ML20003F795

Request for Reconsideration of ASLB 810330 Order Denying Ororke Deposition.Deposition Would Reveal GE Failure to Show Good Cause for GE Request for Protective Order. Certificate of Svc Encl

ML20003F795
Person / Time
Site:	Bailly
Issue date:	04/13/1981
From:	Vollen R IZAAK WALTON LEAGUE OF AMERICA, PORTER COUNTY CHAPTER, VOLLEN, R.J. & WHICHER, J.M.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8104230604
Download: ML20003F795 (2)

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NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ',

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In the Matter of NORTHERN INDIANA PUBLIC

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Docket No. 50-367 I 'E,

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(1) MOTION g APR 16198;, b PORTER COUNTY CHAPTER INTERVENORS' TORECONSIDERMEMORANDUMANDORDEROFMARCH30,edC,:

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1981 DENYING O'RORKE DEPOSITION; AND, (2) COM-PLETION OF ANSWER IN OPPOSITION TO GENERAL g

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ELECTRIC'S MOTION FOR PROTECTIVE ORDER

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The Board's Memorandum and Order of March 30, 1981, denied Porter County Chapter Intervenors ("PCCI") the opportunity to depose the General Electric employee whose affidavit was submitted as the sole basis for GE's motion for a protective order, and directed that PCCI complete their answar to th'ac-'

mo tio n.

PCCI, by their attorneys, hereby (1) respectfully move the Board to reconsider the denial of the opportunity to depose Mr. O'Rorke, and, (2) complete their answer in opposition to the

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General Electric motion.

(1)

Motion to Reconsider In denying PCCI the opportunity to depose Mr. O'Rorke, the Board has misconceived the reason for the initiation of that discovery and overlooked its potential impact.

PCCI does not seek " discovery on discovery" as the Board has characterized it.

Rather, we seek discovery to demonstrate that GE has failed 503 to statain its burden of demonstrating good cause for, and 9

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. and that justice requires, the granting of the extraordinary remedy of a protective order which it seeks.

In suggesting that the taking of Mr. O'Rorke's testimony "is not covered directly by the NRC rules", we believe the t

Board has misconceived the scope of discovery authorized by the rules.

Ten CFR 52. 740(b)(1) permits " discovery regarding any matter... which is relevant to the subject matter involved in the proceeding...."

The GE contracts, and hence their discover-ability, clearly are relevant to the subject matter of this p roceeding.

Moreover, the fact that discovery is specifically authorized to learn of such things as the existence and location of documents (id.) amounts to a clear negativing of the view that discovery may only concern the " merits of the proceeding",

as that phrase is used in the Memorandum and Order (pp. 3-4).

In expressing its difficulty in discerning any prejudice to intervenors' interest should it grant GE a protective order, the Board has misconstrued the public nature of Commission proceedings.

The starting premise is and should be that all aspects of NRC proceedings, including information furnished in discovery, are open and public.

A party seeking a deviation from that premise has the burden of establishing its right to it.

A party seeking discovery in the normal and public manner need not show prejudice from his failure to receive it, nor should the burden be shifted to such a party to show that lifting the restriction of a protective order is "necessary to the prosecution of their case."

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. Finally, the Board may have overlooked the apparently.very real possibility that Mr. O'Rorke's deposition might demonstrate facts to moot the entire basis of the claim for a protactive order. Jtr. O'Rorke 's affidavit indicates that the contracts in l

question were filed with the Securities and Exchange Commission by NIPSCO.

It also indicates that GE has subnitted affidavits to the SEC in support of the contracts being withheld from public disclosure.

It does not, however, indicate whether the SEC has agreed to withhold them.

If the SEC has not, and if the contracts are a matter of public record, then there is patently no legitimate basis for a protective order.

PCCI should be permitted to learn from Mr. O'Rorke what the facts are in this regard.

For the foregoing reasons, PCCI urge the Board to recensider s

its ruling denying them the opportunity to take the deposition of Mr. O'Rorke on the subjects in his affidavit.

Such limited discovery would not delay this prcceeding.

(2)

Cemalecion of Answer in Opposition to Motion For Protective Order Should the Board decide that some sort of protective order is to be entered, clearly it should not be the proposed form of order attached to GE's motion.

That form of order is in no way tailored to this dispute, these contracts, or this proceeding.

3 Any order entered here should be tailored to the facts of this

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dispute.

GE's proposed form of protective order is unduly and prejudi-cially restrictive and could effectively prevent PCCI from preparing their case.

For example:

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It denies access to the contracts, and any information they contain, to the parties, and permits access only to counsel.

(b)

It prohibits disclosure even to any consultants and experts who may be retained by PCCI to aid them in analyzing the information obtained from these contracts.

