ML20062B809

Response to Northern Thunder,Inc Motion to Compel Discovery. Interrogatories 2,3,4 & 5 Related to Contentions Explicitly Rejected as Issues in Controversy in Proceeding & Are Irrelevant.Denial Requested.Certificate of Svc Encl

ML20062B809
Person / Time
Site:	05000484
Issue date:	10/18/1978
From:	Lewis S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:
References
NUDOCS 7811010148
Download: ML20062B809 (6)

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UNITED STATTh 0F AMERICA NUCLEAR REGUI \ TORY C0PMISSIOil 10/18/78 BEFORE THE ATOMIC SAFETY Afl0 LICEtiSING BOARD In the Matter of

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NORTHERN STATES POWER COMPANY Docket flo. STN 50-484 (MINNESOTA) AND NORTHERN STATES .- ff~ S'%

POWER COMPANY (WISCONSIN)

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, I /,N (Tyrone Energy Park, Unit 1) )

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• d'>~ [5 NRC STAFF RESPONSE TO "MOTI0ft BY NORTHERN S-). 7 4...t / h THUNDER, INC. TO COMPEL DISCOVERY" I. INTRODUCTION

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w' s is Pursuant to 10 CFR 12.730(c) the NRC Staff files this response to the

" Motion by Northern Thunder, Inc. to Compel Discovery", dated September 28, 1978. The motion, which is directed at both the Permittees and the Staff,

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has been brought by Northern Thunder ("NT") pursuant to 10 CFR 62.740(f).

As it pertains to the Staff, NT states two bases for its motion. Tilefirst

(, is that the Staff failed to apply for a protective order under 10.CFR 12.740(c) <

andis,therefore, pursuant 12.740(f)requiredtorespondtothe!'nterrogatories i in question. The second is that the interrogatories are, contrary to the l

l Staff's position,..re, levant to paragraph 1 of the Board Contention. .

.II. ARGUMENT l

The Staff's position can best be understood by censidering first the question of relevancy. In framing its centention on financial qualifications, the Licensing Board specifically noted that:

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.. . "The Appeal Board-clearly intends for us to

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consider only those aspects of the permittecs' financial and technical qualifications which flew from the changes in the legal relationships of the co-applicants. 1,/

Thus, the Board Contention begins with the following words:

Because of the withdrawal of NSP-M as a direct owner of Tyrone, the permittees do not have the financial qualifications to design and construct Tyrone Energy Park Unit 1 in that . . 2/

Paragraph 1 of the Board Contention, which states that "NSP-M will be unable to transfer funds to NSP-W", therefore clearly relates to the NSP-M withdrawal as a co-owner. NT's interrogatories 2, 3, 4, and 5, to which the Staff objected, 3

relate, however, to the application of the Public Utility Holding Company Act 3/ 4/

to NSP-M. NT had earlier filed contentions (1.E and 2.E')which sought to in-ject into the remand proceeding the question of the possible impact on NSP-

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M's ability to transfer funds to NSP-W and Lake Superior District Power Co.

(LSDP) should NSP-M become non-exem't p under the f.ct as a result of its acquisition

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1/ " Memorandum and Order Concerning Northern Thunder's Contentions on Remand d Matters", July 28, 1978, at 2.

2/ljl.at12.

3/ Contention 1.E reads:

NSP-MN intends to purchase all or substantially a;i of the outstanding stock of Lake Superior District Power Co. (LSDP). If such transaction is consumated, NSP-MN will be. a non-exempt regulated public utility holding company under the Public Utility Holding Ccmpany Act of 1935. As a result, transfer of funds between NSP-MN and NSP-WI will be illegal. Consequently NSP-MN will be unable to transfer to NSP-WI, in the form of loans or equity purchases, funds sufficient to enable NSP-WI to cover the portion of construction costs it expects to cover witn funds derived from NSP-MN.

4/ Contention 2.E reads the same as Contention 1.E, except that it refers to

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transfer of funds to LSDP and, hence, the financial qualifications of LSDP.

