ML20126H987

First Set of Interrogatories Directed to United Steelworkers of America,Local 1010 Re Dewatering Effects on Lakeshore, Expert Witnesses to Be Called & Documents to Be Introduced Into Evidence or Used in cross-examination

ML20126H987
Person / Time
Site:	Bailly
Issue date:	04/10/1981
From:	Eichhorn W EICHHORN, EICHHORN & LINK, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	UNITED STEELWORKERS OF AMERICA
Shared Package
ML20126H979	List: ML20126H976 ML20126H987
References
NUDOCS 8104220693
Download: ML20126H987 (13)

Text

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--- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of ) Docket No. 50-367

) 'i NORT.HERN1 INDIANA PUBLIC SERVICE ) (Construction Permit  !

COMPANY' ) Extension) , .,,y3 l

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'(Bailly Generating Station, ) April 10, 1981 ,cy  % '

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NORTHERN INDIANA PUBLIC SERVICE  :: APR 131981. [. l! '

COMPANY'S FIRST SET OF INTERROGATORIES TO $

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'- j-UNITED STEELWORKERS OF AMERICA, LOCAL 1010 ,

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\',' l Northern Indiana Public Service Company (NIPSCO) hereb i "> ,' I  ;

serves its First Set of Interrogatories to United Steelworkers of America, Local 1010 (hereinafter " Local 1010"), pursuant to 10 C.F.R. S'2.740b. Each interrogatory is to be answered fully l in writing, under oath or affirmation, and include all pertinent j information-known to Local 1010. Each answer should clearly indicate the interrogatory to which it is intended to be respon-sive. l Under NRC regulations (10 C.F.R. S 2.740(e)) parties are required to supplement responses to interrogatories under certain  !

circumstances when new and/or different information becomes  !

i available.  !

" Local 1010" shall include all agents, employees, attorneys, I i

investigators, and all other persons directly or indirectly subject l l

to its control in any way.  ;

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" Documents" means all written or recorded material of any j kind or character known to Local 1010 or in its possession, custody, j or control, including, without limitation, let'ers, c correspondance, j

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telegrams, memoranda, notes, records, minutes, contracts, agree-ments,. records or notations of. telephone or personal conversations j or conferences, inter-office communications, microfilm, bulletins,  ;

. .i circulars, pamphlets, studies, notices, summaries,-reports, books, l articles, treatises, teletype messages, invoices, tape recordings,  !

e and' work-sheets.  !

When used with respect to a document, " identify" means, j without limitation, to state its date, the type of document (e.g.,

l letter, memorandum, telegram, chart, photograph, sound repro-  !

duction, etc.), the. author and addressees, the present location

'and the custodian, and a description-of its contents.

When used with respect to a person, " identify" means, without I limitation, to state his-or her name, address, occupation,.and professional qualifications.. f If Local 1010 cannot answer any portion of any of the Inter-rogatories in full, after exercising due diligence to do so, so state, and answer to the extent possible, specifying the inability to answer the remainder and stating when Local 1010 expects to i

be able to answer the unanswered portions. i

-i NIPSCO'S INTERROGATORIES  ;

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I. With respect to Local 1010's contention 10.B. (Petition to Deny Permit, pp. 10-11 (December 20, 1980)), as i limited and admitted in this proceeding by the Licensing l Board (Order Following Special Prehearing Conference, l pp. 38-40 (August 7, 1980))- l

1. Does Local 1010 contend that the dewatering which has l been conducted since 1974 has effected the Lakeshore?-

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2. If'yes,.please. identify and describe in' detail the I

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specific effects which dewatering has' caused.

3. Please identify and describe in detail any incremental  ;

effects which Local'1010~. contends will occur as a re-' ll sult of dewatering during an extended period of construc-tion.

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4. Please specify the geographic area within which the  !

l effects identified in the-answer to Interrogatory I.3.  ;

i will occur. ,

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5. How long after construction resumes will each of the  !

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effects' identified in:the answer to Interrogatory I.3.

appear?

