ML19347F502
| ML19347F502 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 05/18/1981 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8105190458 | |
| Download: ML19347F502 (5) | |
Text
5/18/81
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.Ui4ITED STATES OF AMERICA
,M fiUCLEAR REGULATORY COMMISSI0ft y.
g BEFORE THE AT0!11C SAFETY Af1D LICENSING BOARD 4;
w; In the Matter of
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[10RTHER!i Ii4 DIANA PUBLIC SERVICE
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Docket No. 50-367 C0ftPA!4Y
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(Construction Permit Ex. tension)
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(Bailly Generating Station,
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Nuclear-1)
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IIRC STAFF RESP 0ilSE TO PORTER COUNTY CHAPTER IllTERVENOR'S MOTIO!4 TO COMPEL PRODUCTION OF DOCUMENTS BY NIPSCO Il4TRODUCTION On May 11, 1981, the Porter County Chapter Intervenors (PCCI) filed a motion to compel production of six enumerated categories of documents by the Applicant pursuant to PCCI's third request for the production of documents. Ordinarily, the Staff will not express an opinion on discovery matters to which it is not a party.
However, in at least one material respect, the motion misstates the Co:Tiission's rules governing the scope of permitted discovery and their relationship to this proceeding in a manner likely to recur in later discovery directed to Staff.
Specifically, PCCI seeks the production of three categories of documents (denominated paragraphs 2, 8, and 16) regarding the Applicant's projections of the need for the power to be generated by the Bailly Plant.
The Applicant objected to the production of these documents on the grounds that they were not relevant to any contention admitted in the proceeding. The present motion claims that "neither the scope of this proceeding nor discovery is limited to contentions admitted.
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9 t' The only proper bound is NIPSCO's claim of good cause.
If NIPSCO does not need the power from Bailly that is certainly relevant to the ' good cause' inquiry." Hotion at 2.
Tne Staff disagrees. The issue of "need for power" is not a contention in controversy in the proceeding (or otherwise relevant to,the scope of this construction permit extension request) and, hence, is not a permissible area for discovery pursuant to 10 C.F.R. 92.740.
DISCUSSION Under the Commission's rale of practice, a party is not entitled to discovery regarding natters unrelated to the contentions admitted by the Licensing Board in this proceeding. As the Appeal Board has succintly stated:
"All discovery request must be relevent to the subject matter of the proceeding; that is, they may relate only to those natters in controversy which have been identified by the [ Licensing Board following a special] prehearing conference.
10 C.F.R. 92.740(b)(1)." Pennsylvania Power and Light Co. (Susquehanna Stean Electric Station, Units 1 and 2),
ALAB-613, 12 HRC 314, 322 (1980).E The contentions admitted as matters is controversy in this proceeding were identified in the Licensing Board's special prehearing conference order, as supplemented. See " Order Following Special Prehearing Conference", dated August 7,1980, and
" Order Supplementing Order Following Special Prehearing Conference" (Supplenental Order), dated August 25, 1980. The Board explicitly rejected a proposed contention of another intervenor which sought to raise the "need for power" issue.
Supplemental Order at 4-5.
That ruling was N ee also Allied General 14uclear Service (Barnwell Station) LBP-77-13, 5 5
NRC 489, 491-92 n.1 (1977) (discovery rules applicable to all types of proceedings except rulemaking).
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, s correct. This issue is wholly unrelated to the central issue of whether there is good cause for the delay in completion of construction pursuant to 10 C.F.R. 950.55(b) as the Staff has explained in numerous pleadings discussing the scope of a construction permit extension proceeding.
Relitigation of the "need for power" determination reached at the construction permit stage is not a valid subject for a construction pernit extension proceeding. The more expansive position on the scope of such a proceeding urged by PCCI throughout the proceeding and again in the instant motion has been effectively rejected by the Appeal Board in this case. ALAB-619, 12 fiRC 558 (1980).
_C0f4CLUSI0ft In light of the above, the Staff believes that the present motion to compel the production of documents requested in paragraphs 2, 8, and 16 of PCCI's third request for the production of docunents should be denied.
Tne Staff expresses no opinion on the balance of the documents requested in the motion.
Respectfully submitted,
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Steven C. Goldberg Counsel for fiRC Staff Dated at Betnesh, Maryland I
this 19th day of May, 1981.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Y
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NORTHERN INDIANA PUBLIC SERVICE
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Docket No. 50-367 COMPANY
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(Construction Permit Extension)
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(Bailly Generating Station,
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Nuclear-1
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO PORTER COUNTY CHAPTER INTERVEN0R'S MOTION TO COMPEL. PRODUCT DN.0F DOCUMENTS BY NIPSCO in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as. indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 18th day of May, 1981.
Herbert Grossman, Esq., Chairman Robert L. Graham, Esq.
Atomic Safety and Licensing Board One IBM Plaza Panel 44th Floor U.S. Nuclear Regulatory Commission Chicago, Illinois 60611 Washington, D.C.
20555 George and Anna Grabowski Robert L. Holton 7413 W.136th Lane School of Oceanography Cedar Lake, Indiana 46303 Oregon State University Corvallis, Oregon 97331 John Van Vranken, Esq., Chief Northern Region J. Venn Leeds Environmental Control Division 10807 Atwell 188 West Randolph Street Houston, Texas 77096 Chicago, Illinois 60001 Kathleen H. Shea, Esq.
Clifford Mezo, Acting President Lowenstein, Newman, Reis, Axelrad Local 1010 and Toli United Steelworkers of America 1025 Connecticut Avenue, N.W.
3703 Euclid Avenue Washington, D.C.
20036 East Chicago, Indiana 46312 Robert J. Vollen, Esq.
WiD iam H. Eichhorn, Esq.
c/o BPI Eichhorn, Morrow & Eichhorn 109 North Dearborn Street 5243 Hohman Avenue Chicago, Illinois 60602 Haninond, Indiana 46320 Edward W. Osann, Jr., Esq.
Atomic Safety and Licensing Suite 4600 Board Panel One IBM Plaza U.S. Nuclear Regulatory Commission Chicago, Illinois 60611 Washington, D.C.
20555 i
2-4' Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
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Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Comission Washington, D.C.
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Steven C. Goldberg Counsel for NRC Staff i
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