ML20004C672
| ML20004C672 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 05/22/1981 |
| From: | Vollen R, Whicher J PORTER COUNTY CHAPTER INTERVENORS, VOLLEN, R.J. & WHICHER, J.M. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8106040455 | |
| Download: ML20004C672 (8) | |
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Porter County Chapter cf the I aak Walton League of America, Inc.; Concerned Citizens Against Bailly Nuclear Site; Businessmen for the Public Interest, Inc.; James E. Newman and Mildred Warner
("PCCI"), by their attorneys, move the Board to enter an order, pursuant to 10 CFR 52. 740(f)(1), compelling NIPSCO to physically produce for copying at the offices of PCCI's actorneys the following four documents, each of which previously was produced by NIPSCO to PCCI at the Bailly site, but then " withdrawn" by NIPSCO:
1.
A letter dated April 29, 1974, from William H. Eichhorn to Dr. J.K. McClusky of the NIPSCO Nuclear Staff.
2.
'A draft form of proposed agreement entitled
" Contract Between Northern Indiana Public Service Company and General Electric Company for Nuclear Fuel and Related Services for Bailly Generating Station, Nuclear 1" dated September 5, 1969 (Draft 1/27/72).
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A draf t form of proposed agree =ent entitled
" Contract Between Northern Indiana Public Service Company and General Electric Company for Initial Core of Nuclear Fuel and Related Services for Bailly Generating-Station, Nuclear 1" dated February 24, 1970 (Draf t 7/11/ 73, Revised 1/ 3/ 74, Revised 7/8/74).
4.
A document entitled "SX8 C Lat: ice - 100 Mil Channels, Fuel Management Su= mary, Bailly IN, Data Sheet, 994.07, Rev.
0," dated September 5, 1974.
In support of this motion, PCCI state as follows :
On May 4, 1981, NIPSCO produced, at the Bailly site, what it described as all. documents responsive to PCCI's Second and Third Requests to NIPSCO for Production of Docum~ents, except those regarding which it had previously obj ected and has not yet been ordered to produce.
The mechanics of the document inspection were the subject of agreement of counsel for NIPSCO and for PCCI.
All of the documents were placed in a room at tne Bailly site.
Among the documents produced were a number that NIPSCO employees described as previously having been produced in other litigation.
Counsel for PCCI, and two Assistant At:orneys General of the State of Illinois who also were present, were permitted to
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read all documents in the room without restriction or interference.
Counsel were to designate those of the documents which they wished to take to Chicago for further inspection and copying.
As a document was selected to be taken to Chicago..it was presented to one of several NIPSCO employees who marked down a brief description O
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After all documents desired to be taken to Chicago for further inspection and copying were designated, Mr. Russell Bohn, an employee of NIPSCO, informed counsel for PCCI that certain of the designated documents had been segregated by NIPSCO from the others and placed in a separate box marked " Box 10".
NIPSCO at the direction of employees informed counsel for PCCI that, counsel for NIPSCO, counsel for PCCI would not be allowed to take the documents.in " Box 10" to Chicago.
All of the documents in
" Box 10" had been produced by NIPSCO in the other litigation referred to above.
On May 5,1981, counsel for PCCI wrote counsel for NIPSCO requesting that NIPSCO turn over all documents in " Box 10",
and on May 7,1981, counsel for NIPSCO replied by letter stating that all documents, except for four documents described in that letter, would be delivered to counsel for PCCI in Chicago, as they have been.
Copies of both letters have been sent to the Board and to all parties.
It is the four documents described in Mr. Eichhorn's letter of May 7,1981, which PCCI seek by this Motion.
It was only af ter SIPSCO had produced the documents in ques t ion, and after PCCI counsel had reviewed and selected them as among those which they wished to copy, that NIPSCO changed its position and " withdrew" them from production.
Such a discovery tactic of attempt'ing to change position on the discoverability of a documert after an adversary has seen it and-indicated an interest in it - in effect to interpose
4_
an untimely objection in an obstructionist manner - is simply not contemplated or per=itted by the NRC rules, nor by the Federal Rules of Civil Procedure upon which the NRC rules are based.
Having produced the four documents, NIPSCO cannot now claim they are not discoverable.
Any obj ections which NIPSCO attempts to interpose through Mr. Eichhorn's May 7,1981 letter are untimely and have been waived by production of the documents on May 4.
In addition, the fact that each of the four documents previously had been produced in other litigation constitutes an independent waiver af any claim of privilege or confidentiality here.
- Finally, as we show below, each of the specific objections to the four documents, belatedly asserted in the May 7, 1981 letter, is without merit.
1.
" Letter dated April 29, 1974, fror William H. Eichhorn to Dr. J.K. McClusky. "
NIPSCO claims that this letter, although it was produced in response to PCCI's Second Request, is not within the scope o f that request.
The mere fact that the document is dated prior to l'ay 1, 1974 does not preclude it from containing information relevant to the period after that date; and, to the extent that the document does fall outside the scope of the second request, this objection has been mooted by Porter County Chapter Intervenors' Fourth Request to NIPSCO for the Production of Documents, filed May 19, 1981,- which contains a
5-request for that specific docu.nent.
N!?SCO further asserts a privilege based on " counsel's advise to his client."
Any such privilege has of course been waived by production both here and in the other litigation.
2.
" Draft of ' Contract Between Northern indiana Public Service Company and General Electric Company for Nuclear Fuel and Related Services for Bailly Generating Station, Nuclear-l' dated September 5, 1969 (Draft 1/7/72)."
