ML20030B111
| ML20030B111 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 07/30/1981 |
| From: | Lewis S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8108060067 | |
| Download: ML20030B111 (6) | |
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',[j UNITED STATES OF AMERICA fts NUCLEAR REGULATORY COM.'lISSION C6 AUG 051981* t9 BEFORE THE AT0f1IC SAFETY AND LICENSING BOARD C g ecaus amams %
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In the flatter of NORTHERN INDIANA PUBLIC SER','!CE
)
Docket No. 50-367 COMPANY (Construction Pennit Extension)
(Bailly Generating Station,
)
Nuclea r-1)
)
NRC STAFF RESPONSE T0 "PCCI'S MOTION TO C0f1PEL FURTHER STAFF RESPONSE AND PRODUCTION OF DOCUMENTS" I.
INTRODUCTION On July 10, 1981 Porter County Chapter Intervenors ("PCCI") filed a "flotion to Compel Further Staff Response and Production of Documents"
(" Motion").
PCCI takes issue with two aspects of the Staff's response (set forth in letters of June 25 and July 7,1981) to its "Second Request to the NRC for Production of Documents" ("Second Request")
(May 19, 1981), namely, (1) the Staff's objection to the production of uncirculated notes of members of the NRC Staff and (2) the statement of one of the Staff's counsel that she had "not been able to identify" documents responsive to specified paragraphs of the Second Request.
II. DISCUSSION The reasons for withholding uncirculated notes which might fall within paragraph 11 of the Second Request articulated in our letters of June 25 and July 7,1981 were that (1) the notes were not in the agency's
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possession and (2) were -not " final NRC records and documents" required to be made available in the NRC's Public Document Room ("PDR") and were not "necessary to a proper decision in the proceeding".
Our non-disclosu' was based in part upon a distinction that has been drawn between " personal files" of govenmental agency's employees and
" agency records".E Uncirculated notes retained in an employeef s
" personal files" have been deemed not to be " agency records," whose production can be secured by raquests filed with the agency, either under F0IA or discovery. Where, however, the personal files have not been segregated from agency records in the possession of an NRC employee, they become agency records. Upon closer consideration of the manner in which the notes in qJestion were filed, the Staff has concluded that the notes became agency records.b Since PCCI has' requested documents "which are in the actual or constructive possessions, custody, or control of the NRC" (Second Request, at 1), we are now producing these notes, y
Porter County Chapter of the Izaak Walton League of America v. AEC, 380 F.Supp. 630, (N.D. Ind., 1974), a case brought under the Freedome of Information Act ("F0IA" 5 USC Q 552) involving the same party which has filed instant motion to compel and which arose in an i
i ea. lier adjudicatory stcge of the licensing of this facility.
y Among the notes produced n e some which closer scrutiny has revealed were probably " circulated" by the author to other members of the Staff. These notes would not, therefore, benefit from whatever protection is afforded uncirculated notes.
i I
Although we are producing these notet, we adhere to the position that the notes which had been withheld do not bear upon the question of whether NIPSCO has shown " good cause" for its requested extension of the construction completion date and are not, therefore, necessary to a proper decision in this proceeding (See 10 C.F.R. 9 2.744). Since fomulating this position, however, the Court of Appeals for the District of Columbia Circuit has directed that the acceptability of the short piles be considered in a construction permit amendment proceeding to be held in conjunction with the present proceeding., State of Illinois v.
NRC (No. 81-1163, June 1, 1981).
The handwritten notes are arguably relevant to an inquiry into the acceptability of the short piles.
Although the Commission has not yet ordered a hearing on the short piles, the Staff will now produce these handwritten notes in that they may be necessary to a nroper decision in any proceeding for the approval of the short piles.
PCCI also asserts that Staff counsel's statement that it had "not been able to identify" any documents responsive to paragraphs 1, 2, 3 and 10 of the Second Request was an insufficient response and that the Staff should be directed to state " definitively" whether such documents exist.
PCCI misstates the burden placed upon a party by a document request. No party (particularly one with files as extensive as the NRC Staff's) can state with certainty whether documents falling into a specified category do or do not exist somewhere in its files. All that is reg'uired of a party responding to a document request is that it make a diligent search
of its files for documents responsiv' to the request.E This the Staff did and upon this search was based Sttff counsel's statement that she had been unable to locate any documents responsive to the enumerated parag raphs.
No further response should be required by the Atomic Safety and Licensing Board.
III. CONCLUSION For the reasons developed above, the Staff has determined to produce thehandwrittennotesofwhichproductionissought.O The Staff opposes, however, PCCI's Motion, insofar as it asks for a Licensing Board order directing the Staff to file a more " definitive" response to the Second Request.
Respectfully submitted, M.G t
Stephen H. Lewis Counsel for NRC Staff Dated at Bethesda, Maryland this 30th day of July,1981 y
Cf Kennor v. Commissioner cf Internal Revenue 445 F.2d 19 (1971); US v Neff, 615 F.2d 1235 (9th Cir., 1980).
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Some portions of the notes are only barely legible, since they are photocopies of handwritten notes taken in pencil. The originals of those notes are not available, and we are not, therefore, able to supply clearer copies.
8;NITED STATES OF AMERICA Nt CLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)l In the Matter of NORTHERN INDIANA PUBLIC SERVICE I
Docket No. 50-367 COMPANY h
(Construction Permit Extension) l (Bailly Generating Station, h
Nuclear-1 J
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO 'PCCI'S MOTION TO COMPEL FURTHER STAFF RESPONSE AND PRODUCTION OF DOCUMENTS'" in the above-captioned proceeding have been served on the following by deposit in the United States mail, fi.rst class, or, as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 30th day of July,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 9733' 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 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 Hannond, 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
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1 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- Docketing and Service Section 4
Office of the Secretary U.S. Nuclear Regultdory Comission j
Washington, D.C.
20555
- 1 1
Stephen #. Lewis H
Counsel for NRC Staff i
l 1
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