6. Will each effect be permanent or temporary? -

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7. How will those effects injure Local 1010? j

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8. Please describe-all studies, investigations and analyses j which Local 1010 has conducted within the Lakeshore or elsewhere-in order to assess the effects of dewatering .;

i on the Lakeshore.  ;

9, Please describe all studies, investigations, and analyses l

upon which you rely in support of your assertion that i dewatering during an extended period of construction  !

will affect the National Lakeshore. l II. With regard to the contention referred to in Interrogatory i I: 1

1. Identify each person '5om Local 1010 expects to call j as an expert witness in respect of the contention. l t

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2. State the subject matter on which the expert witness  ;

i is expected to testify.

3. State the substance of the facts and opinions to which the expert witness is expected to testify and summarize ,

the ground for each opinion.

.4. Identify all documents relied upon or examined by the  :

I expert witness in answering subparagraph II.3. above.

5. Identify all documents not identified in answering subparagraph II.4. above which the expert witness ex-pects to put into evidence or to rely upon in support j of his or her testimony in this proceeding. l

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'III. With respect to the contention referred to in Interrogatory a I:

1. Identify any person having knowledge of the facts re-  !

lating to the contention (other than the expert wit-  !

t nesses identified in response to Interrogatory II).

This question is limited to those persons whom Local  ;

1010 expects to call as witnesses other than expert {

witnesses in this proceeding, or with whom Local 1010 j t

has consulted or expects to consult in connection with j

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this proceeding.  ;

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2. For each person who has been consulted, state when f he or she was consulted and by which representative  !,

of Local 1010 and summarize the substance of any facts l or opinions communicated by such person to the repre-  !

I sentative of Local 1010 relating to the subject matter }

v of contention 10.B. '

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L L, 3. LIf Local-1010 expects to call any person identified in response toLInterrogatory III.l. above to_ testify, state the substance of his or her testimony, summarize

.the' basis for any opinions contained in such testi-

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mony, and identify all. documents which will be intro-duced as evidence or relied upon by such person in support of such testimony.

IV. Identify all documents which Local 1010 expects to intro-duce in evidence or use for cross-examination purposes in this proceeding, other than those identified in the responses to the previous Interrogatories.

Respectfully submitted, EICHHORN, EICHHORN & LINK 5243 Hohman Avenue Hammond, Indiana 46320 By: / s Wi:.liam H. Ei'chhorn Attorneys for Northern Indiana Public Service Company LOWENSTEIN, NEWMAN, REIS

& AXELRAD 1025 Connecticut-Avenue, N.W.

Washington, D.C. 20036 t

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7147,. Regulations--Nuclear Regufatory Commission ses s s.fo -f I

Depositions and Written Interrogatories: Discovery; Admission;  ;

Evidence l,

[1 5237] t i Sec. 2.740. General pwvisions governing discovery.-(a) Discorcry mrth-  !

ods. Parties may obtain discovery by one or more of the following methods: '

Depositions upon oral examinat,on i or written interrogatories -(j 2.740a);  :

written interrogatories (f 2.740b); production of documents or things or per.- , f j for inspection and cther purposes  :

mission

()2.741);'and to enter requests upcn land or other for admission (i 2.74 property,2). .

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o5ce(r m) Scots of discovery. Unless otherwise limited by order of the presiding accordance with this section, the scope of oiscovery is as follows: l l

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! '(1). In pcncral. Parties may obtain discovery regarding any matter, not '

privileged, which is relennt to the subject matter involved m the proceeding, whether ,

t it relatee, to the claim or defense of the party seeking discovery or to the claim or de-  !

fense of any other party, including the existence, description, nature, custody, con- '

i- dition, and location of any books, documents, or other tangible things and the identity  :

and location of ' persons having knowledge of ariy discoverabic matter. In a '

proceeding on an application for. a c5nstruction permit or an operating license for a production or utilization facility, discovery shall begin only after the ,

! prehearing conference provided for in f 2.751a and shall relate only to those matters in controversy which have been identified by the Commission or the i presiding officer in the prehearing order entered at the conclusion of that pre- i hearing conference."In such a proceeding, no dis'c overy shall be had after the i beginmng of the prehearing conference held pursuant to 2.752 except upon j leave of the presiding omeer upon good cause shown. It is not ground for ,

i ob'ection that the information sought will be inadmissible at the hearing if the i  ;

information sought a admissible evidence. ppears '

reasonably calculated to lead to the discovery of

( , j (2) Trialfrc/aration malcrials. A party may obtain discovery of documents  !

