ML20004D425
| ML20004D425 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 06/08/1981 |
| From: | Hodgdon A, Lewis S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8106090383 | |
| Download: ML20004D425 (8) | |
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UNITED STATES OF AMERICA NUCLEAR REGULNiORY C0lil!ISSION BEFORE THE AT0l!IC SAFETY AND LICENSING BOARD In the Ibtter of
)
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NORTHERN INDIANA PUBLIC SERVICE
)
Docket No. 50-367 C0l1PANY
)
(Constructior. Pemit Extension)
(Bailly Generating Station, Nuclear-1)
)
NRC STAFF RESPONSE TO PORTER COUNTY CnAPTER INTERVEN0RS' APPLICATION PURSUANT TO % 2.720(h)(2)(i)
I.
INTRODUCTION On May 19, 1981, Porter County Chapter Intervenors ("PCCI") filed with this Board an application pursuant to 10 CFR 9 2.720(h)(2)(i) by which they sought an order requiring the attendance and testimony at a deposition of James G. Keppler. A Notice of Deposition of Mr. Keppler, who is the director of the Division of Resident and Regional Reactor Inspection, Region III, Office of Inspection and Enforcement ("IE"), was filed with the application.
The NRC Staff opposes Mr. Keppler's deposition for the following reasons:
- 1) PCCI proposes to examine Mr. Keppler on matters which arc not relevant to any issue in the proceeding; 2) PCCI has failed to make the showing required by 9 2.720(h)(2)(i), namely that exceptional circua-stances, such as a case in which a particular named NRC amployee has 8106 09 0$h
direct personal knowledge of a material fact not known to the witnesses nade available_ by the Executive Director for Operations, require the attendance and testimony of Mr. Keppler.
II. DISCUSSION A.
PCCI seeks to examine Mr. Keppler on matters which are not relevant to any issue in this proceeding.
Under the NRC's rules of practice, discovery "shall relate only to those matters in ;ontroversy which have been identified by the Commission or the presiding officer in the prehearing order entered at the conclusion of the [6 2.751a] prehearing conference."
10 C.F.R.
@ 2.740 (b)(1).
Two of the matters en which PCCI seeks to exanine Mr. Keppler, NIPSCO's technical competence and NIPSCO's quality assurance program, were mentioned in a menorandun from Mr. Keppler to James Sniezek, Director, Division of Resident and Regional Inspection, IE.
Mr. Keppler stated in the memorandun his opinion that the issues of this construction permit extension proceeding should include, among other things, matters concerning NIPSCO's technical competence and its quality assurance program.
It is on these matters, among others, that PCCI now seeks to depose Mr. Keppler.
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PCCI served !!r. Keppler's Memorandun on this Board and the parties l
to this proceeding on January 21, 1981 and subsequently used it as a basis for its proposed Contention 14, which was held to be inadnissible l
l by this Board in an Order af thrch 30, 1981.
In that Order the Board l
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.,. noted that it had on previous occasions ruled on the issues containad in Conte'ntion 14 and that those issues had been held inadmissible because they went beyond the scope of this proceeding. Memorandum and Order, 11 arch 30,1981, at 4.I/
In seeking to depose Mr. Keppler, PCCI is attempting for the third time t.o bring into contention natters rejected by the Board as irrelevant to this proceeding and repeatedly rejected by Staff as matters playing no part in the case it intends to present.
Darrell Eisenhut, Director, Division of Licensing, Office of Nuclear Reactor Regulation, said in the letter to the Board forwaraing both the subject memorandun and a j
memorandum from Mr. Sniazak to Mr. Eisenhut "...the enclosed documents
[the two memoranda] do not alter the Staff position as represented in
-1/
In its Order Following Special Prehearing Conference (August 7, 1980) the Board narrowed PCCI's proposed Contention 7 which sought l
to introduce many of the same issues as those later proposed in Contention 14:
"To the extent that Petitioners seek to establish that the delay was attributable to technical incompetence which brings ir.to l
questien Permittee's ability to construct a safe facility, we admit the contention as falling within the scope of this proceeding as delineated by Cook ALAB-129, supra.
To the extent, however, l
Petitioners seek to litigate any alleged lack of technical ability l
not actually manifested in the delay in construction, that matter has already been ?etermined in the CP proceeding and is not admissible here."
No-thern Indiana Fublic Service-Company (Bailly Generating Station, 1
Nuclear 1), 12 NRC 191 (1980).
At 221-22.
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its pleadings before the Board in this proceeding."U Staff reiterated in its Response of March 26, 1981 that the recommendations of the IE Staff mem6randa regarding the the scope of proceeding had not been adopted by the' Director of the Division of Licensing.
For these reasons, the Staff opposes PCCI's application as it relates to the issue of overall technical competence and the adequacy of NIPSCO's quality assurance program.
B.
