ML19345B005
| ML19345B005 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 11/20/1980 |
| From: | Grossman H Atomic Safety and Licensing Board Panel |
| To: | IZAAK WALTON LEAGUE OF AMERICA, PORTER COUNTY CHAPTER, NORTHERN INDIANA PUBLIC SERVICE CO. |
| References | |
| ISSUANCES-CPA, NUDOCS 8011250643 | |
| Download: ML19345B005 (7) | |
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UNITED STATES OF AMERICA i
y, NUCLEAR REGULATORY COMMISSION
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Atomic Safety and Licensing Board
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Herbert Grossman, Esquire, Chairman Dv/
Glenn O. Bright, Member s
Dr. Richard F. Cole, Member In the Matter of
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NORTHERN INDIANA PUBLIC SERVICE )
COMPANY
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Docket No. 50-367 CPA
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(Bailly Generating Station,
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(Construction Permit Extension)
Nuclear 1)
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ORDER REGARDING DISCOVERY We have before us PCCI's motions to compel NIPSCO to produce three main categories of documents: (1) contracts between NIPSCO and the General Electric Company under which G.E. is to supply the nuclear steam supply system and turbine generator for 3ailly; (2) documents in categories 9,10 and 11 of PCCI's September 18, 1980 request for production relating to NIPSCO's competence to construct the Bailly plant, its financial capability, and its ability to comply with N.R.C. requirements, respectively; and (3) documents that are in the possession, custody or control of "NIPSC0", as defined to include its " consultants, contractprs or subcontracturs", and documents which tend to " prove or dis-prove" certain matters.
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l a (1) G.E. Contracts In response to PCCI's Request No. 6 in its First Request for Documents for all contracts between NIPSCO and its contractors, subcontractors or suppliers, NIPSCO agreed to make available for inspection all of the contracts except for those with respect to G.E.'s supplying the nuclear steam supply system and turbine generator.
With regard to the latter documents, G.E. appeared specially to file a motion for protective order raising issues con-cerning relevancy and confidentiality.
NIPSCO apparently supports G.E.'s objections to the production of those documents, at least without a suitable protective order, but has not filed its own response to the motion to produce.
It has merely requested an extension for filing until such tbne as the Board has ruled on the G.E. motion.
The Board would like to have NIPSCO's response before deciding on PCCI's request.
NIPSCO is ordered to file ics com-plete response, including all grounds relied upon on behalf of itself and G.E.,
on or before December 4, 1980.
All further dis-covery matters pertaining to this disputed item, including the proposed taking of deposition of Eugene W. O'Rorke, will be held in abeyance until further order of the Board.
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(2) Requests for Production, Nos. 9, 10 and 11, Relating to NIPSOC's Competence, Financial Capability and Ability to Comply With l-N.R.C. Regu1~ations PCCI's Second Request to NIPSCO to Produce Documents, dated September 18, 1980, requested documents in catagories 9, 10 and 11 which relate to the competence, study, preparation, technical knowledge, design ability, financial capability, and ability to comoly a.
with NRC regulations, of NIPSCO, its contractors and subcontractors.
NIPSCO obj ects (Mocion for Proc. Order, Oct. 23, 1980) to producing documents in these catagories on the grounds that the Licensing Board specifically denied contentions in its August 7, 1980 Order Following Special Prehearing Conference relating to NIPSCO's general financial capability and general technical com-petence, and did not admit any contentions relaefng to NIPSCO's ability to comply with N.R.C. requirements.
With impeccable logic, PCCI (Motion to Compel, dated November 6,'1980) points out that the focus in discovery should
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be on the admitted contentions to decermine whether the discovery requests are reasonably calculated to lead to the discovery of admissible evidence, and that discovery requests need not be as i
narrowly drawn as contentions.
The bas".s of PCCI's response is that documents relating to NIPSCO's general competence, financial capability and ability to comply with N.R.C. requirements might l
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4-include information tending to prove that these areas of possible deficiency resulted in some of the delay in construction, which l
is the subject matter of the admitted contentions on which PCCI relies.
