ML20004C548

Response Opposing Porter County Chapter Intervenors (Pcci) 810511 Motion to Compel Production of Documents.Pcci Misinterprets Scope & Use of Discovery Procedures

ML20004C548
Person / Time
Site:	Bailly
Issue date:	05/26/1981
From:	Eichhorn W EICHHORN, EICHHORN & LINK, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20004C549	List: ML20004C548 ML20004C550 ML20004C551 ML20004C552 ML20004C553 ML20004C555 ML20004C558 ML20004C563
References
NUDOCS 8106040256
Download: ML20004C548 (11)

Text

- _ _ _ _ _ - _ _ - - - _ _ _ _ _ _ - _ _ _ _ - _ - _ _ _ _ _ ..

h ~J 4 4

Oceketd .,

~

l( M. ~'

l UNITED STATES OF AMERICA i, "iAY 2 91981 P 1

-,. NUCLEAR REGULATORY COMMISION

- Q\ l Officeof the'm, i, <

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD cgeg &ses, l

% e l In the Matter of ) Docket No. 50-367

)

NORTHERN INDIANA PUBLIC SERVICE ) (Construct. ion Permit,.

COMPANY ) Extension) ,.-y}~lf.g/. ,-i 1

) '

May 26, 1981 (Bailly Generating Station, ) f x:' fs.; j T j',./ p ? ,k N Nuclear-1) ) fin J. % Q C,

$ [ " 0 3 198 1 8 ecd.

NORTHERN INDIANA PUBLIC SERVICE COMPANY'S - *', .

RESPONSE TO PCCI MOTION TO COMPEL PRODUCTION

'W OF DOCUMENTS DATED MAY 11, 1981 ' _-

43.:_. Y Porter County Chapter Intervenors (PCCI) filed their

" Third Request to NIPSCO for Production of Documents" on March 20, 1981. Northern Indiana Public Service Company (NIPSCO) responded on April 24, 1981, objecting to certain requests and stating that it was withholding some documents from production. On May 11 PCCI filed a Motion to Compel Production (" Motion") to which NIPSCO now responds.

" Scope of Discovery / Scope of the Proceeding" PCCI has again returned to its recurrent themes: "The scope of this proceeding is whether NIPSCO can show the

' good cause' required by Section 185 of the Atomic Energy Act" (Motion, p. 2) and the scope of PCCI's participation is as broad; more particularly, neither the proceeding nor intervenors' participation is limited by the contentions which have been admitted by the Board. This theory has hb g03 P1000N k \

h u euw

.- a

',,, been rejected by the Board in its Order Regarding Discovery (Nov.-20, 1980)'; it must again be rejected.1/

PCCI offers'no substantive argument in support of the theory and its application to discovery. PCCI appears to

-rely upon 10 C.F.R. S 2.740 but, in fact, that regulation precludes the PCCI-theory. PCCI correctly notes that under the regulation the information sought in discovery need be " reasonably calculated to lead to the discovery of ad-missible evidence" (10 C.F.R. S 2.740 (b) (1)) but it ignores the fact that, under Section 2.740, discovery "shall relate only to those matters in controversy which have been identi-fled by . . . the presiding officer in the prehearing order entered at the conclusion of" the prehearing conference.

(ld.) That is the limiting context of the other language

'i n Section 2.740 (b) which PCCI quotes: " Parties may obtain discovery regarding any matter . . . which is relevant to the subject matter involved in the proceeding . . . ." (Emphasis added.)

1/ This theory in effect attempts to revive the argument that intervenors cannot be required to state contentions and have their participation limited to those contentions.

This view was long since and unequivocally rejected.

(Northern States Power Co. (Prairie Island Nuclear Generating Plant), CLI-73-12, 6 AEC 241 (1973), aff'd, BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974).)

t l

l

3 4 _

,y,, PCCI:mEy intend to-argue _that1the narrower language limits only proceedings _ involving. applications for construc-

. tion permits ~and operating licenses.and-that it does not applyLto this: permit extension proceeding. That argument may arine'from a literal'and' narrow ';eading of the; provision: '

In a' proceeding on an application for

~

a construction permit or an operating license for a production or utiliza-tion facility, discovery =shall'.begin only after the prehearing conference

.provided for in S 2.751a and shall relate only.to those matters in controversy which have been identified by the'Com-mission'or the presiding officer'in.

the prehearing order entered at the conclusion of that prehearing conference. .

