ML19340C446

Third Motion to Compel Production of Documents Directed to Util.Contains Response Opposing Util 801023 Motion for Protective Order.Request Need Not Be as Narrowly Drawn as Contention.W/Certificate of Svc.Related Correspondence

ML19340C446
Person / Time
Site:	Bailly
Issue date:	11/06/1980
From:	Vollen R IZAAK WALTON LEAGUE OF AMERICA, PORTER COUNTY CHAPTER, VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8011170381
Download: ML19340C446 (7)

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_ . - , p UNITED STATES OF AMERICA 2 c3 4'op/ 4 NUCLEAR REGULATORY COMMISSION 1; O BEFORE THE ATOMIC SAFETY AND LICENSING BOAP g # # 2 to 3 \

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

Nuclear-1) )

PORTER COUNTY CHAPTER INTERVENORS' THIRD MOTION TO COMPEL PRODUCTION OF DOCUMENTS BY NIPSCO AND ANSWER TO NIPSCO'S MOTION FOR PROTECTIVE ORDER Porter County Chapter of the Izaak Walton League of America, Inc., Concerned Citizens Against Bailly Nuclear Site, Businessmen for the Public Interest, Inc., James E. Newman and Mildred Warner

(" Porter County Chapter Intervenors"), by their attorneys, pursuant to 10 CFi 5 2. 740(f)(1) , move the Board to et. er an order compelling production of documents by NIPSCO, and purcuant to 10 CFR 52.730(c),

herebv answer NIPSCO's Motion for a Protective Order filed on-October 23, 1980.

On-September 18, 1980, Porter County Chapter Intervenors filed their Second Request to NIPSCO for Production of Documents ~~("Second Request"). On October 23, 1980, NIPSCO filed its Response and Objections to Porter County Chapter In".ervenors' Second Request to .

NIPSCO for Production of Documents and Motion for Protective Order }

("NIPSCO Response"), by which it both objects to producing certain .5 of the requested documents and seeks an order relieving it of its f f obligation to produce those documents to which it obj ects . a c,a j

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MOTION TO COMPEL NIPSCO raises the sane basic objection to each of paragraphs 9,10 and 11 of Porter County Chapter Intervenors' Second Request-that the Board has excluded certain contentions or portions of contentions raising issues similar to those involved in the document description. The objectior thus appears to be one of relevancy. The standard for relevancy of discovery is that the request be " reasonably calculated to lead to the discovery of admis sible evidence." 10 CFR 52. 740(b)(1) . There is no require-ment that the documents themselves be admissible. In its objections, NIPSCO consistently fails to apply this relevancy standard.

Paragraph 9 of the Second Request seeks documents relating to NIPSCO's and its contractors ' and subcontractors ' " competence.

study, preparation, technical knowledge, and design ability."

The August 8, 1980 Order Following Special Preher. ring Conference

(" Order") at p. 60, admitted Porter County Chapter Intervenors' Contention 7 which brings into question the lack of technical competence of NIPSCO and its contractors to build the Bailly plant.

This contention was limited by the Board to that technical incompe-tence which was manifested in the delay in construction of the plant. Id.

NIPSCO's apparent dispute is that the document request'is more broadly phrased than the admitted contention, and that. among the NIPSCO, in itr Response at p. 2, correctly points out that the l Board denied a contention requiring NIPSCO to prove its technical competence. That contention was or course submitted by another party,'and differs.significantly from Porter County Chapter Inter-venors Contention 7 because of' the addition of that assertion.

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documenta requested could be those pertaining to an excluded issue. In fact, the request is phrased to lead to the discovery of admissible evidence, and is therefore proper. There is no requirement that a discovery request be as narrowly drawn as a contention. Just the contrary is explicit in the Commission's regulations and has been recognized by this Board. (See Order at pp. 53-54).

Similarly, NIPSCO's objection to paragraph 10 of the Second Request appears to be that it would include documents pertaining to portions of a contention previously ruled inadmissible. However, Porter County Chapter Intervenors ' Contentions 1 and 3 "to the ex ten t that they assert that the reasons for the delay are other than offered by Permittee, that the actual reasons do not constitute good cause for the extension, and that the period of extension is unreasonable" have been admitted. (Order at p. 53) Thus, we are entitled to dis cover whether NIPSCO's financial inability to construe:

the Bailly plant is a true reason for the delay. Again, all that is required is that the request be calculated to lead to the dis-covery of e vidence admissible in the proceeding. The request is clearly framed to fall within this standard, and is therefore proper.

NIPSCO should be compelled to produce the documents falling within paragraph 10.

Paragraph 11 of the Second Request seeks documents related to NIPSCO's ability to comply with NRC requirements which have come into effect since the construction permit was issued. NIPSCO j listed such guides and regulations as a basis for its new requested completion date in its February 7, 1979 letter to Harold R. Denton, j

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.I thereby making the? issue a part of the proceedings. Further, the I

August 8, 1980 Order is clear that the reasonableness of the requested extension-is a proper area of inquiry. (Order at p. 53.)