and tangible things otherwise discoverable under subparagraph (1) of this '

paragraph and prepared in anticipation of or for the hearing by or for another  ;

.l* party's representative (including his attorney, consultant, surety, indemnitor, )

Insurer, or agent) only upon a showing that the partfseeking discovery has  !

substantial r.ced of the materials in the preparation on his case' and that heis I unable without ' undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the I rotect against i disclosure of the mental impressions, co, presiding officer sha!!nclusions, opinions, ' or fegal j

an attorney or other representative of a party concerning the proceeding. j l (c) Protective order. Upon motion by a party or the person from whom dis . -~

covery is sought, and for good cause shown, the presiding officer may make  !

j any order which justice requires to protect a party or person from annoyance,  !

g embarrassment, oppression, or undue burden or expense, including one or f i more of the following: (1) That the discovery not be had; (2) that the dis- '

' ( i

' covery may be had only on specified terms and conditions, including a designa- l tion of the time or place; (3) that the discovery may be had only by a method  ;

' of discovery other than that selected by the party seeking discovery; (4) that [

• certain matters not be inquired,into, or that the scope of discovery be h,mited,to i certain matters; (5) that discovery be conducted with no one present except j persons designated by the presiding officer; (6 th'at, subject to the provisions  :

of { 2.744 and 2.790, a trade secret or other con)fidential research, development, (-

• or commercialinformation not be disclosed or be disclosed only in a designated  ;

way; (7) that studies,and evaluations not be prepared. If the motion for a pro- t 1 5237 , , 10 CFR 5 2.740 @ 197s, commerce C1 caring Hciuse. Inc '

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8 no re-rs Part 2-Rules of Practico 7143 ,

tective order is denied in whole or in part, the presiding officer may, on such terms and conditions as are just, order that any party or person provide or i  ;

permit discovery.

l (d) Sequcnce and siming of dhcovery. Unless the presiding ofiicer upon i i

mot, ion, for the convenience of parties and witnesses and in the interests of , t justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by depositiort or j ,

otherwise, shall not operate to delay any other party's discovery. I i

'

• e) Sufflementation of responses.' A party 'who has responded to a request ,

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{ for d(iscovery with a response that was complete when made is under l no dutyli to supplement his response to include information thereafter acquired, except  :

as follows: ' '

(1) A party is under a duty seasonably to supplement his response with l respect to any question directly addressed to (i) the identity and location I  ;

of persons having1cnowledge of discoverable matters, and (ii) the identity of  !

each person expected to be cal ed as an expert witness at the hearing, the sub- l ject mater on which he is expected to testify, and the substance of his testimony.

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(2)'A party is under'a' duty seasonably to amend a prior response if he  !

obtains information upon the basis of which (i) he knows that the response , ,

was incorrect when made, or (ii) he knows that the response though correct  !

when made is no longer true and the circumstances are sucl 3 that a failure to  :

amend the response is in substance a knowing concealment. ,

(3) A duty to supplement responses may be' imposed by order of the pre-siding officer or agreement of the parties.

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(f) Motion to com/cl dhcovery. (1) If a deponent or party upon whom a request for production of documents or answers to interrogatones is served i

'~' t fails to respond or objects to the request, or any part thereof, or fails to permit l  ;

l inspection as requested, the deposing party or the may move the presiding officer, within ten (10) party days aftersubmitting the date ofthe therequest 1 response or after failure of a party to respond to the request for an prder g i

compelling a response or inspection in accordance with the request, The .;

motion shall set forth the nature of the questions or the request, the response  :

or objection of the party upon whom the request was served, and arguments l in support of the motion. For purposes of this paragraph, an evasive or in- ,

complete answer or response shall be treated as a failure to answer or respond.  ;

Failure to answer or respond shall not be excused on the ground that the dis-

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covery sought is objectionable unless the person or party failing to answer or .

respond has applied for a protective order pursuant to paragraph (c) of this section. . ,c l

(2) In ruling on a motion made pursuant to this 'section, the presiding l l officer may make such a protective order as he is authorized to make on a motion made pursuant to paragraph (c) of this section. { t'

! (3) This section does not ' preclude an independent' request for issuance f '

of a subpena directed to a person not 'a party for production of documents

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i and things. This section does not n'pply to requests for the testimony or j j interrogatori'es of the regulatory staff pursuant to i 2.720(h)(2) or production +

, of NRC documents pursuant to $ 2.744 or 9 2.790, except for paragraphs (c) .