~

(l0 C.F.R. S 2.740 (b) (1) .) That argument is unpersuasive for a number of reasons. The Commiscion's Rules of Practice I (which include- 10 C.F.R. S 2.740) govern  !

the conduct of all proceedings, other ,

than export and import licensing pro-ceedings described'in Part 110, under  !

s the Atomic Energy Act of 1954, as amended, 1 and the Energy Reorganization Act of  !

1974, for (a) granting, suspending, i revoking, amending, or taking other '

action with. respect to any license, construction permit, or application >

to transfer a l'icense . . . .

L (10 C.F.R. 52.1.) Furthermore, Section 2.740 is within i Subpart G of Part 2, " Rules of General Applicability," )

and the regulations state:

.- . . . . . - - - - - . . - . - - . . - w

i e

$*~ ~~ The general rules in this subpart govern procedure in all adiudications e initiated by the issuance of an order

.to show cause, an order-pursuant to S 2.205(e), a notice of hearing, a notice of proposed action issued pursuant to S 2.105, or a notice issued pursuant to S 2.102 (d) (3) .

(10 C.F.R. S 2.700 (emphasis added) .) The notice of oppor-tunity for a hearing which initiated this proceeding was issued pursuant to 10 C.F.R. S2.105. (44 Fed. Reg. 69,061

' ('19 7 9 ) . )

Finally, there is simply no logical reason for concluding that the scope of permissible discovery should be broader ,

in one type of NRC procceding than another. It is, we submit, nonsensical to argue that an intervenor in, for example, an operating-license proceeding, is limited to discovery on his admitted contentions while an intervenor in a con-struction permit extension proceeding has freedom to Jiscover on any and all topics within some broader " scope of the proceeding" and regardless of the issues which he was ad-mitted to litigate. The ultimate effect of PCCI's position would be more serious than nonsensical--it would defeat a substantial part of the very purpose of having contentions. l Discovery under NRC regulations is not the unfettered, free-form activity which intervenors envision.

All discovery raquests must be relevant to the subject matter of the proceeding; that is, they may " relate only to those matters la controversy which have been identified by the [ Licensing Board following a special] prehearing conference."

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

l

a .

7. . . (Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station), ALAB-613, 12.NRC 317, 322 (1980)y Allied-General i Nuclear Services. (Barnwell Fuel Receiving and Storage Station), LBP-77-13, 5 NRC 489 (1977).)

NRC discovery is patterned on Rule 26 of the Federal Rules of Civil Procedure and cases interpreting that rule are useful in assessing the scope of discovery. (commonwealth Edison Co. (Zion Station), ALAB-196, 7 AEC 457, 460 (1974);

Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2),

' LBP-75-30, 1 NRC 579,581-83 (1975)<) Although there is no " contention" requirement per se in the Federal Rules, the cases interpreting Rule 26 recognize that there must, of necessity, be practical limitations on the scope of legiti-mate discovery. (Hickman v. Taylor, 329 U.S. 495 (19471.)

Liberal discovery is contemplated under Rulo 26; however,

" practical considerations dictate that the parties should not be permitted to roam in shadow zones of relevancy . . . ."

(Broadway & Ninety-Sixth Street Realty Co. v. Loew's Inc.,

21 F.R.D. 347, 352 (S.D. N.Y. 1958); Surety Association of America v. Republic Insurance Co., 388 F.2d 412 (2d Cir.

1967).)

Similarly, it has been held that "[f]ull cnd complete discovery should be practiced and allowed, but its processes must be kept within workable bounds on a proper and logical .

basis for the determination of the relevancy of that which is sought to be discovered." (Jones v. Metzger Dairies ,_

l

-l l

5 1 i o o 4 + 4-4 4 ,

l

Inc., 334 F.2d 919, 925 (5thf cir.1964), cert, denied, 379 UE**

o U.S. 965 (1965).)1/

We urge the Board to reject the arguments made by PCCI concerning the relevance of document' requests under Paragraph 2, 8, 16, 14, 15, and 17.