NIPSCO's bare assertion (NIPSCO-Response at p. 3) that the request "does not relate to 'the actual reasons for delay or the reasonable-ness of the requested extension'" is unsupportable. The request is proper and NIPSCO should be compelled to produce the documents.

NIPSCO again raises an objection to the description of documents "which tend to prove or disprove" (NIPSCO Response at pp. 3-4). Porter County Chapter Intervenors have already demon-strated, in their Motion to Compel Production of Documents and Answer to NIPSCO's Motion for a Protective Order, filed on October 14, 1980 (at pp. 3- 4) , that this objection is without merit.

ANSWER TO MOTION FOR PROTECTIVE ORDER Without asserting any additional grounds , NIPSCO seeks the entry of a protective order to relieve it from producing the same documents to which it obj ects . The Commission's regulations, 10 CFR S2.740(c), state that such an crder is to protect a party or person from " annoyance, embarrassment, oppression, or undue burden or expense." NIPSCO has not shown any of these, nor has NIPSCO has misstated Porter County Chapter Intervenors' position re-garding the definition of "MIPSCO to include its " consultants, contractors and subcontractors." NIPSCO's apparent understanding (NIPSCO Response at p. 1, n.1) is that we have not requested docu-ments in the possession, custody or control of such persons. This is not-the case. .It is documents over which NIPSCO retains no possession, custody or control which have not been requested. The mere fact of possession by a consultant, contractor or subcontractor.

does not insulate.the document from discovery.

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it sought to ' establish the " good cause" also required by 52.740(c) .

I Accordingly, NIPSCO's motion for a protective order should be denied.

CONCLUSION For the foregoing reasons NIPSCO's objections to Porter Coraty Chapter Intervenors' Second Request for Production of Document?

should be overruled and its motion for a protective order sho 21d be denied. An order should be entered compelling NIPSCO to produce all doct.ments to which it has objected in its Response.

DATED: November 6, 1980 Respectfully submitred, Robert J . Vollen Jane M. Whicher By: _ p'

__' Ro'o e r t J./Vo11en Attorneys for Porter County Chapter Intervenors Robert J. Vollen Jane M. Whicher 109 N. Dearborn St.

Chicago, IL 60602 (312) 641-5570

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UNITED STATES OF AMERICA g, g .,

NUCLEAR REGULATORY COMMISSION -

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- 1 C BEFORE THE ATOMIC SAFETY AND LICENSING BOARD b & @,

0 0 4 In the Matter Of G

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

Nuclear-1) )

CERTIFICATE OF SERVICE I hereby certify that I served copies of Porter County Chapter Intervenors' Third Motion to Compel Production of Documents by NIPSCO and Answer to NIPSCO's Motion for Protective Order, dated November 6, 1980, upon each of the persons named on the attached Service List, by causing them to be deposited in the U.S. mail, first class postage prepaid, this 6th day of November, 1980.

Attorney [

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• SERVICE LIST Herbert Grossman, Esq . , Chairman George and le.i. Grabowski

. Atomic Safety and Licensing 7413 W. 136th' Lane Board Panel Cedar Lake, Indiana 46303 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. George Schultz 807 E. Coolsprinn Rd.

Dr. Richard F. Cole Michigan City, mdiana 46360 Atomic Safety and Licensing

Board Panel Richard L. Robbins, Esq.

U.S. Nuclear Regulatory Commission Lake Michigan Federation -

Washington, D.C. 20555 53 W. Jackson Blvd.

Chicago, IL 60604

. Mr. Glenn O. Bright Atomic. Safety and Licensing Mr. Mike Olszanski Board Panel Mr. CliffJrd Meco U.S. Nuclear Regulatory Commission Local 1010 -

Washington, D.C. 20555 United Steelworkers of America 3703 Euclid Ave.

Maurice Axelrad, Esq. East _ Chicago, Indiana 46312 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 Rebclatory Commissior Washington, D.C. 20555 William H. Eichhorn, Esq .

Eichhorn, Eichhorn & Link Susan Sekuler, Esq.

5243 Hohman Avenue Assistant Attorney General Hammond, Indiana 46320 John Van Vranken, Esq.

Environmental Control Division Diane B. Cohn, Esq. .188 W. Randolph St. - Suite 2315 William P. Schultz,.Esq. Chicago, IL 60601 Suite 700 2000 P Street, N. W. Docketing and Service Section Washington, D.C. 20555 office. of the Secretary U.'S, Nuclear Regulatory Atomic Safety 'and Licensing Commission Board Panel Washington, D.C.

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Stephen Laudig, Esq.

Atomic Safety and Licensing No lesv le N 6b60

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Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ,

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