ML19341D490

Limited Reply Per ASLB 810212 Memorandum & Order.Aslb Should Order Production of Documents Because Contract Provisions Between Util & GE Are Relevant & Essential to Issues. Certificate of Svc Encl

ML19341D490
Person / Time
Site:	Bailly
Issue date:	02/24/1981
From:	Vollen R PORTER COUNTY CHAPTER INTERVENORS, VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8103050685
Download: ML19341D490 (7)

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I' #6 M. - BEfC THE ATOMIC SAFETY AND LICENSING BOARD N .

In the Matter of )

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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' LIMITED REPLY TO NIPSCO'S RESPONSC AND OBJECTIONS CONCERNING PRODUCTION OF GENERAL, ELECTRIC CONTRACTS Porter County Chapter Intervenors,'by their attorneys, submit this Limited Reply pursuant to the Memorandum and Order (Permitting Porter County Chapter Intervenors' Limited Reply to NIPSCO'S Response and Obj ections) dated February 12, 1981.

The Board expresses the view that Porter County Chapter Inter-venors have " failed to establish the elements of relevancy necessary to permit the Board's ordering production of the documents" (Memorandum and Order, p. 2). We believe that an understanding of the three points made beiow ,. .. . .

requires the ,-

conclusion that produc tion should be ordere'd'.' . .,'{'".). -

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1. Contrary to the Board's impression (i_d. ~_ at p. 2),

neither General Electric nor NIPSCO has opposed production.of , .

thedocumentsatissuehereonthegroundoflackofrelevancy.}

General Electric merely has asserted that it "cannot accuratelya determine on the current state of the record whether. or _ . . . . . . . not~the'_.'.

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I discovery request is reasonably designed to lead to relevant information" (Motion for Protective Order, dated October 14, 1980,' at p . 3) .

• NIPSCO in turn has made it clear that it has no objection to the production of the contracts other than those asserted by General Electric. (Northern Indiana Public Service Company's Response to November 20, 1980 Order Regarding Discovery, dated December 3, 1980, p. 2.)

In fact, far from claiming that the General Electric contracts are irrelevant, it appears that NIPSCO has conceded their relevancy. Pceter County Chapter Intervenors requested that NIPSCO produce "All contracts, subcontracts and agree-ments between NIPSCO and any contractor, subcontractor or supplier for any compo-nent, part or materials for, or labor pertaining to, the construction or opera-tion of the Bailly plant." (First Request to NIPSCO for Production of Documents, dated August 21, 1980, 16.)

No objection based upon relevancy, or any other ground, was asserted to attempt to prevent discovery of any of those Bailly contracts. (See Northern . Indiana Public Service Company's Response and Objections to Porter County Chapter Intervenors' First Request to NIPSCO for Production of Documents and Motion for a Protective Order, dated September 26, 1980, at p. 1).

In response to the request, NIPSCO produced numerous Bailly By acknowledging that it will produce the contracts, subj ect to what it considers an appropriate protective order, General Electric makes clear that relevancy is not its real concern.

(General Electric Answer In Opposition to Porter County Chapter Intervenors' Second Motion to Compel Production of Documents, November 7, 1980, at p. 5.)

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l contracts, including one with General Electric for the Bailly main power transformer. It is difficult to imagine any basis to distinguish between the relevancy of every other contract for components, parts, or labor for Bailly and the NIPSCO-General Electric contracts for the nuclear steam supply system and the turbine generator.

2. In the absence of an objection to the relevancy of documents sought in discovery, there is no requirement in

_ _ . the Commission's regulations that a requesting party establish  :-

their relevancy. Rather,the discovery pra'ctice contemplated by the Commission's regulations obligates an objector to state the " reasons for objection." (10 CFR 52.741(d).) If, in the face of a properly asserted relevancy objection, the requesting party still seeks the docenents, then that party might need to establish the elements of relevancy in support of a motion to compel discovery, (10 CFR $2.740(f)) . There is no obligation to do so, however, unless relevancy is put into issue by a properly asserted objection. Since therd has been no objection to the relevancy of the NIPSCO-General Electric contracts, there is no obligation upon Porter County Chapter Intervenors to establish the elements of relevancy.

3. In any event, there is no room for serious question that the NIPSCO-General Electric contracts satisfy the elements 1 l

of relevancy for discovery. Relev1ncy for discovery purposes 1

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is not the same as relevancy for purposes of admissibility of evidence.

Rather, a document request must only meet the minimal requirement of appearing to be " reasonably cal-culated to lead to the discovery of admissible evidence."

10 CFR $2. 740(a) (1) . That requirement is met by the request at isst;e here.

Porter County Chapter Intervenors' Contentions 1 and 3, pertaining to reasons given by NIPSCO for the delay in con-struction of Bailly, the true reasons for the delay, and the reasonableness of the requested extension, have been admitted in this proceeding.

, (Order Following Special Prehearing Con-ference, dated August 8, 1980, at p. 52-53.) While we cannot know, until we see them, whether the NIPSCO-General Electric contracts for the nuclear steam supply system and the .:Orbine generator contain information which wil] be admissible in the evidentiary hearing, our request for information is " reason-ably calcule.ted" to lead to information which will be admissible.

For example, there may be provisions of i'ts contracts with General Electric which provided NIPSCO with a financial disin-centive to complete construction of Bailly by the latest com-pletion date. The price provisions of the contract may be tied to external indices or measures so that, for example, NIPSCO could predicc a relatively lower cost at a future date.

