ML20010C823

Response Opposing Porter County Chapter Intervenors' 810810 Motion for Extension of Time to Take Depositions.Intervenors Had Ample Opportunity for Discovery.Board Should Not Allow Delaying Tactics

ML20010C823
Person / Time
Site:	Bailly
Issue date:	08/17/1981
From:	Eichhorn W EICHHORN, EICHHORN & LINK, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8108210052
Download: ML20010C823 (9)

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UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION ll

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD dDN L  %.gl#> '

In the Matter of ) , Docket No. 50-367 D G

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LNORTIIERN INDIANA PUBLIC ) (Construction Permit .

,Sh2VICE COMPANY ) Extension)

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d{e{M'd.//q, Q h (Bailly Generating Station, ) August 17, 1981 // / Y'S 1

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As Q NORTIIERN INDIANA PUBLIC SERVICE COMPANY'S RESPONSE 1 IN OPPOSITION TO PORTER COUNTY CIIAPTER INTERVENORSW, \'yy s

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4 MOTION TO EXTEND TIME FOR TAKING DEPOSITIONS /,f

[Y5T On June 1, 1981, Northern Indiana Public Service Company (NIPSCO) submitted a motion for establishment of'a schedule, which requested the issuance of an order closing discovery l *

(including taking of depositions) by July 31, 1991. / On July 10, 1981, the Licensing Board issued an order which inter alla directed ti.at all depositions be scheduled by August 28, I' **

1981.- / Following complaints from Illinois and the Porter County Chapter Intervenors (PCCI) that the July 10 order was

" ambiguous," the Board scheduled September 30, 1981, as

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-*/ Northern Indiana Public Service Company's Motien for i Establishment of Schedule (June 1, 1981), p. 2.

• • / Order (Closing Discovery) (July 10, 1981), p. 1.

• • • / Motion for Clarification of Order (July 17, 1981), p. l.,

Porter County Chapter Intervenors' Motion for Clarifica-i tion or Reconsideration of Orders Concerning Discovery Dated July 10, 1981_ (July 22, 1981), p. 3.

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the deadline for the taking of depositions.* / PCCI.has now filed Porter' County Chapter Intervenors' Motion to Extend Time for Taking Depositions (Motion) (August 10, 1981), which seeks a further deferral of the last date for taking depositions.

NIPSCO hereby. submits its response in opposition to the Motion.

As grounds for its Motion, PCCI points to the fact that it is seeking to depose individuals during all but three week-

-days during September. It argues that such a schedule for taking depositions "is totally unworkable and unrealistic,"

s and that such a schedule "would deprive PCCI of a fair oppor-tunity to prepare for the hearing." (Motion, pp. 5-6). A review of the record in this proceeding reveals that PCCI's claims lack merit.

Discovery was opened in this proceeding on August 7, 1980.- /

Thus, between the time that discovery was opened and the time NIPSCO filed its motion for establishment of a schedule, the intervenors were afforded almost ten months of discovery.

However, during this period, PCCI only requested the deposition of nine different individuals. ***! In fact, during approximately

-*/ Order (Summarizing Actions Taken at Conference Call of August 3, 1981) (August 4, 1981), p. 2.

• • / Order Following Special Prehearing Conference (August 7, 1980), p. 69.

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• • • / See Attachment A.

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4 five months of this period, PCCI filed no formal discovery l requests at all. /

However, as soon as MIPSCO filed its motion to close discovery, PCCI suddenly increased its requests for deposi-tions. In the 2 1/2 month period following the submission ,

of NIPSCO's motion, PCCI has requested the depouition of 27 different individuals,- **

/ three times as many individuals which PCCI sought to depose during the previous ten months.

PCCI is now attempting to utilize its recent flurry of requests for depositions as an excuse for extending the date for closing discovery.