(c)

It requires that inspection shall be at a time and place " mutually convenient to the Intervenor's counsel and GE" -- not to PCCI's counsel and NIPSCO, in whose possession the contracts are, from whom production has been requested,

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and who is located near Chicago, as compared to GE's locat?.cn in :3an Jose, California.

No reason is suggested why a time and place certain for production should not be ordered.

(d)

It prohibits even photocopying of the contracts, apparently contemplating that counsel for PCCI copy by hand any infc =ation which they seek from the documents.

It is not surprising thac no reason is offered by GE for this absurd requirement, for none is conceivable.

(e)

It negates the possibility of even non-sensitive information being put into the public record of this proceeding.

Any order should be limited only to that e

. information within the contracts, if any, which the. Board finds to be entitled to protection.

(f)

It requires the distruction of notes and data at the conclusion of this proceeding, without regard to possible appeals or subsequent proceedings.

Should the Board enter a protective order, it should disregard the proposed form submitted by GE and formulate one which would provide reasonable and appropriate protection for only such information which GE proves in advance is entitled to protection.

DATED:

April 13, 1981 Respectfully submitted, Robert J. Vollen Jane M. Whicher By:

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Robert J. Vollen Attorneys for Porter County Chapter Intervenors Robert J..Vollen Jane M. Whicher 109 North Dearborn Suite 1300 Chicago, Illinois 60602 (312) 641-5570

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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0!O!ISSION 9

ccte :t BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 6196I ' [1 pg i

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In the Matter of

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NORTHERN INDIANA PUBLIC

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Docket No. 50-367 C)

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(Construction Permit (Bailly Generating. Station,

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Extension)

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CERTIFICATE OF SERVICE I hereby certify that I served copies of the Porter County Chapter Intervenors' (1) Motion To Reconsider Memorandum and Order of March 30, 1981, Denying O'Rorke Deposition; and (2) Completion of Answer in Opposition to General Electric's Motion for Protective Order, on all persons on the attached Service List, by causing them to be deposited in the U.S.

mail, first class postage prepaid, on April 13, 1981.

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9 RobertJ.Vo[len One of the Attorneys for Porter County Chapter Intervenors Robert J. Vollen Jane M. Whicher c/o BPI 109 North Dearborn Chicago, Illinois 60602 (312) 641-5570 S

SERVICM U ST Herbert Grossman, Esq.

George & Anna Crabewshi Administrative Judge 7413 N.

136th Lane Atomic Safety & Licensing Cedar Lake, Indiana 46301 Eoard Panel U.S. Nuclear Regulatory Dr. George Schult:

Commission 807 E. CoolsprinaRoad Washington, D.C.

20555 "ichinan City, Indi.ma 46350 Dr. Robert L. Holton Richard L. Robbins, Esq.

Administrative Judge i.ahe Michio,an Federation School of Oceanography S3 U. Jackson Boulevard Oregon State University Chicago, Illinois 60004 Corvallis, Oregon 97331 Mr. Mike 013 anski Mr. Clifford Meno Local 1010 - United Steel'; rvers Dr. J. Venn Leeds of America Administrative Judge 3703 Euclid Avenue 10807 Atwell East Chicago, Indiana 4 :,li '

Houston, Texas 77096 Steven C. Goldberg, Esq.

Of fice of the Executive Legal Director U.S. Nuclear Regularcry Cc--issio a

Maurice Axelrad, Esq.

Washinr, ton, D.C.

20355 Kathleen H. Shea, Esq.

Lowenstein, Newman, Reis, Anne Rapkin, A.s s t. Attornev Gene-Axelrad and Toll John Van Vranken, Er.v ironce" t a l 1025 Connecticut Ave., N.U.

Control Division

'iashington, D.C.

20036 133 U.

Randolph - Suite 23*5

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Chicago, Illinois 60601 William H. Eichhorn, Esq.

l Eichhorn, Eichhorn & Link Docketing & Service Section 5243 Hohman Avenue Office or the Secretary Hammond, Indiana 46320 U.S. Nuclear Regulatcry Cc nissi.

Wa shin;; ton, D.C.

2r,355 Diane B. Cohn, Esq.

l William P. Schultz, Esq.

Stephen Laudig, Esq.

Suite 700 2l010 Cumberland Road 1

2000 P Street, N.W.

Noblesville, Indiana 460C0 Washington, D.C.

20036 George L. Edgar Atomic Safety & Licensing Kevin P. Gallen Board Panel Morgan, Lewis & Bockius U.S. Nuclear Regulatory Cov. mission Suite'700 Washington, D.C.

20555 1800 M.St.,

NW Washington, D.C.

20036 Atomic Safety and Licensing, Edward A. Firestone, Esq.

Appeal Board Panel U. S. Nuclear Regulatory Comni:.. i on General Electric Company Eashington, D.C.

20555 175 Curtner Avenue M/C 823 San Jose, CA 95125 P00R ORIGINAL

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