ML19345B292

Response in Opposition to Porter County Chapter 801106 Third Request for Order Compelling Util to Produce Documents Requested in Paragraphs 9,10 & 11 of Second Request for Production.Info Irrelevant.Certificate of Svc Encl

ML19345B292
Person / Time
Site:	Bailly
Issue date:	11/21/1980
From:	Eichhorn W EICHHORN, EICHHORN & LINK, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8011280030
Download: ML19345B292 (9)

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e7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g &

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4 4 l

In the Matter of ) Docket No. 50-367

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

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< , =t -_ . ,9; NORTHERN INDIANA PUBLIC SERVICE COMPANY'S V ' 2 -E RESPONSE TO THIRD MOTION TO COMPEL S - M.i f,'

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.1 By J.stion dated November 6., 1980, Porter County Chapter' Intervenors (PCCI) requested issuance of an order compelling Northern Indiana Public Service Company (NIPSCO) to produce documents requested in paragraphs 9, 10, and 11 of PCCI's Second Request for Production of Documents, relating to technical competence, financial capability, and ability to comply with NRC regulations. NIPSCO hereby responds to that motion. ,

PCCI characterizes NIPSCO's first general objection to paragraphs 9, 10, and 11 as one of " relevancy" and argues that 10 C.F.R. S 2. 740 (b) (1) permits generally discovery of any information " reasonably calculated to lead to the discovery of admissible evidence," apparently without regard to subject matter.

Contrary to PCCI's repeated assertions, proper discovery must be relevant to the issues. The discovery regulations clearly pro- I vide that " (p] arties may obtain discovery regarding any matter psd 8011280 Ogo G J o( -

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. . . which is relevant to the subject matter involved in the proceeding . . . ." (10 C.F.R. S 2.740 (b) (1) . ) PCCI's often repeated statement the.2 the only limitation to the scope of discovery is that the request appear " reasonably calculated to lead to the discovery c' admissible evidence" is simply incorrect.

That qualificatior. applies only to the objection that the informa-tion sought will not be admissible at the hearing. It does not render meir.ingless the requirement that matters properly subject to discovery be " relevant to the subject matter involved in the proceeding" or that discovery shall relate "only to those matters in controversy which have been identified . . . in the prehearing order . . . .

(10 C.F.R. S 2.740 (b) (1) . )

i Under NRC regulations, a party may not discover matter outside the scope of the contentions admitted in the proceeding.

The documents requested in paragraphs 9, 10, and 11 exceed the scope of contentions admitted pursuant to the Order of the Licensing Board dated August 7, 1980, as specifically indicated below.

PCCI's attitude seems to be that NIPSCO should rephrase and reinterpret these paragraphs to conform to the appropriate

, standard of discoverable evidence. Although NIPSCO has attempted to reconcile the requests with applicable legal principles and to respond as completely as possible, the burden of fashioning appropriate requests clearly falls upon the requester. NIPSCO cannot be required to rewrite PCCI's overbroad and vague requests.

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j NIPSCO's second general objection relates to requests for documents that " tend to prove or disprove" tr ' assertions in paragraphs 9, 10, and 11. Such requests call for legal conclusions concerning the probative value of particular documents on the various assertions in paragraphs 9, 10, and 11. Furthermore, such requests are extremely vague and place an undue burden on NIPSCO. In an attempt to meet the discovery requcet while avoiding legal judgments as to probative value, NIPSCO has produced documents that relate to and concern the specified assertions.

NIPSCO's first specific objection relates to paragraph 9 of the Second Request for Production of Documents. That paragraph seeks information vagarding the technical competence of NIPSCO, its contractors, and subcontractors. The Order of the Licensing Board did admit PCCI's contention 7, regarding technical compe-tence, but strictly limited it to those questions of technical competence " manifested in the delay in construction." (Order at 60.) The Board specifically denied a contention which sought to bring into issue the technical competence of NIPSCO and its  !

i contractors. (Id,) The discovery request does not seek informa-tion relating to lack of technical ability " manifested in the delay"; instead, it seeks information relating to the denied contention. As written, paragraph 9 grossly exceeds the permissible scope of discovery on this issue. In fact, PCCI's Third Motion to Compel appears to acknowledge that the paragraph 9 request is a fishing expedition, " phrased to lead to the discovery of

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admissible evidence." (Motion at 3.) NIPSCO has previously alerted the Board to the potential for such attempts to boot-strap issues on the basis of overdrawn discovery requests not in accord with the spirit or letter of the admitted contentions.