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and (e) of this section. .

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[Sec. 2.740 added Jul) 21,1972, eIfEtive August 28,1972 (37 F. R.15133); I l amended April 26,1978, effective May 26,1978 (43 F. R.17802).] . . ;

! Nuc! car Regulation Reports 10 CI'R 5 2.74o 15237 I.  ;

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[ 5238]

Sec. 2.740a. Deposith>ns upon ora 1' examination and upon written inter- ,--

rogateries.-(a) Any party desiring to take the testimony of any party or other ( l.  ;

person by deposition on cral exarnination or written "interrogaton,es shall, i l without leave of the Commission or the presiding officer, give reasonable notice l

in writing to every other party, to the person to be examined and to the ,

j presiding officer of the proposed ' time and place of taking the" deposition; the .

name and address of each person'to be examined, if known, or, it the name is l ,

I not known, a general description sufficient to identify him or the class or group g g l to, which he be16ngsj the matters upon which each person will be exammed '

and the name or descriptive title' and address * *

.of the officer before whom the , i depositionis to be taken. , l l c [(b), Revoked.] . g , , , , , , ,  ;  ;

• (c Within the' United States, a deposition may be taken before any l of"icer) authorized to administer oaths by the laws of the United States or of  ;

the place where the examination is heldc Outside of the United States, a de-  : e J position may be taken before a secretary of an embassy or legation, a consul 1 general, vice consul or consular agent of the United States, or a person au- l thorized to administer , oaths designated by,the Commission.. l . , .

I (d) The deponent shall be sworn or shall affirm before any questions are  ; .

put to him. Examination and cross-examination shall proceed as at a heanng. }

Each question propounded shall be recorded and the answer taken down in j

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the words of the witness. Objections on questions of evidence shall be noted in I  ;

short form without the arguments. The officer shall not decide on the compe- , ,

tency, materiality, or relevancy of evidence but shall record the evidence sub-  ;

4

! ject to objection. Objections on questions of evidence not made before the i )

! officer shall not be deemed waived unless the ground of the objection is one ( [

which might have been. obviated or removed if presented at that time. '- I i

} (e) When the testimony is fully tra'nscribed, the deposition 'shall be l l

submitted to the deponent for examination and signature unless he is ill or 't l

cannot be found or refuses to sign. The officer shall* certify the deposition or l

l if the deposition is not signed by the deponent, shall certify the reasons for [

the failure to' sign, and shall promptly forward the deposition by registered ,

mail to the Commission.- .w

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( 6 (f) Where the deposition is l'o l$e'takeN o. . -n written Interrogatories, the  !

{

party,taking the deposition shall serve a copy of the i terrogatones, showing  !

j cach mterrogatory separately and consecutively numbered, on 'every other l i

. party w '

l them,.and ith the a notice name,*stating description, the name title, and and address address of the of the officer person beforewho whom is to answer l

l they are to be taken. Withm ten _(10) days after service, any other party may .-

serve cross-interrogatories. The, ,mterrogatories, cross-interrogatories, and  :

l answers shall be recorded and signed, and the de, position certified,* returned, '

i and filed asin the case of a'dep:ositiont.o.n oral exammat. ion. ~ I

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(g) A deposition will not become' a part of the record in the hearing .

l unless received in evidence. If only part of a deposition is offered in evidence l by a party, any other A party shall'not i be deemed .t,o make a, party may introduce any other parts. person his own witness for ai!

l deposition.

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(h):A depon,ent whose deposition is taken and the officer taking a deposi-tion shall be entitled to the same fees as are paid for like services in the district p'

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i courts of the United States, to be paid by *the party at whose instance the

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I deposition is taken.'il.' * .1 ^ ( ..A 1. . i ; ;- . . .

