ML20039C693

Discusses Licensee 811209 Motion for Dismissal of Wi Environ Decade.Motion Is Really Motion to Compel Discovery.Discovery Cannot Compel Opposing Party to Produce Something Which Does Not Exist

ML20039C693
Person / Time
Site:	Point Beach
Issue date:	12/22/1981
From:	Patricia Anderson WISCONSIN'S ENVIRONMENTAL DECADE
To:	Bloch P, Kline J, Paxton H Atomic Safety and Licensing Board Panel
References
NUDOCS 8112300048
Download: ML20039C693 (2)

Text

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-,pG December 22, 1981 .gg gf,28 Peter B. Bloch, Chairman #

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.y"sNM Atomic Safety & Licensing Board M,'

• jam CB U. S. Nuclear Regulatory Commission Washington, D. C. 20555 p . DG

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n in Dr. Hugh]. Paxton 1,, gDE c 4 9 7pg g pc 1229 -41 Street .

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g Dr. Je r ry R. Kline 7,I7 ' -* gM Atomic Safety & Licensing Board /

U. S. Nuclear Regulatory Commissio,n Washington, D. C. 20555 Re: Wisconsin Electric Power Company '

Point Beach Nuclear Plant Dockets 50-266 and 50-301 Operating License Amendment (Steam Generator Tube Sleeving)

Gentlemen:

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Reference is made to Licensee's " Motion for Dismissal of

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Intervenor Wisconsin's Environmental Decade, Inc.," dated December 9, 1981, and to Licensee's " Amendment to Motion for Dismissal of Intervenor Wisconsin's Environmental Decade, Inc.,"

dated December 11, 1981, in the above-matter.

Counsel does n'ot cite any provision in the Co mm i s s i'o n 's practice procedures that would provide for a " motion'for dismissal", nor are we aware of any.

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! It would appear from an examination of the Licensee's documents, however, that the intent is to file a motion to compel discovery per 10 C.F.R. S2.740 (f) .

Without waiving our right to be f ully inf ormed as to the basis for the relief being sought and to formally reply thereto, this is to make the follouing short comment.

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$0 The essential grounds of Licensee's complaint is that.we

y. have only responded to its discovery requests with those matters uhich have been assembled by us at timt tise. Sec Motion, at 4.

gg l no llegarding matters being pursued by us based upon our general I

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f amiliarity of -the record, we have responded with ref erence to the record as a whole and have not, in the process of preparing l

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our reply, assembled material that is not presently organized.- KO3 3

/100 When the Licensee first propounded its discovery requests, D which essentially asked'f or the basis of our entire case, prior /g to completion _of discovery or receipt of its report, we advised counsel, as commemorated to the Board, that:

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' "[T]his set of interrogatories which seek the basis for intervenor's entire case is premature in vicu of the early

. stage of this proceeding. Responding to the _ Licensee's nineteen pages of interrogatories--at this point in time--

will requie a significant diversion of limited resources to produce information that will shortly be outdated and therefore be of marginal ut'ility to the Licensea. This will make it more dif ficult f or the Decade to meet other filing requirements.

"We apprised the Licensee of this concern durihg an off-the-record telephone conference and requested that these interrogatories be held in abeyance until af ter intervenor's discovery is completed. M r. Churchill declined and stated his insistence that the matters be responded to uithin the normal 14 day period f or answering interrogatories." SCC Decade's Second Discovery Progress Report, dated November 23, 19 81, at p. 2.

Indeed, it subsequently transpired that two days ~ were consumed in answering Licensee's first set of interrogatories and another-day, for the second set.

Now that the Licensee has wasted the better part of a wedk on our part, counsel compounds.this strategy of litigation by attrition, with a highly intemperate letter that castigates our conduct.

Counsel should be advised that the position of ours which it f aults so. severely is tbc CEDGt EDGC 90GitiQD tahCD DE big CliCDt iD 9tbCE PEOGCCdiD90 when we propounded discovery questions of Wisconsin Electric. Thus, in 82 WiDGQUQiD SlCGtEiG EQWCE CQGDGDE, PSCW Docket 6630-ER-14, the Company's counsel defended its refusal to provide certain information as follows:

"Before this goes any f arther, you're (i.e. the Decade) not asking us for data which we have. You're asking us to do calculations, spend a lot of money and take a lot of time to create something which does not exist. That isn't the subject of a data request." Transcript Vol. XIII, p. 985.

We did not object to that def ense because we believe it to be the correct position that discovery cannot compel the opposing party to produce something which does not yet exist. We believed this at that time in regard to the Company's defense and we continue to believe it now in the case at bar.

Sincerely, WISCONSIN'S ENVIRONMENTAL DECADE, INC.

by --

J PETER ANDERSON W Director of Public Affairs KMF/cp-P:50266NRC.Ll4

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