors' Motion rests on two l basic grounds: (a) it would be unfair to Porter County to defer production by NIPSCO until the Board has ruled on GE's Motion for a Protective Order (Porter County Motion at 2); and (b) two of the 1/ Hereinafter referred to as " Porter County Motion."

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-2 j alternative forms of a protective order sought in GE's Motion are without merit, while the third alternative will be shown to be without merit (Porter County Motion at 3).

2. Porter County's concept of fairness is misplaced.

If Porter County's Motion were granted, it would require production befsre the Board has an opportunity to rule on GE's Motion. This would be manifestly unfair to GE. GE has the right to be heard 2/

concerning the issues presented in its Motion for Protective Order. - '

i GE has alleged that these contracts contain confidential and pro-prietary business information, the release of which will cause com-petitiva h. arm to GE. If production by NIPSCO is ordered before a ruling on GE's Motion, the documents in question would be publicly disclosed, and the harm which GE is attempting to avoid would have 3/

already occurred - This harm would be irreparable and GE's right 4/

to be heard on this issue would become academic. - Inasmuch as i there is no firm schedule for discovery in this proceeding, the deferral of production, pending a ruling on GE's Motion, would have

-2/ See e. . , Kansas Gas & Electric Co. (Wolf Creek 1), ALAB-311, I NR (1976); Consumers Power Co. (Midland 1 and 2), ALAB-l 122, 6 AEC 322 (1973).

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-3/ As the court noted in Wearly v. FTC, 462 F. Supp. 589, 593 (D.N.J. 1978), vacated on other grounds, 616 F.2d 662 (3rd Cir. 1980) "the disclosure of the tenor and content of pro-prietary information destroys its value as well as the property interest in it." j

-4/ As for Porter County's argument that the third alternative form of protective order sought by General Electric will be shown to be without merit, see GE's Motion for a Protective Order With Respect to Notice of Deposition, dated November 7, i 1980. '

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-3 no adverse effect upon Porter County or any other party. Porter County's assertion to the contrary notwithstanding, fairness would mandate deferral of production pending a ruling by the Board on GE's Motion.

3. Porter County's related assertion that "the first two alternatives sought in General Electric's Motion for a Pro-tective Order are without merit . . . ." (Porter County Motion at

2) is itself without merit. Porter County relies upon its Partial Answer in Opposition to Motion for Protective Order, dated 5/

October 24, 1980. - (Porter County Motion at 2). The Partial Answer, in turn, rests on four basic propositions:

a. A bald assertion that the requested docu-ments are relevant to contentions which have been admitted (Porter County Partial Answer at 4).

b. A conclusion and statement that GE has not shown that future rulings on contentions could affect the production of documents (Porter County Partial Answer at 4).

c. An aside that "as a non-party, [GE's] . . .

views on the relationship between the scope l

of admitted contentions and the breadth of discovery requests are beside the point" (Porter County Partial Answer at 4).

5/ Hereinafter referred to as " Porter County Partial Answer."

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d. An outright refusal to specify how the information sought is relevant to matters at issue (Porter County Partial Answer at a

4).

4. GE clearly has a right to be heard on the issue of whether it is entitled to a protective order to prevent or condition disclosure of the documents in question. See e.g.,

Kansas Gas & Electric Co., ALAB-311, supra. It should be noted i

that discovery in this proceeding is also clearly limited to the scope of Porter County's Contentions. Allied General Nuclear Services (Barnwell), LBP-77-13, 5 NRC 489, 492 (1977); Illinois Power Co. (Clinton 1 and 2), ALAB-340, 4 NRC 27 (1976). Where, as here, discovery seeks public disclosure of the proprietary in-formation from a third party, there is even greater reason for in-sisting that relevance be shown. Cf. Illinois Power Co., supra.

Porter County has an affirmative obligation to specify how these centracts are relevant to its contentions or how discovery of these contracts will lead to the discovery of admissible evidence.

10 C.F.R. S 2.740(b)(1) . Porter County has not yet done so.

Porter County's Partial Answer is proof in itself of i its refusal to specify how these contracts are relevant to its con-tentions and resolve the instant controversy. After final rulings by the Board on the admissibility of Porter County's contentions, it may become obvious that the documents in question are irrelevant and disclosure under any cirt umstance may prove unnecessary. ,

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-5 As a result, it seems both fair and reasonable to defer production until such time as the process of rulings on contentions creates the framework in which an intelligent ruling on production can be made. In any event, it would be premature for the Board to order production of these documents at this time. Detroit Edison i

Co. (Enrico Fermi 2), LBP-78-37, 8 NRC 575, 584 (1975) (premature discovery request denied).

5. GE remains willing to produce the documents subj ect to a fair and reasonable protective order designed to protect GE against public disclosure of the contents of these contracts while at the samd time accommodating Porter County's interests in this proceeding. While Porter County would appear to be dissatisfied with the form of protective order attached to GE's Motion for 6/

Protective Order, dated October 14, 1980, - this form of order is based upon an order endorsed by the Appeal Board in the Wolf Creek proceeding and utilized in many subsequent NRC licensing proceedings.