1 5238 IO CFR 5 2.740m c 197s, commerce clearing House, Inc. '

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les s a-ts .. Part 2-Rules of Practice 7145

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(i) The witness may be accompanied, represented, and advised by legal [

counsel. I i

, (j) The provisions ~ of pamgraphs (a) through (i) of this section are not i j applicable to NRC personnel. Testimony of NRC prennel by oral exami- I j

nation and written interrogntories addressed to NRC personnel are subject ,

to the provisions of } 2.720(h). ,

j e 1972,[Sec.

effective 2.740a, Augustpreviously 28,1972 (373ec. 2.740, asprior F. R.15133); redesignated to redesignation and amended Sec. July 21, ,

1970, effective December 23,1970 (35 F. R.  :

2.740 19500); was amended amended December April 26,1978, c 21'ffective May 26,1978 (43 F. R.17802).] l ,

I

[$ 5239] l j

' Sec. 2.740b. Interrogatodes to parties.-(a) Any party may serve upon any other. party (other than the staff)

• written interrogatories to be an- l l swered in writmg by the party served, or private corporation or a partnership or.or if the association, by party any officer served is a pubhcl or agent who shall furnish such information as is available to the party. Acopyof [e the interrogatories, answers, and all related pleadings shall be filed with the  ;

' Secretary of the Comndssion and shall be served on the presiding officer and t upon all parties to the proceeding.

• l j (b) Each interrogator i under oath or affirmation,y shall unless it is beobjected answered to, inseparately which event and t iefully'in reasons wdting for objection shall be stated in lieu of an answer. The answeis shall be l  !

signed by the person making them, and the objections by the attorney making

them. The party upon whom the interrogatories were served shall serve

,. a copy of the answers and objections upon all parties to the prc.cceding within j t 14 days after service of the mterrogatories, or within such shorter or longer

( '. period as the presiding officer may allow. Answers may be used in the same n ,

manner as depositions (see i 2.740a(g)). '

i

[Sec. 2.740b as added July 21,1972, effective August 28,1972 (37 F. R. l [

15134); amended efrective March 3,1975 (40 F. R. 8777).] ' .  !

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[V 5240] i Sec. 2.741 Production of documents and things and entry upon land for  !

Inspection and other purposes.-(a) Request for discovery. Any party rnay serve on any other party a request to: , ,

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I (1) Produce and permit the party making the request, or a person acting '

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on his behalf, to inspect and copy any designated documents, or to inspect and .

i l copy, test, or sample any tangible thmgs which are within the scope of [ 2.740 -

and which are in the posses,sion, custody, or control of the party upon whom  !

the request is served; or .

l , (2) Permit entry upon designated land or other property in the posses- [

, sion or control of the party u .

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of mspection and measunng,pon surveying, wh,om the request photographing, i,s served, testmg, or samphng for the purpose ,

I (., the property or any designated object or operation thereon, within the scope

of i 2.740. . l I

.._ _ l (b) Scrvice. The request may be served on any party without' leave of *

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the Commission or the presiding officer. Except as otherwise provided in l -

g 2.740, the request may be served after the proceeding is set for hearing. -

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, (c) Content.r. The request shall set forth the items to be inspected I* l either by individual item or by category, and describe each item and category -

' Interrogatories addressed to the star are [ ,

tubject to i 2.7ll0(h)(2)(ll). -

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, Nuclear Regulation Reports 10 CI*R $ 2.741 15240 (* . ' , jP~- [

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t 7246 Regulations--Nuclear RegulatoryC vnmirston ses ssas with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and }wrforming the related acts.

(d) Response. The party upon whom the request is served shall serve ( i on the party submitting the request a written response within thirty (30) \

days after the service of the request. The resp (mse shall state, with respect 3

to each item or category, that inspection and related activities will be per-  !

mitted as requested, unless the request is objected to, in which case the reasons I for objection shall be stated. If objection is made, to part of an item oc cate. g

{ gory, the part shall be specified. . 3 .; , . .