(Sea NIPSCO's Objections to " Order Following Special Prehearirq Conference" dated August 18, 1980.) Therefore, NIPSCO reiterates its previous objections to paragraph 9 and its motion for pro-tective order. (See NIPSCO's Response and Objections to PCCI's Cecond Request for Production of Documents and Motion for Pro-

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tective Order dated October 23, 1980.)-

Paragraph 10 seeks information regarding NIPSCO's financial capability to complete construction of the Bailly plant. It is PCCI's position that this request is legitimate based upon admitted contentions 1 and 3. These contentions concern generally the reasons for the delay in construction, whether those reasons constitute good caase and the reasonableness of the extension period. (Order at 52-53.) This general grant of admissibility,

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• / In its objections to Order Following Special Prehearing Conference, N1PbCO requested clarification of PCCI's conten-tion 7 dealing with technical competence and a statement limiting discovery and evidence on this issue to the conduct of the permittee, its contractors and subcontraJtors which ,

allegedly caused the delay. (NIPSCO's Objections to " Order Following Special Prehearing Conference", p. 9, dated l August 18, 1980.) The Board determined that further clari-fication of this issue was unnecessary and stated "Without endorsing NIPSCO's wording, we see nothing in its statements regarding its understanding of the Board's Order which shakes our confidence in the Order's clarity. . . . Any disputes that may arise during the course of specific discovery will be resolved when appropriate." (Order Denying Objections to Orders Following Special Prehearing Conference, p. 3, dated October 2, 1980.)

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however, does not justify the admission of documents regarding financial capability in light of the Board's more specific pro-scriptions. In denying the admission of PCCI's proposed contention 6, the Board noted that the proposed contention was " unnecessary" and "duplicative" of contentions 1 and 3. The Board also stated:

To the extent that (the proposed contention) goes further and attempts to litigate . . . fine.ncial capability . . . the contention is not adr.iissible.

(Order at 59.) Clearly, the Board specifically excluded dis-covery and litigation on issues of financial capability.

Paragraph 11 seeks information regarding NIPSCO's ability to comply with NRC regulations and requirements which have come into effect since the issuance of the Bailly construction permit.

PCCI suggests that authority to litigate the reasonableness of the extension period permits inquiry into NIPSCO's ability to comply with NRC requirements. This is plainly incorrect. PCCI's request concerning NIPSCO's compliance ability clearly goes to the issue of technical competence which has been restricted by the Board's order. Any document dealing with ability, i.e.,

competence to comply with NRC requirements, clearly implicates NIPSCO's technical competence to construct the Bailly facility.

It is difficult to imagine a discovery request more oriented toward the production of technical competence information. Therefore, NIPSCO reiterates its previous objection to paragraph 11 and its

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motion for protective order.

(See NIPSCO's Response and Objec-tions to PCCI's Second Request for Production of Documents and

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Motion for Protective Order dated October 23, 1980. )~

CONCLUSION For the foregoing reasons, PCCI's third motion for an order compelling further production of documents by NIPSCO should be denied.

NIPSCO should Je relieved of any obligation of com-

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over the definition of "NIPSCO"There has been considerable confu tion should include contractors. consultants, contractors, and sub-and whether that de NIPSCO wishes to clarify its position. PCCI session, custodyhas been afforded access to all documents within the p Service Company,,its agents, employees, representativesor contr and subsidiaries, without regard to whether those docu- ,

of its consultants, contractors , or subcontractors.ments However, w

we have not reviewed the records of NIPSCO's consultants ,

contractors and subcontractors for the reasons stated in NIPSCO's Response and Objections to PCCI's First Request for Production of Documents dated September 26, 1980.

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plying with paragraphs 9, 10, and 11 of PCCI's Second Request for Production of Documents.

Respectfully submitted, EICHHORN, EICHHORN & LINK 5243 Hohman Avenue Hammond, Indiana 46320 By:

William H. c h'h o r n Ei~

Attorneys for Northern Indiana Public Service Company LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036

9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket No. 50-167

)

NORTHERN INDIANA PUBLIC ) (Construction Permit SERVICE COMPANY ,

) Extension)

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(Bailly Generating Station, ) November 21, 1980 Nuclear-1) )

CERTIFICATE OF SERVICE I hereby certify that copies of Northern Indiana Public Service Company's Response to Third Motion to Compel dated November 21, 1980, were served on the following by deposit in the United States mail, postage prepaid, on this 21st day of November,

. 1980:

Herbert Grossman, Esquire U.S. Nuclear Regulatory Commission Washingtoa, C.C. 20555 Glenn O. Bright U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard F. Cole U.S. Nuclear Regulatory Comminaion Washington, D.C. 20555 Docketing and Service Section Office of the Secretary 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 Steven Goldberg, Esquire Office of the Executive Legal Director )

U.S. Nuclear Regulatory Commission j Washing"on, D.C. 20555  :

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Susan Sekuler, Esquire Environmental Control Division ,

188 West Randolph Street Suite 2315 Chicago, Illinois 60601 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 Robert L. Graham, Esquire One IBM Plaza 44th Floor Chicago, Illinois 60611 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana 46312 Diane B. Cohn, Esquire William B. Schultz, Esquire Suite 700 2000 P Street, NW Washington, D.C. 20036 Richard L. Robbins, Esquire 53 West Jackson Boulevard Chicago, Illinois 60604 Mr. George Grabowski Ms. Anna Grabowski 7413 W. 136th Lane Cedar Lake, Indiana 46303 Dr. George Schultz 807 East Coolspring Michigan City, Indiana 46360

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MILLIAM H. EICHHORN Eichhorn, Eichhorn & Link 5243 Hohman Avenue Hammond, Indiana 46320 Attorneys for Northern Indiana Public Service Company

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