It should also be noted that in Porter County Chapter of the Izaak Walton League of America, Inc v. USAEC, 380 F. Supp. 630, 634 (N.D. Ind. 1974), the court upheld the AEC's denial of an FOIA request seeking public disclosure of proprietary information sub-mitted to the AEC by GE in connection with original construction permit proceedings for the Bailly plant. In so holding, the Court noted that 6/ See footnote, Porter County Partial Answer at 3.

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-6 Defendants [AEC et al. stated and plaintiffs [ Porter Coun]ty] did not disa gree , that plaintiffs, as parties to the AEC licensing proceeding, could have received access to the 'proprie-tary' information in issue pursuant to an ap3ropriate protective arrangement prohiaiting further dissemination.

(Gossick affidavit, para. 13). Thus, at stake here was not plaintiffs' own access to the information, but rather whether the Government must make the material publicly available, without any restrictions whatsoever. In ad-dition to what has already been said, the Court believes that unrestricted release of such private commercial in-formation would tend to adversely affect the Government's own ability to gain access to similar information in the

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future. Ultimately, such release could seriously affect the thoroughness of AEC review of license applications, and have an adverse impact on public health and safety.

(emphasis added).

6. GE submits that a fair balance of the competing interests in the instant controversy would support either:

(1) deferring production until final rulings on contentions, (2) requiring Porter County to cpecify how the documents are relevant or could be relevant to matters in issue, or (3) disclosing of the contracts pursuant to a protective order designed to protect against any form of public disclosure of the contracts or their contents. Up until this point in time, Porter County has refused to provide the necessary specificity and the Board should therefore anter an order deferring production or permitting production only 1

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. -7 in accordance with the form of protective order previously sub-mitted by GE.

Accordingly, GE requests that ite Motion for a Pro-tective Order be granted.

Resp ctfull submitted,

, h eorge . d ar Attorney for General Electric Company 0F COUNSEL Xevin P. Gallen Morgan, Lewis & Bockius 1800 M Street, N.W.

Washington, D.C. 20036 Dated: November 7, 1980

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ) Docket No. 50-367

)

NORTHERN INDIANA PUBLIC SERVICE ) (Construction Permit COMPANY ) Extension)

)

(Bailly Generating Station, )

Nuclear 1) )

CERTIFICATE OF SERVICE I hereby certify, this 7th day of November, 1980, that copies of GE's Motion For Protective Order With Respect To Notice Df Deposition and GE Answer In Opposition To Porter County Intervenors' Second Motion To Compel Production Of Documents have been served by hand upon those on the following list marked by an asterisk, and by mail, first class and postage prepaid, upon the remainder:

Herbert Grossman, Esquire U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Glenn O. Bright U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Richard F. Cole U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Howard K. Shapar, Esquire Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C. 20555 l

-2 Dr. George Schultz 110 California Michigan City, Indiana 46360 Robert J. Vollen, Esquire c/o BPI 109 North Dearborn Street Suite 1300 Chicago, Illinois 60602 Edward W. Osann, Jr., Esquire One IBM Plaza Suite 4600 Chicago, Illinois 60611 William H. Eichorn, Esquire 5243 Hohman Avenue Hammond, Indiana 46320 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana 46312 Tyrone C. Fahner Attorney General, State of Illinois Environmental Control Division 188 West Randolph Street, Suite 1215 Chicago, Illinois 60601 Richard L. Robbins, Esquire Lake Michigan Federation 53 West Jackson Boulevard Chicago, Illinois 60604 .

Mr. George Grabowski Ms. Anna Grabowski 7413 W. 136th Iane Cedar Lake, Incf.ana 46303 Stephea Laudig, Esquire 21010 Cumberland Road Noblesville, Indiana 46060

• Maurice Axelrad, Esquire Kathleen Shea, Esquire Lowenstein, Newman, Reis , Axelrad & Toll 1026 Connecticut Avenue, N.W.

Washington, D. C. 20035

-3 Robert W. Hammesfahr, Esquire 200 East Randolph Street Suite 7300 Chicago, Illinois 60601 Diane B. Cohn, Esq.

William P. Schultz, Esq.

Suite 700 2000 P Street, N.W.

Washington, D. C. 20036 Steven C. Goldberg, Esq.

Office of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Susan Sekuler, Esq.

Assistant Attorney General John Van Vranken, Esq.

Environmental Control Division 188 W. Randolph St. - Suite 2315 Chicago, Illinois 60601 Atomic Safety and Licensing Appeal Bos-d Panel U. S. Tuclear Regulatory Commission Washington, D. C. 20555

• Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20555 ,

5 n-Kyvin P. GaYlen Morgan, Lewis & Bockius Suite 700 1800 M Street, N.W.

Washington, D. C. 20036 (202) 872-5121 Attorney for General Electric Company DATED: November 7, 1980