(e)' NRC records and docmncnts." The p?rovisions 'of paragraphs (a) through ,

(d) of this section do not apply to the production for inspection and copying l or photographing of NRC records or documents. Production of such records I j or documents is subject to the provisions of 2.744 and 2.790. , , . 1

[Sec. 2.741 as amended December 21, 1970, effective December 23,1970 1 (35 F. R.19500); July 21,1972, effective , August 28,1972 (37 F. R.15134).]

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[U 5241]' - -

l Se$.~ 2.742.' Ad' missions.- a ~

or as a result of a prehearing(co)nference, at any tirne after his answer hasAp '

been filed, a party may file a written request for the admission of the' genu- t ineness and authenticity of a'ny relevant document described in or attached i ,

to the request, or for the* admist; ion of the truth of any specified relevant matter of fact. A copy of the document shall be delivered with the request unless a copy has already been furnished.

(b) Each requested admission shall be deemed made unless, within a time , ,

j designated by the presiding officer or the Commission, and not less than ten (10) days after service of the request or such further time as may be allowed ( j on motion, the party to whom the request is directed serves on the requesting -

l party either (1) a sworn statement denying specifically the relevant matters of -

which an admission is requested or setting forth in detail the reasons why he ,

can neither truthfully admit nor deny them, or (2) written objectioris on the .

. ground that some or all of the matters involved are privileged or irrelevant or i that the request is otherwise improper in whole or in, part. Answers on I matters to which such objections are made may be deferred until the objec- i tions are determined. If written objections are made to ont request, the remainder of the request shall be answeredime within the t,y a part of a designated.

(c) Admissions obtained p'ursuant to the procedure l'n this section may I I be used in evidence to the same extent and subject to the same objections as ,

other admissions. ,, , . ,

, , , j l [Sec. 2.742 as amended July 21, 1972, effective August 28, 1972 (37. I-F. R.15134).] , . , _ -

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...', .. ' . . . [U 5242) , ' , , ' ' . ~ . , , (' , , , ' .

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(h Sec. 2.743. Evidence.-(a) Cencral. Every party to a proceeding shall have the right to present such oral or documentary evidence and rebuttal t evidence and conduct such cross-examination as may be required for full and l true disclosure of the facts. 3 .-  : . -

i t (b) Written testimony. The parties'shall submit direct testimony of w'it ' h, ~

nesses in written form', unless' othenvise ordered'hy t'he presiding ofTicer on j the basis of objections presented. In any proceeding in which advance writ- ,-

ten testimony is to' be used, each party shall serve copies of its proposed ( j l' .

written testimony on each other party at least fifteen (15) days in advance of \/ I the session of the hearing at which its testimony 'is to be presented..The .

15241 10 CTR 5 2.742 @ l978, Commerce CIcaring House,Inc.;

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t ses s s ts Part 2-Rules of Practice 7147 l i

r presiding ofTicer may permit the introduction of written testimony not so  ;

served, cither with the consent of all parties present or after they have had  !

a reasonable opportunity to examine it. Written testimony shaft be incor- ,

• porated in the transcript of the record as if read or, in the discretion of the 'l presiding officer, may be offered and admitted in evidenu as an exhibit. '

.rhis paragraph does not apply to proceedings under Subpart B for modi 6- I  !

cation, suspension, or revocation of a. license. -

) I e '(c) Admissibility. 'Only relevant, material, and reMable evidence which is  ;

not unduly repetitious will be admitted. Immaterial or irrelevant parts of so far as is practicable. l i / ' anI admissible docum, ent will be segregated and excluded ., .

(- . .

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(-,d) Objectio..ns; An objection 1. .o evidenEe shall briefly state the grounds  ; '

of objection. The transcript shall include the objection, the grounds, and the '

ruling. Exception to an.' adverse ruling is preserved without notation on the

I record.

i (e) Ofer of fre'f. An offer of proof mhfe in connection with an objec- l i

tion to a ruling of Tae presiding officer excluding or, rejecting proffered oral I testimony shall consist'of 'a stateme'rit of the substance of the proffered evi-I dence. If the excluded evidente is' written,' a (opy shall be' marked for identi- i ,

fication. Rejected. exhibits,' adequately" marked for identification, shall'be j  !

retained in the' rec'ord. ' '

