ML20005A490
| ML20005A490 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 06/29/1981 |
| From: | Lewis S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8106300389 | |
| Download: ML20005A490 (8) | |
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6/29/81 a) +
m UNIIED STATES OF AliCRICA q
NUCLEAR REGULATORY COMMISSION C/ g %
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,g BEFORE THE ATOMIC SAFETY AND LILENSING BOARD 7
JUN 301981 m C Q
u.s.
gj In the Matter of
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NORTHERN INDIANA PUBLIC SERVICE Docket No. 50-367 COMPANY
)
(Construction Permit Extension)
(Bailly Generating Statin, Nuclear-1)
NRC STAFF RESPONSE T0 " PORTER COUNTY CHAPTER INTERVENORS' SECOND APPLICATION PURSUANT TO 10 C.F.R. 6 2.720(h)(2)(1)"
I.
Introduction On June 9, 1981, Porter County Chapter Intervenors ("PCCI") filed their "...Second Application Pursuant to 10 C.F.R. 6 2.720(h)(2)(1)" by which they seek a Licensing Board order requiring the attendance and testimony at depositions of two named NRC Staff members, Owen Thompson and Edward Jordan. A Notice of Deposition of Dr. Thompson and ifr. Jordan was filed on the same date as the Application.
Because PCCI have made no showing that the matters on which they seek to take these depositions are relevant to any issue in this proceeding, the Staff opposes PCCI's Application.
81063003I$
o II.
Discussion PCCI seek to depose Dr. Thompson and Mr. Jordan regarding the subject of their memoranda of May 14, 1981 and May 5, 1981, respectively, which are appended to the Application. The subject of those memoranda is the NRC Staff's plans for augmented onsite monitoring of pile placement. As noted in Dr. Thompson's memorandum, this effort is deemed necessary because of the " unique characteristics of the Bailly site and the proposed pile foundation."E Under the NRC's rules of practice, discovery "shall relate only to those matters in controversy which have been identified by the Commission or tne presiding officer in the prehearing order entered at the conclusion of the [9 2.751a] prehearing conference." 10 C.F.R. 5 2.740(b)(1). Although this precise regulation does not apply to discovery against the Staff,22 10 C.F.R. 5 2.720(h)(2)(1) has a similar provision, which requires the Staff to make a witness (es) available only on matters which are " relevant to the issues in the proceeding".
Additionally, if a party seeks to take the deposition of a named NRC Staff member it must make a showing to the Licensing Board of
" exceptional circumstances". The regulation provides an example of such exceptional circumstances, namely that "a particular named NRC employee has direct personal knowledge of a material fact not known to the witness made available by the Executive Director for Operations".
If Thompson Memorandum, at 1.
2]
See 10 C.F.R. 9 2.740(f)(3)
The discovery sought by PCCI in the instant Application does not pertain to any matter in controversy which has been admitted by the Licensing Board in its prehearing conference orders or any of its other orders ruling on the admissibility of proposed contentions.
In fact, PCCI and the State of Illinois sought to litigate in this proceeding the r.1erits of the shorter piles program and the Licensing Board rejected their proposed contentions.E Relying on the test established in
-Cook,Uthe Board held that no reason had been demonstrated why the merits of the shorter piles needed to be considered in this construction permit extension proceeding and could not abide the operating license proceeding for the Bailly facility.E Although PCCI assert that the testimony of these deponents would be related to "the reasonableness of the requested extension and to NIPSCO's technical competence," both of which PCCI assert to be admitted 3]
Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), LBP-80-31,12 NRC 699, 701-03 (1980).
y Indiana and Michigan Electric Company (Donald C. Cook Nuclear Plant, Units 1 and 2), ALAB-129, 6 AEC 414 (1973). The Appeal Board there stated:
In the final analysis, then, the question here comes down to whether the reasons assigned for the extension give rise to health and safety or environmental issues which cannot appropriately abide the event of the environmental review - facility operating license hearing.
6 AEC 420.
y LBP 80-31, 12 NRC at 702.
9 issues in this proceeding,N there is no showing that the two memoranda on which PCCI rely are relevant to either of these subject matters.
Absent such a showing, it is not apparent that the details of discussions within the Staff regarding its program for onsite monitoring of pile installation have any bearing upon whether N1PSCO has shown good cause for its requested extension.
The meeting referred to in the Thompson itemorandum was not attended by any representative of NIPSCOM and the discussions held were solely among members of the Staff.
The Thompson flemorandum does not indicate that the reasonableness of NIPSCO's requested extension or NIPSCO's technical competence was discussed at all during the meeting.
