ML19350D016
| ML19350D016 | |
| Person / Time | |
|---|---|
| Site: | Bailly, Yellow Creek |
| Issue date: | 04/09/1981 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8104130088 | |
| Download: ML19350D016 (5) | |
Text
04/09/81 n
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UNITED STATES OF AT1 ERICA i
APRj0 I981w $
NUCLEAR REGULATORY C0"ri!SS10rt E-L '%k,,gg BEFORE THE AT0lilC SAFETY AND LICENSING BOARD In the itatter of
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NORTHERN INDIANA PU3LIC SERVICE
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Docket No. 50-367
- C0t1PANY
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(Construction Penait Extension)
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(Bailly Generating Station,
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Nuclea r-1)
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NRC STAFF RESPON'.E TO PORTER COUNTY CHAPTER INTERVENORS' t10 TION FOR ORDER UNDER 10 C.F.R. 62.740(e)(3)
INTRODUCTION On September 18, 1980, the Porter County Chapter Intervenors (PCCI) filed a request for the production of NRC Staff documents in the captioned proceeding. This request was fulfilled in successive responses, dated October 7, November 7, and November 20, 1980.
The Staff response to the PCCI document request is thereby complete.
The Staff has no additional documents discoverable thereunder.
Nonetheless, on fiarch 20, 1981, PCCI filed a motion requesting the Board to enter an order pur-suant to.'0 C.F.R. 62.740(e)(3) imposing a continuing duty upon the Staff to supplement its responses to the September 18, 1980 PCCI docu-ment request.1/ There is no legal authority for the entry of such 1/ This motion sought a similar ruling relative to discovery upon the Applicant.
This aspect of the motion does not involve the Staff and it expresses no opinion thereon.
810 4.130 ofir g
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an order under the circumstances of this case and, accordingly, the Staff opposes the present motion.
DISCUSS 10fl The present notion is purportedly grounded upon 10 C.F.R. 92.740(e).
However, pursuant to that regulation, a party is under no duty to supple-ment a discovery response that was complete when made to include after acquired infomation with two exceptions, neither of which obtain here.
The first exception involves a response regarding the identity of persons having knowledge of discoverable matters or the identity of prospective witnesses.
The second exception involves the acquisition of infomation which knowingly renders the initial discovery response incorrect when made or no longer true and unde, circunstances such that a failure to amend the response is in substance a knowing concealment.
10 C.F.R. 92.740(e)(2). There is no obligation to supplement a response to a request for the production of documents.E Even assuming the second exception is somehow relevant to the present matter, as noted above, the Staff response to the document request in question was complete when made and remains so.
The present request for relief is thus impermissible in that it seeks to impose a requirement upon the Staff which exceeds the require-ment of the Commission's regulations.
Moreover, even assuming there were some requirement to supplement a response to a document request, the present motion would still be infinn because it improperly presupposes
-2/ This^ comports with the discovery requirements of federal practice.
See Federal Rules of Civil Procedure, Rule 26(e).
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! that such requirement would not be met.
The Staff intends to comply fully with the Commission's rules and regulations regarding discovery in this proceeding.
Intervenors seek to factually justify their motion on the grounds that the " operative facts are in a constant state of flux" and infonaation provided on discovery become impliedly dated.
There is no basis in the record to. substantiate this claim.
The Applicant's construction permit extension application, as amended, is already a matter of record. Neither the Staff nor PCCI have adduced any eviden-tiary facts on the record relative to the subject application.
Intervenors, without explanation, refer to their November 13, 1980 motion to suspend the proceeding in apparent support of this proposition.
That motion was denied by Board Memorandum and Order, dated April 1,1981.
CONCLUSION As demonstrated above, there is no basis in law or fact for the entry of the requested order and, accordingly., the Staff opposes the present motion.
Respectfully submitted,
..bDu %A Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda, Maryland this 9th day of April,1981.
UNITED STATES OF AMERICA 4
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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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 INTERVENORS' MOTION FOR ORDER UNDER 10 C.F.R. 52.740(e)(3) in the above-captioned proceeding have been served on the following by deposit in the United States mail, firs t class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this~
9th day of April, 1981.
Herbert Grossman, Esq., Chairman Robert L. Graham, Esq.
Atomic Safety and Licensing Board One IBM Plaza Panel 44th Floor U.S. Nuclear Regulatory Comission 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 60601 Kathleen H. Shea, Esq.
Clifford Mezo, Acting President Lowenstein, Newman, Reis, Axelrad Local 1010 and Toll United Steelworkers of America 1025 Connecticut Avenue, N.W.
3703 Euclid Avenue Washington, D.C.
20036 East Chicago, Indiana 46312 Robert J. Vollen, Esq.
William H. Eichhorn, Esq.
c/o BPI Eichhorn, Morrow & Eichhorn 109 North Dearborn Street 5243 Hohman Avenue Chicago, Illinois 60602 Hammond, 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
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i Atomic Safety and Licensing ~ Appeal.
Board Panel i-U.S. Nuclear Regulatory Comission l
Washington, D.C.
20555 *.
Docketing and Service Section j
' Office of the Secretary U.S. Nuclear Regulatory Comission 4
Washington, D.C.
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Steven C..Goldberg Counsel for NRC Staff f
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