ML20004C563

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Motion to Compel Responses to Util 810410 First Set of Interrogatories from Intervenors Denominated as Porter County Chapter Intervenors.Answers Are Not & Not Purported to Be Answers of Organizations Named.W/Certificate of Svc
ML20004C563
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:
References
NUDOCS 8106040280
Download: ML20004C563 (7)
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- i UNITED' STATES OF' AMERICA ~ ~'

NUCLEAR' REGULATORY COMMISSION BEFORE THE' ATOMIC SAFETY AND LICENSING BOARD In-the-Matter of ') ~ Docket No.-50-367

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NORTHERN -INDIANA PUBLIC -)- -(Construction Permit SERVICE. COMPANY- -)' ' Extension)

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-(Bailly Generating Station, -) May 26,-1981 Nuclear-1)~ )

i NORTHERN INDIANA PUBLIC' SERVICE COMPANY'S MOTION TO COMPEL. l RESPONSES TO ITS FIRST SET OF INTERROGATORIES TO THE

'INTERVENORS FREQUENTLY-DENOMINATED

" PORTER COUNTY CHAPTER INTERVENORS" ,

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.On April- 10,-1981, Northern Indiana Public Service Company (NIPSCO) filed its!"First Set of Interrogatories" upon the' .

" Porter County Chapter Intervenors." The " Answers".to that

'"First Set of Interrogatories" were~ filed on May 11, 1981.

The " Answers" correctly note that the Interrogatories would three organiza-more properly have been directed separately to tL I tions and two individuals who have in fact been admitted to this proceeding--i.e. , Porter County Chapter of the Izaak Walton League of America, Inc.; Concerned Citizens Against Bailly Nuclear Site; Businessmen for the Public Interest, Inc.; James E. Newman; and

- Mildred Warner. We regret any confusion which our use of the collective " nickname" or " expression of convenience" may have engendered and express our appreciation to counsel for correctly

. understanding that the interrogatories were in fact intended for the organizations and persons named above.

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However, the " Answers" actually ~ are not and do not purport'

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ed. They are to be those'of the-organizaticns and. persons nam f Interrogatories."

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therefore not responsive to NIPSCO's "First Set o

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h Board to i

Pursuant to 10 C.F.-R. .S 2.740 (f) , NIPSCO requests te n named to icsue an order' co npelling each organization and perso respondLto the'First Set of Interrogatories. l The " Answers" filed on May 11 contain-the recita :

Each of these answers'is based upon such information as. is . .

known tothe answering partie agent-as of the date hereof . l The " Answers" were executed.by " Edward W.

(" Answers , " p. 2.) County Osann,_Jr., their agent"--that is, agent for Porter, Inc.; Concerned Chapter of tue Izaak Walton League of America, f or the Public Citizens Against Bailly Nuclear Site;. Businessmen (" Answers, Interest, Inc.; James E. Newman; and Mildred Warner.

p. 12.) ey l Mr. Osann's Affirmation recites that he is "an attorn that he has "the j

for".the named organizations and persons; i their answers" authority as agent for those parties to subm does t so "as agent."

to NIPSCO's First Set of Interrogatories and d the Answers and The Affirmation records that Mr. Osann has rearning them

" conferred with other attorneys for the parties conce f [his] knowledge and that they are true and correct to the best o

p. 13.)

and belief." (" Answers , h re has been These recitals would appear to establish that t e s admitted to ,

no consultation with the organizations and person

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h this proceeding regarding responses to the interrogatories and t at d

-the person signing the responses did not prepare them-and ma e no

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effort to ascertain whether they represented the answers of_the There is organizations and persons for whom he acted as agent.

no recital that either tne unknown person or : persons who prepared '

There is tlua answers _ or Mr. Osann had any knowledge- of the facts.

no indicatici. that the Answers provide the sum total of the information available to all named organizations and persons or, indeed, the information available to any one of them.

'Under NRC regulatiorss, written interrogatories are required "to be answered in writing by the party served, or if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such S 2.740b(a).)

information as is available to the party." (10 C.F.R.

The answers are to be made "under oath or affirmation" and " signed S 2.740b (b)) who, as above by the person making them" (10 C.F.R.

indicated, in certain cases may be an " officer or agent."

These requirements correspond to those imposed under the Federal Rules of Civil Procedure upon which NRC discovery regu-

"[G]uidance may be had from the legal authorities lations are based.

and court decisions construing the Federal Rules on discovery."