In addition, the Staff has identified fir. M. David Lynch, the Project Manager for the Bailly facility, as its witness in this proceeding and he is available to be deposed at the NRC's offices in Bethesda, Maryland.
PCCI noted in the footnote on page 2 of its Application that Mr. Lynch was in attendance at the October 9,1980 meeting which was the subject of the Thompson flemorandum, but that fir. Lynch was previously unavailable to be deposed.
PCCI appear to have 6f Application, at 2.
We have no problem with PCCI's characterization of the reasonableness of the requested extension as an issue in this proceeding, but PCCI have overstated the degree to which NIPSCO's technical competence is in issue in this proceeding.
PCCI Contention 7 and Illinois Contention 5 have been admitted only to pennit Intervenors to " seek to establish that the delay was attributable to technical incompetence which brings into question Permittee's ability to construct a safe facility." Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), LBP-80-22, 12 NRC 191, 221 (1980).
JJ Thompson Memorandum, at 1.
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l acknowleged that Dr. Thompson and Mr. Jordan do not have " direct personal knowledge of a material fact not known to" Mr. Lynch.
In any event, they have made no showing that Dr. Thompson and Mr. Jordan have such knowledge. Nor have PCCI made a showing of any other " exceptional circumstance" that would support the issuance of a Board Order directing the Staff to make Dr. Thompson and Mr. Jordan available.8)
In the Notices of Deposition, PCCI designated August 4,1981 as the date for Dr. Thompson's deposition and August 11, 1931 as tne date for Mr. Jordan's deposition. Both depositions would be taken at the offices of PCCI's Counsel in Chicago. There is, however, penning before the Licensing Board NIPSCO's " Motion For Establishment of Schedule" (June 1,1981), which proposes that all discovery be completed by July 31, 1981. The Staff has filed a response supporting NIPSCO's motion.E The Staff, therefore, also opposes PCCI's Application inasmuch as it designates dates for discovery beyond July 31, unless and until the Licensing Board acts upon NIPSCO's motion so as to permit 8]
Although the Staff believes that the memoranda of Dr. Thompson and Mr. Jordan do not relate to matters " material" to this proceeding, if PCCI were to seek to depose Mr. Lynch on other matters the Staff would not object to PCCI's also probing the subjects covered at the October 9,1980 meeting for the limited purpose of attempting to determine for itself whether those subjects have any relevance to issues in this proceeding, y
"NRC Staff's Response to NIPSCO's Motion for Establishment of Schedule"(June 22,1981).
l
i discovery beyond -that date.E Further, the Staff opposes the taking of the Thompson and Jordan depositions in Chicago for the reasons recognized by the Licensing Board in its Memorandum and Order denying PCCI's motion to compel the deposition of Mr. Lynch in Chicago.E III.
Conclusion For the reasons stated above, the Atomic Safety and Licensing Board should deny PCCI's Application for an order under 10 C.F.R. 6 2.720(h)(2)(1) requiring the NRC Staff to make Dr. Owen Thompson and Mr. Edward Jordan available for depos.cion.
Respectfully subnitted, Stephe H. Lewis Counsel for NRC Staff Dated at Bethesda, Maryland this 29th day of June,1981 10f Should PCCI notice a deposition of Mr. Lynch, the Staff would also presently oppose the scheduling of such a deposition on a date beyond July 31, 1981.
1_1/ See Licensing Board's Menorandum and Order (Restricting Location 1
for Deposition), January 19, 1981, which denied PCCI's motion to compel the taking of Mr. Lynch's deposition in Chicago.
At the time that order was issued Mr. Lynch's mother was gravely ill and that was an additional reason for his unavailability to be deposed in Chicago. Mr. Lynch's mother has since passed away. The Board's denial of PCCI's motion was not, however, based solely on Mr. Lynch's personal situation, but recognized the general rule that a deponent be deposed at his personal residence or place of business. Memorandum and Order, at 3.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NORTHERN INDIANA PUBLIC SERVICE
)
Docket No. 50-367 COMPANY
)
(Construction Permit Extension)
(Bailly Generating Station, Nuclear-1 CERTIFICATE OF SERVICE This is to certify that copies of "NRC STAFF RESPONSE TO " PORTER COUNTY CHAPTER INTERVEN0RS' SECOND APPLICATION PURSUANT TO 10 C.F.R. 5 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's internal mail system, this 29th 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 3820 Ridge Road School of Oceanography Highland, Indiana 46322 Oregon State University Corvallis, Oregon 97331 John Van Vranken, Esq., Chief f
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 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
- I 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 Stephenk. Lewis-Counsel for NRC Staff e
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