Paragraphs 2, 8'and 16. NIPSCO' produced the vast majority l i

i of documents requested by these requests even.though the requested documents are beyond the scope of permissible P

' discovery. NIPSCO did so in an effort to expedite discovery

-and avoid the necessity of seeking Boar'd intervention; these

, efforts have obviousi; been unsuccessful.11/

,- 1/ Federal Communications Commicsion procedure is analogous to that'of the NRC. FCC regulations limit the scope S

of discovery in Commission proceedings to those matters ,

l " relevant to the hearing issues . . . ." ( 47 C.F.R.-

i

' S 1.311(b).) In In Re Sumiton Broadcasting Co., 16 t Rad. Reg. 2d (P. & F.) 427 (1969), the Review Board affirmed the Hearing Examiner's decision that the in- -

formation sought by the intervenors was irrelevant to the issues in the proceeding. It was not sufficient that the required discovery might develop evidence that could bear on the credibility of parties and wit-nesses; discovery was denied.

Similarly in In Re Regal Broadcasting Corp., 15 Rad.

, Reg. 2d ( P. & F.) 701 (1969), the Review Board denied  ;

an appeal from the Hearing Examiner's refusal to compel  !

answers to interrogatories. In the Review Board's view, the Examiner did not abuse his discretion in .

holding that "the material [ sought was] not patently relevant to the issues" and that the appellant had i

" failed in its pleadings to disclose its relevance."

(Ij$. at 704, quoting the Hearing Examiner) .

b 'PCCI argues (See, Motion, p. 2 n. ) that "NIPSCO should not now be heard to object" because it failed to raise  :

objections earlier in connection with other requests  !

. for similar information. We find this unremitting, i pitched-battle view of discovery novel but consistent i

witi ICCI's general approach to discovery.

? -

l V I i

i

• c .

e g The documents sought under Paragraphs 2, 8 and 16 are

,;;7 those upon which NIPSCO. bases its projections of peak demand, energy sales, capacity, reserve margins, etc. Clearly,

~

these documents all relate to the future need for power from the NIPSCO system. That is not an issue in this pro-ceeding vnd no allegation has been made that production of the requested documentation will lead to admissible evi--

dence. Thus, none of these requests is proper. Nevertheless, NIPSCO has g-~mced all the documents requested excep'ca few specified documents pertaining to individual industrial customers and their future plans. As a result of this production, PCCI has obtained all of NIPSCO's forecasts and other information requested except for a very small portion of the backup documentation which refers to the future plans of a few individual customers.

The motion to compel discovery seeks documents which are not relevant to this proceeding and must be denied for that reason.

Furthermore, NIPSCO has stated that the public dis-semination of information regarding future demand by particular industrial customers could be detrimental to its customers.

Intervenors state that this claim is " unsupported by facts or logic and [is] purely speculative." (Motion, p. 3.)

On the contrary, logic does support the claim; as NIPSCO's response explained, major industrial customers' plans for j future production and sales and plant additions would be 9

~ '

-8 :

l

+ revealed. The information has not'been publicly. announced ,

and;would obviously be useful.to' competitors. In any. event, we attach the affidavits of several of these customers'which demonstrate that the harm is not " speculative." (See Attach-  ;

ments.l'-5.)1I Public dissemination of the information can* l valso be. detrimental'to NIPSCO as: recorded in.the attached affidavit executed by. Ira J. Roberts.. (See Attachment 5.) '!

l i We note also that-intervenors' suggestion that the documents

~

!- be produced withithe_ customers' identities concealed is  ;

t

]

unfortunately not practical since the~ identities of NIPSCO's ,

l six largest industrial customers will be apparent even if  ;

the names are deleted.

I . .

Intervenors have not alleged any reason why these documents,

['

i which provide backup detail for. forecasts contained in other ,

documents which have been furnished-(though, in our view, beyond the proper scope of discovery), are essential to  :

j them. l The request to compel discovery should be denied.

, t l Paragraph 14. PCCI seeks copies of the complete minutes of "all meetings of NIPSCO's Board of Directors at which n

the Bailly facility has been discussed . . . . In our l

I.

i ,

1/ The affidavits of Mr. Lambeth of Youngstown Sheet and.