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I of LSDP. The Board explicitly rejected Contentions 1.E and 2.E. While acknowledging that Contention 1.E might theoretically be relevant to the issue of NSP-W's ability to raise funds from the sale of additional stock to its parent, the Board held that "the connection depends upon too many 6/

implausible and speculative links to be sustained". After noting the same deficiency in Contention 2.E the Board found this contention "even ,

further removed in relevance to the remanded issues because LSDP itself does 7/

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not pertain to the remand except as a surviving permittee".

r In light of the Board's order, interrogatories 2, 3, 4, and 5 relate to contentions which the Board has already explicitly ~ rejected as' issues in con-troversy in this remand proceeding. These inte#rrogatories are not, therefore, relevant to this proceeding, nor are they reasonably calculated to lead to the discovery of admissible evidence. For these reasons, the interrogatories

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are beyond the permissible scope of discovery in Comission proceedings.~

NT also asserts that the Staff had to accompany its objection to the interro-gatories with a request for a protective order. NT relies upon the provision 5/ ' July 28, 1978 Memorandum and Order at 3-4, 5. -

6/ Id. at 4.

7/ Id. at 5.

8,f 10 CFR 12.740(b).

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! of 32.740(f) that a failure to answer an interrogatory shall not be excused on the basis of an objection filed to it unless the objecting party has applied for a protective order under 12.740(c). The mechanism of !2.740(c) .,

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does not, however, appear appropriate to the Staff in view of the type of objection we interposed. It is not the Staff's position that answering the

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interrogatories would entail " annoyance, embarrassment, oppression, or undue burden or expense". Rather, our objection is based squarely on grounds of relevancy. Should our objection be overruled, we would not seek any of the protectionsavailableunder12.740(c). We do not, therefore, believe that a request for a protective order had to accompany our objection.

Conclusion /

For the reasons noted above, the Staff believes that its objections to interro-gatories 2, 3, 4, and 5 were proper and requests that NT's motion be denied.

Respectfully submitted, Stephen7H. Lewis Counsel for NRC Staff l

t I DatedatBethes'da,$aryland this 18th day of October, 1978.

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I ONITED STA'TES'0F AMERICA l' NUCLEAR REGULATORY COMMISSION ,

' BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of , ,,

NORTHERN STATES POWER COMPANY Docket No. STN 50-484~

(MINNESOTA)ANDNORTHERN STATESPOWERCOMPANY(WISCONSIN)

(Tyrone Energy Park, Unit 1) 4

- CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO ' MOTION BY NORTHERN I

THUNDER, INC. TO COMPEL DISCOVERY'", 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, through deposit in the Nuclear Regulatory Commission's internal mail system, this 18th day of October,1978:

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• Ivan W. Smith, Esq., Chairman Jocelyn F. Olson, Esq. ,

Atomic Safety and Licensing Board Minnesota Pollution Control U.S. Nuclear Regulatory Commission Agency Washington, D.C. 20555 1935 W. County Road, B2 Roseville, Minne:ota 55113 Dr. George C. Anderson Department of Oceanography

s University of Washington Mr. Tom Galazen

- Seattle, Washington 98195 ' gg.R 6

• Mr. Lester Kornblith, Jr. Turtle Lake, Wisconsin 54889 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Michael J.'Cain, Esq.

Washington, D.C. 20555 Bureau of Legal Services .

.- v Department of Natural Resources .

Gerald Charnoff, Esq. Box 7921 Shaw, Pittman, Potts & Trowbridge Madison, Wisconsin 53707 1800 M Street, NW.

. Wash i ngton, D.C. 20036 .

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Tyrone Energy Park .

Mr. Stanley Cider Barbara J. Willard, Esq.

. c/o Durand Postmaster Public Service Comission of Tyrone, Wisconsin 54736 Wisconsin .

Hill Farms State Office Bldg.

• Atomic Safety and Licensing 4802 Sheboygan Avenue Appeal Board Madison, Wisconsin 53702 U.S. Nuclear Regulatory Comission

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Washington, D.C. 20555 Mr. Edward Gold ~ -

814 4th Street

• Atomic Safety and Licensing Mencmonie, Wisconsin 54751 Board Panel U.S. Nuclear Regulatory Comissinn Richard Ihrig, Esq.

Washington, D.C. 20555 400 Exchange Building 4th and Center

• Docketing and Service Section ' Winona, Minnesota 55987 Office of the Secretary U.S. Nuclear Regulatory Comission Washington, D.C. 20555 .

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P Step (en H. Lewis Counsel for NRC Staff 7

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