A party should not be permitted to defer its requests for depositions, schedule numerous depositions during the latter part of the discovery period, claim that its own schedule for numerous depositions "is totally unworkable and unrealistic," and then utilize its deposition schedule as a ground for extending the discovery period. Acceptance of such a ploy would enable a party to extend discovery at its will.

Moreover, in the context of this proceeding, PCCI's actions are suspect. Pit;t, it is apparent that PCCI dusires to delay

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PCCI filed no formal discovery requests between October 24, 1980 (notice of deposition of Eugene W. O'Rorke) and March 20, 1981 (interrogatories to and request for the production of documents from NIPSCO). See also Porter County Chapter Intervenors' Motion to Suspend Litigation Proceedings (November 13, 1980).

,**_/ See Attachment B.

completion of discovery, and hence this proceeding, for as long as the Board will tolerate. This is evident by PCCI's request to suspend discovery, / its objection to NIPSCO motion to close discovery,- j its motion for reconsideration of the July 10 order which closed discovery, its attempt to obtain generally a "f urther round of discovery /' its motion for leave to initiate further discovery, and its instant motion.

Second, PCCI has had ample opportunity for discovery, and in fact has conducted extensive discovery. In addition jp to its numerous requests for depositions, PCCI has filed seven different sets of requests for documents f rom !:IPSCO, five different sets of requests for documents from the NRC Staff, five different sets of interrogatories to NIPSCO, and three different sets of interrogatories to the NRC Staff. NIPSCO

-*/ Porter County Chapter Intervenors' Motion to Suspend Litigation Proccedings (November 13, 1980).

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Porter County Chapter Intervenors' Answer to NIPSCO's Motion for Establishment of Schedule (June 16, 1983).

• • • / Porter County Chapter Intervenors' Motion for Clarifica-tion or Reconsideration of Orders Concerning Discovery Dated July 10, 1981 (July 22, 1981), p. 4.

• • • • / Id., pp. 4-5.

2****/ Porter County Chapter Intervenors' Motion for Leave to Initiate Further Discovery (July 31, 1981).

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l estimates that it alone has made more than 250,000 pages of  :

l documents available to PCCI during the course of this proceeding.

Given this background, PCCI's claim, that absent an extension it would be deprived of a " fair opportunity to prepare for the hearing," rings hollow. / (See Motion, p. 5).

Finally, there is no indication that PCCI could not have scheduled these depositions for earlier in the croceeding.

The existence of most, if not all, of the requested deponents was known to PCCI long before it scheduled their depositions, 4

yet PCCI delayed scheduling these depositions until after NIPSCO filed its motion to close discovery. Since PCCI was certainly free to select a different schedule for the depositions, any

" unreasonable burden" it might suffer as a result of the deposition schedule is of its own making. (See Motion, p. 1).

-*/ In this regard, it is difficult to discern any necessity for many of the depositions which PCCI has noticed. For example, PCCI has requested to depose nine individuals solely because they have authored reports related to dewatering. (See Porter County Chapter Intervenors' Showing of General Relevance in Support of Application for Subpoenas (August 10, 1981)). There is no reason to believe that PCCI could not obtain the information it seeks from these individuals without the necessity of resorting to subpoenas and the formality of depositions.

Similarly, there is no indication that these individuals could provide PCCI with any information which it already does not possess. Moreover, the information provided by some of these individuals would obviously be cumulative (e.g. six individuals from USGS who are involved in the same report).

. , 6-l Thus, it is apparent that the intervenors have had ample-

, opportunity _for discovery, that PCCI has postponed the filing e

of the~ vast majority of.their requests for depositions until the last two months of discovery, and that PCCI is attempting to rely upon its own actions as a ground for prolonging discovery and this proceeding. The Board should not sanction such a tactic, and should der.y the Motion.* /

Respectfully submitted, EICHHORN, EICHHORN & LINK 5243 Hohman Avenue 3

Hammond, Indiana 46320 1 -

1 By: /

i William H. Li6hhorn

. Attorneys for Northern Indiana Public Service Company LOWENSTEIN, NEWMAN, REIS 3 & AXELRAD 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036