(Pilgrim Nuclear Generating Station, Unit 2) ,

(Boston Edison Co.

LDP-75-30, 1 NRC 579, 581 (1975).)

Applicable precedent demonstrates that the answers to by interrogatories directed to_a corporation or organization,

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Lwhomever given, must include the corporate or organizational knowledge and not solely the knowledge of the person preparing and/or signing the answers.

(Segarra v. Waterman Steamship Corp.,

41: F.R.D. 245 (D. P.R.

1966);-Holler v. General Motors Corp.,

3 F.R.D. 296 ~ (D . Mo . - 19 4 4 ) ;

4A' Moore's Federal Practice 1 33.07 An attorney may properly answer on behalf of a

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(2d ed. 1981).)

in doing so-he is obliged corporation or organization; however, to furnish the " sum total" of the corporate or organizational-information; that is, all.the info 1~..ation which is available to the corpcration or organization. (Fernandes v. United Fruit Co.,

50 F.R.D. 82 (D. Md. 1970); Segarra v. Waterman Steamshio Corp.,

42 Jars Etc., 162 F. Supp. 944 (D. N.J.

supra; United States v.

1958), aff'd,.264 F.2d 666 (3d Cir. 1959).)

It is also clearly established that the individual inter-venors, James E. Newman and Mildred Warner, must individually answer the interrogatories; an attorney's answer can not suffice although an attorney can assist in preparing the answers.

(McDougall v. Dunn, 468 F.2d 468 (4th Cir. 1972); Jones v.

Goldstein, 41 F.R.D. 271 (D. Md. 1966); 8 Wright & Miller, Federal Practice and Procedure S 2172 (1970); 4A Moore's Federal Practice 1 33.25[1] (2d ed. 1981).)

NIPSCO therefore requests the Licensing Board to issue an order compelling each of the three organizations and two individuals named above to file full and complete answers, I to NIPSCO's f complying with the requirements of NRC regulations,

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"First. Set of Interrogatories to Porter County Chapter Inter--

venors" (April.10, 1981). In view of the already extended period taken for responding, we respectfully. urge'that the Board act.

seven days-

,promptly and establish a rigorous deadline; we suggest

~after the Board's order.

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

~ William H. Eicnhorn Attorneys for Northern Indiana.

Public Service Company LOWENSTEIN, NEWMAN, REIS

& AXELRAD 1025-Connecticut Avenue, N.W.

Washington, D.C. 20036 l

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.o...-

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION'

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

.In the Matter of ) Docket No. 50-367

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NORTHERN' INDIANA PUBLIC ) (Construction Permit SERVICE COMPANY- ) Extension)

)

(Bailly Generating Station, ) May 26, 1981 Nuclear-1) )

CERTIFICATE OF SERVICE

~I hereby certify that copies of Northern Indiana Public-Service Company's Response to PCCI Motion to Compel Production of Documents Dated May 11, 1981, and Northern Indiana Public Service Company's Motion to Compel Responses _to its First Set of Interrogatories to the Intervenors Frequently Denominated

" Porter. County Chapter Intervenors" were served on the following

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by deposit in the United States mail, postage prepaid, on this 26th day of May, 1981:

13rbert Grossman, Esquire, Chairman Administrative Judge U.S. Nuclear Regulatory Commissior.

Washington, D.C. 20555 Dr. Robert L. Holton Administrative Judge 1 School of Oceanography l I

Oregon State University Corvallis, Oregon 97331 Dr. J. Venn Leeds Administrative Judge 10807 Atwell Houston, Texas 77096 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

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=="" StevenLGoldberg, Esquire Office of the Executive Legal Director

'U.S.. Nuclear' Regulatory Commission Washington, D.C.- 20555

_ Susan Sekuler, Esquire Environtaental-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,LIllinois 60611 Robert L. Graham, Esquire One IBM Plaza

.44th Floor Chicagcs, Illinois 60611 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America Local 1010 3703 Euclid Avenue East Chicago, Indiana 46312 Mr. George Grabowski Ms. Anna Grabowski 3820 Ridge Road Highland, Indiana 46322 s ,

/W WILLIAM H. E1CHHORN 1 Eichhorn, Eichhorn & Link 5243 Hohman Avenue Hammond, Indiana 46320 Attorneys for Northern Indiana Public Service Compa.1y i

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