,. [(  ;

I  !

i (f) Exhibits. A written exhibit will not be received in evidence unless the '

i original and two copies are offered and a copy furnished to each party, or the  ;

parties have previously been furnished with copies or the presiding officer directs otherwise. The presiding officer may permit a party to seplace with l a true copy an original document admitted in evidence. I o (g) Proceedings indolving applications. In any procecding involving an application, there shall be offered in evidence by the staff any report submitted l 7 by the ACRS in the proceeding in compliance with section 182b. of the Act, I <

any safety evaluation prepared by the staff and any Detailed Statement on i

' environmental considerations prepared by the Director of Nuclear Reactor I Regulation or the Director of Nuclear Material Safety and Safeguards, as l appropriate, or, his. designee in the. proceeding pursuant ta Part 51 of this chapter.

(h) GJicial record. An official record of a government agency or entry in ,

an offic,ial record may be evidenced by an official publication or by a copy l .

attested by the officer having legal custody,of the record.and accompanied by a certificate of his custody. . , ....... . c' ,

e ,

.... .. . . . . l '

. . (i) Oficial notice.,. (1)'The . Commission or the presiding ofiicer inay take' -

official notice of an'y fact of which a court of'the United States inay,take '

l Judicial notice c4 of any technical or scientific fact.,within the' knowledge of l ,. the Commission as an expert body. Each fact officially" noticed 'under this j

, ('

\

subparagraph shall be specified in the record with sufficient particularity to I i

' - advise the parties of the matters which have been noticed or brought to the

attention ~of the parties before final decision and each party adversely affected l by the decision shall be given opportunit to controvert the fact. l . j i - (2) If a decision is stated to rest in whole or in part on official notice l

of a fact which the parties have not had a prior opportunity to controvert, a ,

party may controvert the fact by exceptions to an initial decision or a peti-g tion for reconsideration of a final decision clearly and conc;isely setting forth f the information relied upon to show the contrary. ,

Nuclear Reblation Reports . 10 CTH 5 2.743 1s242 ,. ,..

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7148- Regulations--Nuclear Regulatory Commission us s-sas ,

lSec. 2.743 as amended S(ptember 4,1963, effective September 17,1963 (28 F. R.10151); March 3,1966, effective April 11,1966 (31 F. R. 4339);

arnended July 18, July 1974,21, .1972,August effective effective August 19,1974 (3923,1972 (37 F.amen F. R. 26279); R.15134)ded 26, April 1978, ( l effective May 26,1978 (43 F. R.17802).]

l

[ 5243] i  !

l ,

Sec. 2.744. Production of NRC records and documents.-(a) A request l, l

roduction of an NRC record or document not available pursuant to i for 1 2.790 the [y a party to an initial licensing proceeding may be serv,ed on/_ the I l

l 2xecutive Director for Operations without leave of the Commission or the t l

presiding omeer. The request shall set forth the records or documents re- i  ;

I quested, either by individual item or by category, and shall describe each item 5 or category with reasonable particularity and shall state why that record or ,  ;

document is relevant to the proceeding, ,

(b) If the Executive Director for Operations objects to producing a re-  ;

I quested record or document on the ground that (1) it is not relevant,or (2) l  :

i it is exempted from disclosure under $ 2.790 and the disclosure ,is not necessary ,

to a , proper decision in the proceeding or the document or the information ,

! therem is reasonably obtainable from another source, he shall so advise the  ;

I requesting party. , j (c . j

record)or document, the requesting party may apply to the presiding omcer,If the Execul in writing, to compel production of that record or document. The application l shall set forth the relevancy of the record or document to the issues in the -

. lication shall be processed as a motion in accordance with  ;

j proceeding.

g 2.730(a) through The ap[d). The record or document covered by the application / I .

shall be produced for the "in camera" inspection of the presiding oGcer, (  ;

, exclusively, if requested by the presiding omcer and only to the extent neces-  ;

sary, to determine- ,

{

(1) The relevancy of that record or document; ,  !