On the other hand, to the extent that the recuested l
documents do not relate to the delav in construction, the Board does not see how they could be relevant to the matters in con-
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troversy or lead to the discovery of admissible evidence.
Con-secuently, while PCCI's requests cannot be ruled out entirely, they are unnecessarily broad to accomplish their purpose.
Accordingly, we grant PCCI's motion for an order com-pelling the production of the documents, but limit the documents to be oroduced under the three requests to those which relate to the delay in construction.
Stated inversely, NIPSCO need not produce any documents under those three requests where the putative deficiency in competence, technical knowledge, financial capabi-lity, ability to comply with N.R.C. regulations, etc. did not, or is not expected to, contribute to the delay in the completion of the construction.
(3) The Definition of "NIPSC0", and Documents Which " Tend to Prove or Disorove" Stated Assertions (a) In its Requests for Production of Documents, PCCI requests documents that are in the possession, custody or control r
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of "NIPSC0", as defined to include its " consultants, contractors or subcontractors", in addition to other' stated catagories.
NIPSCO objected to producing documents under the control of companies over which NIPSCO had no control and which might require NIPSCO's personnel to travel great distances.
Motion for Prot. Order, Sept. 26, 1980.
In PCCI's October 14, 1980 Motion to Compel Production, intervenors apparently (although they do not so concede) tiarrowed the request to those documents within the actual or constructiva possession, custody or control of NIPSCO, itself,
t In its October 23, 1980 response (p. 1, fn), NIPSCO dropped its obj ection in light of PCCI's " clarification".
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indicated its understanding that "PCCI has not requested documents in the possession, custody, or control of such consultants, con-tractors and subcontractors".
In light of this apparent agreement becween parties, the Board would not intrude upon this discovery matter were it not for PCCI's further casment in its November 6, 1980 filing i
1 (p. 4, fn) that NIPSCO has misstated PCCI's position regarding the definition of NIPSCO so as to exclude from production all of the documente in the possession, custody or centrol of NIPSCO's con-sultants, contractors or subcontractors.
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. It appears to us that the parties are in agreement as to what must be produced although PCCI may not recognize it.
NIPSCO has agreed to produce those documents over which it has actual or constructive possession, custody or control, notwithstanding that a consultant, contractor or subcontractor may also have one or more of those attributes.
As we understand PCCI's requests, and so order, NIPSCO need not produce documents over which it does not have possession, custody or control, merely because a consultant.
contractor or subcontractor does.
(b) NIPSCO objected to PCCI's requests for documents which " tend to prove or disprove" certain assertions.
However, in its October 29, l?SO Response to Motion to Produce, pp. 1-2, NIPSCO has agreed to produce documents "related to" those assertions.
PCCI continues to demand (Answer to Motion, Nov. 6, 1980, p. 4) that NIPSCO describe the requested documents as " tending to prove or disprove" the stated propositions.
On the assumption that NIPSCO will include in the docu-ments "related to" the stated assertions all of the documents which its representatives believe tend to prove or disprove those asser-tions, we sustain NIPSCO's objections to having to characterize the documents it produces as tending to " prove or disprove" any assertion.
It is the information contained in those documents, which NIPSCO has agreed to produce, that may be admissible
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I t i evidence or lead to admissible evidence -- not the conclusions of
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NIPSCO's attorne rs as to whether the documents t.end to prove or disprove the proposition stated.
The mental impressions, conclu-sions, opinions and legal theories of NIPSCO's attorneys, whether or not privileged in all circumstances, are not discoverable if, as in this circumstance, they are not admissible evidence and can-i not lead to the discovery of admissible evidence.
BY ORDER OF THE BOARD FOR THE ATOMIC SAFETY AND 3
LICENSING BOARD i
i lW Herbert Grossman, Esquire, Chairman Dated at Bethesda, Maryland this 20th day of November, 1980.
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