-*/ Under the August 4 Board G.-der if any party, including 1cCI, can show good cause, it can request the Board to j e.athorize specific additional discovery beyond the. established j deadline. This would presumably require at least a showing that the specific additional discovery requested is essential,

that there are good reasons why such discovery could not have been requested earlier and accomplished prior to the deadline, that no party will be prejudiced in its j trial preparation by such additional discovery, and that f the hearing would not be delayed thereby. Obviously, this i

is the course that should be followed by any party which l has an appropriate basis for additional discovery; not the l.

open ended and unsupported request for unlimited depositions sought by PCCI.

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Attachment A t

Requests for Depositions filed by PCCI

Between August 7, 1980'and June 1, 1981 Date of Request Deponents Aug. 19, 1980 Eugene M. ShorbbA '

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! Aug. 28, 1980 Russell Rohn / 4/

Sept. 17, 1980 NRC Staff Witnessb E f Sept. 17,.1980 Edmund A. Schroer2 / 4/

Sept. 17, 1980 Horace P. Lyle2 / 4/

2 i Oct. 7, 1980 A. P. Severance / 4/ 6/

i Oct. 24, 1980 Eugene W. O'Rorke q May 12, 1981 Dean H. Mitchelld i May 19, 1981 James G. Keppler I

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l i -1/ This witness 1s-M. David Lynch. See letter from Richard J.

l- Goddard to Robert J. Vollen (Oct. 7, 1980).

i 2/ An amended notice regarding these individuals was sub-1 mitted by PCCI on May 12, 1981.

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An additional notice regarding this individual was sub-mitted by PCCI on May 12, 1981.

-4/ An amended notice regarding these individuals was submitted by PCCI on May 19, 1981.

5/' A motion regardinq this individual was filed on June 26, 1981, by PCCI.

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6/ An amended notice regarding this individual was filed on .

July 17, 1981, by PCCI. i l

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~ Attachment B Requests for Depositions filed by ICcI After June 1, 1981 Date of Request Deponent June 9, 1981 Owen Thompson - NRC ,

June 9, 1981 E. L. Jordan - NRC l June.9, 1981 J. W. Dunnb 'NIPSCO June 18, 1981 Harold Ricca - NIPSCO l June 18, 1981 James F. Purcell - NIPSCO June 19, 1981 D. L. Leone - Sargent & Lundy Engineers June 19, 1981 G. A. Chauvin - Sargent & Lundy Engineers l June 19, 1981 Richard F. Brissette - Canonie Environ-mental Services Corp.

June 19, 1981 Stevo Dobrijevic - Canonie Environ-mental Services Corp.  ;

June l's, 1981 Eugene E. Barnett - C. F. Braun & Co.

iTune 19, .19 81 Thomas J. Wysockey - Thatcher Engineering-June 29, 1981 Allen H. Petersen - NIPSCO June 2D, 1981 Farrest G. Hiple - NIPSCO.

June 29, 1981 Carl R. Kulawinski - NIPSCO July 31, 1981 Superintendent - IDNL July 31, 1981 Chief Scientist - IDNL Jaly 31, 1981 William Meyer - USGS July 31, 1981 Patrick Tucci - USGS July 31, 1981 Daniel C. Gilles - USGS July 31, 1981 Mark A. Hardy - JSGS

-1/ An amended' notice regarding this individual was filed on .'uly 21, 1981, by PCCI.

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-B2-Date of Request Deponent July 31, 1981 Wayne W. Lapham - USGS July 31, 1981 James Marie - USGS July 31, 1981 Person (s) at Ground / Water Technology, Inc.

July 31, 1981 Daniel Willard - Indiana University August 11,.1981 L. G. Hulman - N~C Staff August 11, 1981 L. M. Bykoski - NRC Staff August 11, 1981 Nilliam F. Lovelace - NRC Stiff or Consultant