Tube Company and Mr. Messenger of Union Carbide Corporation are telecopied copies of the original as the originals were mailed but not yet received. The originals and

copies thereof will follow.

ib l

l.

q.. .

view, that request is.impermissibly broad. PCCI has made no allegation of relevancy and enly an unsubstantiated and

. unexplained claim that the request "is calculated to lead to evidence of the reasons for the failure to construct Bailly." (Motion, p. 4.)

Despite these insufficiencies, NIPSCO produced certified 6

copies of all portions of meetino minutes "at which the Bailly facility has been discussed . . . ." However, PCCI seeks to compel production of the entire minutes of those meetings regardless of the other subjects discussed--e.g.,

the natural gas aspects of NIPSCO's-operations. PCCI claims that NIPSCO improperly excerpted only those portions of I

the minutes which cover discussions of the Bailly facility.

In PCCI's view, such " editing" is impermissible. No authority is cited for that position and, we submit, none exists. On the contrary, NIPSCO is entitled to submit only relevant portions of Board meeting minutes.$/

I/ The position taken by PCCI has not apparently been pursued seriously in reported cases. We have found one case on point. In Cooke v. N.M. Junior College Bd., 579 F.2d 568, 569 (10th Cir. 1978), the defendant sought production of all " diaries or chronological

~

notes by the plaintiff . . . " for a-period of approxi-mately two years. The plaintiff refused to comply but of fered lo submit " copies of any 2nd all entries in the diary which in any way related to the present controversy between the parties." (Id. at 570.) The court held:

This, then, is not an instance where the..plaintif f is -etonewallimg, und-Ms offer to produce relevant entries should be amply sufficient to satisfy the de-I fendants in their discovery efforts. . . .

i The only possible reason the defendants

! would want to inspect and copy non-relevant

entries would be to cause embarrassment.

l (Id.)

I

o. .

_lo-

.We know of no legitimate purpose on the part of the intervenors which would be served by inspection of directors' meeting minutes on subjects unrelated to Bailly--and none is alleged. The request to compel discovery should be denied.

Paragraph 15. PCCI seeks notes and summaries of tele-phone conversations with NRC personnel by NIPSCO employees.

NIPSCO has produced the documents--or portions thereof--

which pertain to admitted contentions but objects to producing those which do not. PCCI in effect claims that it is entitled to all notes and summaries of telephone conversations with NRC personnel by NIPSCO employees without regard to the subject matter of the conversations. For example, PCCI would presumably claim the right to discover notes of a conversation regarding the Mark II containment.although its proposed contention on that topic was expressly rejected ,

by the Board in this proceeding. We submit that the PCCI claim is baseless--and incorrect. The request to compel discovery should be denied. .

t Paragraph 17. PCCI requested "[t]he file referred to P

by William F. Eichhorn during the deposition of Eugene M. i

(

Shorb on September 30, 1980, at pages 239-40 of the tran-script of that deposition."

Attachment 7 is an extract from the transcript (pp. 234-

40) of the deposition which provides the background of this request. It demonstrates that Mr. Shorb was unable to identify ,

the " file" in which his secretary would find "Shorb Deposition 4

, - . - - - - - - --~ - - - - -%- - . -y,,m, -

3

a. .

Exhibit 9." The discussion does contain several references

. to "the file" and "that file" but no one identifAT4 which e

file it was.

However, the basic point is that the documents which were sought by Mr. Vollen (see page 239, lines 14-19)--i.e.,

" memoranda of telephone conversations between Mr. Shorb and Mr..Boyd on this subject between'the' period of July 18,

'78 and January 5, '79" have been produced pursuant to earlier document production requests filed by PCCI. Moreover, Mr. Shorb's files have been thoroughly reviewed in response to PCCI's document requests and all documents within proper requests have been produced. We are aware of no requirement to produce an entire " file" if it contains one_ document properly requested in discovery. The Motion cites no authori-ties for this proposition and must be rejected.

Conclusion For all of the above and foregoing reasons, PCCI's Motion to Compel Production of Documents dated May 11, 1981, should be denied in all respects.

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

l By /h #

' William H. Tichhorn Attorneys for Northern Indiana Public Service Company l

LOWENSTEIN, NEWMAN, REIS

& AXELRAD 1025 Connecticut Avenue, N.W. '

l' Washington, D.C. 20036

. . _ . _