As with'e.he document described in paragraph 1 above, the mere fact of its date does not bring it outside the scope of the request; and to the extent that this document is not within the Second Request, Porter County Chapter Intevenors ' Fourth Request to NIPSCO for the production of documents contains a specific request for it.
This obj ection is therefore moot.
NIPSCO also purports to assert a claim that this document was " considered proprietary at the time of its submittal to NIPSCO."
There is no assertion that the document is presently propriatary, oud it is irrelevant to the production of this document,that it was at one time so claimed to be.
- Moreover, even if G2neral Electric does claim it to be proprietary,
th at does not autherire ::I?SCO to withdraw it after it has been produced and designated as a document to be copied.
Absent a protective order covering the document, PCCI is entitled to the document.
Plainly, the assertion in the 1
May 7 letter that these documents '"have been treated by NIPSCO a
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6-as confidential documents since their receipt" is contradicted by the: face of their having been produced on May 4, 1981 and in prior litigation.
3.
" Draft of ' Contract Between Northern Indiana Public Service Company and General Electric Company for Initial Core of Nuclear Fuel and Related Services for Bailly Generating Ctation, Nualear-l' dated February 24, 1970 (Draft 7/11/73, Revised 1/3/ 74, Revised 7/8/74)'."
NIPSCO also makes an assertion of the past proprietary nature of this document.
There is no allegation that the document is currently considered to be proprietary, nor has a protective order been requested.
Any obj ection to its pro-duction is without merit.
4 "8X8 C Lattice - 100 Channels, Tuel Management Su= mary, Bailly, IN, Data Sheet, 994.07, Rev. 0' dated September 5, 1974."
NIPSCO alleges a present proprietary interest in this document on behalf of General Electric.
However, no motion for protective order has been made, the document has been produced both in this proceeding and in o her litigation, and the obj ection has therefore been waived.
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.. -CONCLUSION Each of the four documents listed in the May 7 letter and discussed above has been produced, and there is no valid objection to their production.
Accordingly. PCCI respectfully request that this motion be granted and an appropriate order be entered forthwith, compelling NIPSCO to physically produce at the offices of PCCI's attorneys, for further inspection and copying, the four documents which are the subject matter of this motion.
DATED:
May 22, 1981 Respectfully. submitted, O hd%tu) 1W
-Robert J.
Vollen 4 AIL lEb -.
\\(L Jane ti. Wh$cher Attorneys for Porter County Chapter Intervenors Robert J..Vollen Jane ".. Whicher c/o BPI 109 North Dearborn Suite 1300 Chicago, IL 60602 (312) 641-5570
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1 SORTHERN IMD:ASA PL*BLIC
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Docke: Sc. 50-367 SERVICE COMPANY
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(Bailly Genera:ing Station.
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CERTIFICAT? 07 SERVICE served copies of :he P: :er Ceu.::-
I hereby certify that i
Chapter Inte:venors' Motion to Compel :: PSCO to P.hysically Produce Documents on all persons on the attached Service List, by causing them to be deporized in the I!.S. = ail, first class postage prepaid, on May 22, 1981.
Robert J. Vollen Jane M. Whicher BY:
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Whicher Attorneys for Perter County Chapter Intervenors Robert J. Vollen Jane . Whicher 1
l c/o SPI 109 N. Dearborn Suite 1300 Chicago, IL 606]2 (312) 6(1-5570 P00R ORIGINAL
O cERVICE LIS~
Herber: Gr ssman, Esq.
George Anna Grabcwski Administrative Judge 7413 W. '36th Lane Atomic Safety & Licensing Cedar Lake, Indiana 46303 Board Panel U.S. Nuclear Regulatory Dr. Gecrge Schult:
Commission E07 C. Cecispring Road Washington, D.C.
20555 Michigan Ci:y, Indiana c6360 Richard L. Robbins, Esc.
Dr. Robert L. Holton Administrative Judge Lake Michigan Federation School of Oceanography 53 W. Jackson Boulevard Oregen State University Chicago, Illinois 60604 Co rvallis, Oregon 97331 Mr. Mike Olssanski Mr. Clifford Mezo Local 1010 - United S teelworkers of America Dr. J. Venn Leeds Administrative Judge 3703 Euclid Avenue 10507 A:well East Chicago, Indiana 46312 Hous ton, Texas 77096
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Steven C. Goldberg, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commissio:
Maurice Axelrad, Esq.
Uashington, D.C.
20555 Kathleen H. Shea, Esq.
Lowenstein, Newman
- Reis, Anne Rapkin, Asst. Attorney Generr Axelrad and Toll John Van Vranken, Environmental 1025 Connecticut Ave., N.W.
Control Division
'Jas hing ton, D.C.
20036 188 W Randolph - Sui:e 2315 Chicago, Illtnois 60601 Willia: H. Eichhorn, Esq.
Eichhorn, Eichhorn & Link Docketing & Service Section 5243 Hohman Avenue Office of the Secretary Hansond, Indiana 46320 U.S. Nuclear Regulctory Commissio-Washington, D.C.
20555 Diane B. Cohn, Esq.
Willia-P.
Schultz, Esq.
Stephen Laudig, Esq.
21110 Cumberland Road Suite 700 2000 ? Street, N.W.
Noblesville. Indiana 46060~
Washington, D.C.
20036 A:omic Safety & Licensing Daard Fanel U.S. liuclear Regula: cry Co= mission Washing:en, D.C.
20555 A:ocic Safety and Licensing A. peal Board Panel L.S. Nuclear Regula: cry Ccemission.
Washington, D.C.
20555 P00R ORIGINAL