Alternatively, there may be provisions providing for penalties on NIPSCO in an amount lower than the increase in the rate of

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inflation, giving NIPSCO an incentive.to delay cancellation or completion of the project. The contracts may impose oblig'ations of a technical nature on NIPSCO, and its inability to fulfill them may have resulted in, or contributed to, its failure to complete construction. This would demonstrate that NIPSCO's lack of technical competence is a cause of its non-completion of Bailly. The contracts may identify then-antici-pated safety problems which subsequently came to fruition and _

were factors in the failure to complete construction by the .

latest completion date. Possibly the contracts indicate that General Electric had a motivation to inhibit NIPSCO's completion of construction of Bailly, or that under the time-for-performance provisions the amount of time sought by NIPSCO in its extension is totally unreasonable.

The provisions of the contracts between NIPSCO and General Electric are, in short, essential to a full and adequate explora-tion of many issued in this proceeding, including the reasons why NIPSCO did not complete construction.of Bailly by September 1, 1979. There is no valid objection to their relevancy, and they should therefore be ordered to be produced.

Dated: February 24, 1981 Respectfully submitted, Robert J. Vollen Jane M Whicher Robert J. Vollen By.

Jane M. Whicher INEert J. V611en 109 North Dearborn One of the Attorneys for Chicago, Illinois 60602 Porter Councy Chapter Intervenors (312) 641-5570

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UNITED STATES OF AMERICA

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_BEFORE THE ATOMIC SAFETY AND LICENSING %I IJ BOARD In the Matter of ) ,

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NORTHERN INDIANA PUBLIC )

SERVICE COMPANY

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Dochet No. 50-367

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(Construction Permit (Bailly Generating Station, Extension)

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Nuclear-1) )

_ CERTIFICATE OF SERVICE s

I, Robert J. Vollen, hereby certify that I served copies of the foregoing Porter County Chapter Intervenors' Limited Reply to NIPSCO'S Response and Objections Corcernin g Production of General Electric Contracts on all perscns on the attached Serviced List, by depositing same in the U.S.

mail on February 24, 1981, first class postage prepaid.

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/ J Robert J. /ollen One of the Attorneys for

. Porter County Chapter Intervenors Robert J. Vollen Jane M. Whicher 109 North Illinois Chicago, Dearborn Street 60602 t (312) 641-5570 i l .'

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FERVICE LIST lierbert Grossman, Esq. '

Geor:,c & Anna Grabowski Administrative Judge 7413 N. 136th Lane Atomic Safety & Licensing Cedar Lake, Indiana 46303 Board Panel U.S. Nucl' ear Regulatory Dr. George Sch91tz Ccmmission 807 E. Coolspring Roid t

Washington, D.C. 20555 Michigan City, Indiana 46360 Dr. Richard F. Cole Richaril L. Robbins, Esq.

Adrinistrative Judge Lake Michi:;an Fedar_ tion

/.r.emic Safety & Licensin;, 53 W. Jackson Boulevard

' Eoard Panel Ch i en:,o , Miinoic 60G04 U.S. : uclear Regulat ory Ct.mmincion

'kshington, D.C. 20555 Mr. Mike Olszanski Mr. Clif ford Mezo

r. Glenn O. Bright Local 1010 - United Steelworkers Adr.inistrative Judge of Accrica Ator,ie Safety & Licensing 3703 Euclid Avenue

' T ird Panel Enst Chicago, Indiana 46312 L' . S . :?uclear Regulatory rt:rtseien Steven C. Goldberg, Esq.

' 'a r. h i .n tr,n , D . C .

?0555 oft' ice of the Executive 1.eeal Director lMurice Axelrad, Erq. U.S. .':uelcar Regulator. CorristL Uaahinr, ton, D.C. 2n555 hthl een 11. Shea, Esq.

L..cr. stein Newman, Reis.

/.xelrad and Toll Anne Rapkin, Asst. Attorney Ge:'e

'(25 Connecticut Ave., N.U John Van Vranken, Environmenta'

'O.a hi ng to n , D.C.

20036 Control Division 133 U. Randolph - Suite 2315 Chicago, Illinois 60601 L.'i lliaT. 11. Eichhorn, Esq.

Eichhorn, Cichhorn & Link -

Docheting & Service Section 5243 Mchman Avenue Of fice of the Secretary H e rn.on d , Indiann 46320 U.S. ;;uclear Regulator'y Con ,isni Diane B. Cohn, Esq. Wa shin;; ton , D.C. 20555

'Tilliam P. Schultz, 1:.q. Stephen Laudig. Esq.

Suite 700 2000 ? Street, N.W. 21010 Cumberland Road Weishington, D.C. Noblesville, Indiana 46060 20036 Atotic Safety & Licensing Edward A. Fires tone, Esq.

Loard Panel General Electric Company U.S. ';uclear Regulatory Commission 175 Curtner Ave. M/C 823 San Jose, California 95125 L.'c shi ng to n , D.C. 20555 George L. Edgar i

Atoci: Safety and Licent,ing Kevin P. Gallen Appeal Board Panel Morgan, Lewis & Bockius U.S. ::uclear Regulatory Commisnion Suite 700 i Washington, D.C. 20555 1800 M St., N.W.

Washington, D.C. 20036

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