PCCI has failed to make the showing required by 5 2.720(n)(2)(i) for deposing named Staff personnel.
In accordance with 10 CFR 9 2.720(h)(2)(i), the presiding officer may, upon a showing of exceptional circumstances, such as a case in which a particular naned NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director for Operations, require the attendance and testimony of named NRC personnel. The proviso suggests a three part test:
- 1) direct personal knowledge 2) of a material fact 3) not known to the witnesses made available. Without making thh required showing PCCI concludes that Mr. Keppler's memorandum indicates " direct personal knowledge of material facts concerning the Bailly plant which are the subject of that memorandum and which could not be known to M. David Lynch, the witness thus far indicated as available by the Staff." PCCI mkes no attempt to show that Mr. Keppler has direct personal knowledge of facts material to this case, but r'ather focuses on the subject of the memorandum, which concerns a y
Letter to the Board, from Darrell G. Eisenhut, dated January 16, 1981.
perceived need on the author's part "to broaden the Hearing issue's to include the matters discussed in this nemorandun."
Mr. Keppler's nemoranduin states that it is his understanding that the issues in the Bailly Construction Pernit Extension relate to " environmental conditions
^
that may be caused by extension of the Construction Permit, the reasons for construction delay, and the competency of the utility as evidenced by the delays" and that it is his belief that certain other matters should be considered in the proceeding, namely:
(1) anticipated modifications to the "one-of-a-type 645 f1we Mark II BWR 5 design" and the increased costs attributable to the nodifications; (2) need for upgrading the Quality Assurance organization and progran identified in the
-construction permit application; and (3) the overall competence of the utility to construct and operate the facility in view of changed standards.
Mr. Keppler's memorandun indicates an awareness of what the issues in the case are and expresses an opinion that the hearing issues should be broadened.
It makes no representation whatsoever to the author's having " direct personal knowledge" of any factual matter which is material to this proceeding.
PCCI's showing on the third part of the test is based on a con-jecture at best.
PCCI does not know whether fir. M. David Lynch, the Bailly project manager, who was designated by Staff as its witness in a letter of Oc,tober 7,1980 to counsel for PCCI, lacks direct personal knowledge of material facts known to 11r. Keppler.
Although Staff made fir. Lynch available for deposition at the NRC Staff Offices in Bethesda, Maryland e
. s on October 30-31, 1980, or on other mutually convenient dates, PCCI moved to compel that the deposition take place in Chicago.
Staff opposed PCCI's Motion and this Board issued a Ikmorandum and Order on January 19, 1981, restricting the location for fir. Lynch's deposition to the Washington, D.C. metropolitan area unless Mr. Lynch ware present in Chicago under circumstances which would permit the taking of his deposition.
Consequently, Mr. Lynch has.not yet been deposed by PCCI.
Regardless of whether Mr. Lynch may lack knowledge of the subject matter on which Mr. Keppler's memorandum is based, that subject matter is totally irrelevant to any issue in this proceeding.
CONCLUSION For the reasons discussed above, the Atomic Safety and Licensing Board should deny PCCI's application for failure to make the requisite showing under 9 2.720(h)(2)(1).
Respectfully submitted,
.YW Stephe H. Lewis Counsel for NRC Staff K4L OC/
W Ann Hodgdon Counsel for NRC St.f Dated-at Bethesda,flaryland
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this 8th day of June,1981 I
P
e UNITED STATES OF AMERICA NUCLEAR REGULATORY C0miISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NORTHERN INDIANA PUBLIC SERVICE
)
Docket No. 50-367 COMPANY (Construction Permit Extension)
(BaillyGeneratingStation,
)
Nuclear-1
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO PORTER COUNTY CHAPTER INTERVENORS' APPLICATION PURSUANT TO % 2.720(h)(2)(i)" 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 by deposit in the Nuclear Regulatory Commission internal mail system, this 8th day of June,1981:
- Herbert Grossman, Esq., Chairman, Robert L. Graham, Esq.
Administrative Judge One IBM Plaza Atomic Safety and Licensing Board Panel 44th Floor U.S. Nuclear Regulatory Commission Chicago, Illinois 60611 Washington, D.C.
20555 George and Anna Grabowski Robert L. Holton, Administrative Judge 7413 W. 136th Lane School of Ocecnography Cedar Lake, Indiana 46303 Oregon State University Corvallis, Oregon 97331 John Van Vranken, Esq., Chief Northern Region J. Venn Leeds, Administrative Judge 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 l
and Toll United Steelworicers of America i
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 i
109 North Dearborn Street 5243 Hohman Avenue i
Chicago, Illinois 60602 Hannond, Indiana 46320 Edward O'. 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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-2 Atomic Safety and-Licensing Appeal Board Panel U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- J H. rA Stephen 91. Lewis Counsel for NRC Staff l
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