l (2) Whether the document is exempt from disclosure under g 2.790;- t l

(3) Whether the disclosure is necessary to a proper decision in the l

proceed, m g; l (4) Whether the document or the information therein is reasonably ' l obtainable from another source. . .' j j (d) Upon a determination by the presiding omcer that the requesting l party has demonstrated the relevancy of the record or document and that  !

its production is not exempt from disclosure under g 2.790 or that, if exempt, ~

t l its disclosure is necessary ta a proper decision in the proceeding, and the .._e ... j document or the information therein is not reasonably obtainable from an-  !

other source, he shall order the Executive Director for Operations to produce the document. - - , - -- i

'(e),[ Deleted.] #

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l l (f) A' ruling by' the presiding omcer, the Atomic Safety and Licensing i l Appeal Board, or the Commission for the production of a record or docu-ment will specify the time, place, and manner of production. l -- 7 j (g) No request pursuant to this section shall be made or entertained c,; '

before the matters in controversy have been identified by the Commission l i or the presiding officer, or after the beginnin'g of the prehearing conference i i held pursuant to j 2.752 except upon leave of the presiding officer for good / l, t

! cause shown. 2. .-  ;. .

T5243> 10 CTR 5 2.744 @ l978, Commerce Clearing House, Inc.

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(h) The provisions of 2.740(c) and (e) shall apply to production of ,

NRC records and documents pursuant to this section. t i (Sec. 2.744 as added December 21, 1970, effective December 23. 1970 j ,

(35 F. R.19500); as amended July 21, 1972, effective August 28, 1972 (37 l

. F. R.15135); amended January 17, 1975, effective February 18, 1975 (40 .

F. R. 2974) ; amended effective March 3,1975 (40 F. R. 8777).)  ;

I l'  !

Summary Disposition on Pleadings l l e [g 5244] f Sec. 2.749. Authority of presiding officer to dispose of certain issues on l j the pleadings.-(a) Any party to a proceeding may, at least forty-five (45)  ;

days before the time fixed for the hearing, move, with or without rupportmg  !

affidavits, for a decision by the presiding officer in that party's favor as to }

all or any part of the matters involved in the proceeding. There shall be 1 annexed to the motion a separate, short and concise statement of the material l facts as to which the movmg party contends that there is no genuine issue  !

to be heard. Any other party may serve an answer supporting or opposmg  ;

the motion, with or without affidavits, within twenty (20) days after service l of the motion. There shall be annexed to any answer opposmg the motion i a separate, short and concise statement of the material facts as to which it .

is contended that there exists a genttine issue to be heard. All material facts l .

4 set forth in the statement required to be served by the moving party will be  !

deemed to be admitted unless controverted by the statement required to be .

served by the opposing party. The presiding officer shall permit the opposing l r party an opportunity to respond in writing to new facts and arguments  ;

presented in any supporting statements which were not presented in the

_,, papers of the moving party. Any such response shall be served within such I time limits as the presiding officer may establish and shall address only the f new facts and arguments presented in the supporting statement. No further i supporting statements or responses thereto shall be entertained.

l l (b) Affidavits shall set forth such facts as would be admissiblein evidence

, and shall show affirmatively that the affiant is competent to testify to the p.

j matters stated therein. The presiding officer may permit affidavits to be sup- I i

} plemented or opposed by depositions, answers to interrogatories or ftirther j i affidavits. When a motion for summary decision is made and supported as ,

i provided in this section, a party opposing the motion may not rest upon the -

[

mere allegations or denials of his answer; his answer by affidavits or as -

t otherwise provided in this section must set forth specific facts showing that --

here is a genuine issue of fact. If no such answer is filed, the decision sought, E...._.' ... . +

if appropriate, shall be rendered.  !

(c) Should it appear from the affidavits of a party opposing the rnotion . m ..m. j p

1 j that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the presiding officer may refuse the application for summary

~_.,. p i-  !

decision or may order a continuance to permit affidavits to be obtained or '  !

make such other order as is appropriate and a determination to that effect l ... . j shall be made a matter of record. 'L -

' ~

(d) The presiding officer shall render the decision sought if the filings in I l - the proceeding, depositions, answers to interrogatories, and admissioras on

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[The next pge is 7149-3.] .

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. Nuclear Regulation Repods 10 CTR 5 2.749 1s244 L M .'..-

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