ML13303A453
| ML13303A453 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 04/24/1981 |
| From: | Chandler L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8104280161 | |
| Download: ML13303A453 (13) | |
Text
0 UNITED STATES OF AMERICA
-10 NUCLEAR REGULATORY COMMISSION
- 16.
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
SOUTHERN CALIFORNIA EDISON COMPANY, )
Docket Nos.
)
(San Onofre Nuclear Generating Station, Units 2 and 3)
NRC STAFF'S ANSWER TO INTERVENOR FOE'S MOTION TO COMPEL On April 16, 1981, Intervenor Friends of the Earth, et al. (FOE) filed a "Motion to Compel Further Answers to Interrogatories Propounded by Intervenors to NRC Staff Served on February 19, 1981," (Motion) and supporting memorandum (Memorandum).
For reasons discussed below and on the grounds set forth in its objections to FOE's interrogatories, the NRC Staff (Staff) opposes FOE's Motion and requests that the Atomic Safety and Licensing Board (Licensing Board) grant the protective order requested by the Staff as part of its response to FOE's interrogatories on April 1, 1981, except with respect to interrogatory 20.
I.
FOE asserts a variety of arguments in support of its Motion. The Staff will respond seriatim.
A.
Interrogatories 1, 2, 3, 4, 5, 7, 12, 13, 14, 15, 16, 17, 19, 21, 22, 24 FOE first argues, with respect to the above interrogatories, that both Applicants and FOE have responded to interrogatories which are essentially 5I
-2 the same as those propounded by FOE to the Staff, without objection that they were burdensome or oppressive. In general, the fact that one party may have responded to an interrogatory without objection does not waive an objection for another party. Furthermore, in the specific context of FOE's February 19, 1981 interrogatories, the Staff has in fact responded to interrogatory 1 in its entirety (and without objection) and to interrogatories 2, 3, 4, 5, 7, 12, 13, 14, 15, 16, 17, 19, 21 and 24 in a full and meaningful way, in spite of the general objection noted in each.
Indeed, FOE concedes this in stating that "Staff generally objects to the interrogatory and then proceeds to state its position..." (Memorandum at 4).
Beyond this, FOE appears to complain of an apparent lack of specification of "the experts expected to testify with regard to specific information requested in the interrogatories..." (Memorandum at 4).
The Staff will offer witnesses at the forthcoming hearing who will testify in support of the Staff's position regarding this issue as set forth in the Safety Evaluation Report (SER), NUREG-0712, not necessarily on such matters as may be unilaterally perceived by FOE to be relevant and/or necessary or desirable. Those witnesses were previously identified, a fact acknowledged by FOE (Id.). If any changes in that identification should be made, the Staff will promptly advise the Licensing Board and parties.
Furthermore, insofar as FOE complains of a lack of specificity of "the facts, documents and persons upon which [or whom the] Staff relies in basing its position" (Memorandum at 5), its argument is simply without
-3 merit. The bases for the Staff's position in each of the identified interrogatories is stated either in terms of a reference to a particular section of the SER, which itself specifies the bases for the Staff's evaluation or the specific source of the information provided if other than the SER and sources stated therein.
Finally, as to FOE's query as to why any of these interrogatories is "burdensome and oppressive," the answer should be evident on its face; the information sought by these interrogatories generally was previously provided in the SER (and in the Staff's identification of witnesses). Thus, the distraction of the already overtaxed and limited Staff resources to provide duplicative information is certainly "burdensome and oppressive."
B. Interrogatories 8, 45, 46, 47 FOE's general complaint with respect to these interrogatory answers is that the Staff's response was unresponsive or evasive. (Memorandum at 5a-7).
In regard to interrogatory 8, the Staff provided the only reasonable and complete answer it could:
"This interrogatory is unanswerable." The Staff, in answering an interrogatory is entitled to and properly should answer only the specific question posed and need not interpret or improve an interrogatory to make it technically intelligible.
The burden is on the proponent of the interrogatory to assure that it is properly drafted to elicit the desired information, not on the respondent. Subsequent interpretation of this interrogatory by FOE (Memorandum at Sa) is simply too late to cure this defect.
-4 With respect to interrogatory 45, FOE asserts that the identification of USGS personnel who were involved in the operating license review is necessary and "may lead to admissible evidence."
Further, FOE suggests that such individuals "may be possible witnesses."
Regarding the first assertion, such vague statement that the names of individuals "my lead to admissible evidence" (emphasis supplied) is, without more, insufficient. Just what "admissible evidence" might such identification lead to?
As concerns FOE's second assertion - that such individuals "may be possible witnesses" -
two observations are in order. First, it is difficult to conceive of a more qualified suggestion as to such possibility and second, the Commission's regulations, specifically 10 C.F.R. § 2.720(h)(2)(i), expressly provides the manner in which Staff witnesses will be made available. See also 10 C.F.R. § 2.4(p) concerning the definition of "NRC personnel."
FOE's Memorandum in this regard is conspicuously devoid of any statement that it may attempt to have such persons compelled to appear pursuant to 10 C.F.R. § 2.720(h)(2)(i).
With respect to interrogatory 46, FOE merely states that identification of USGS personnel who were involved in evaluating the San Onofre site in connection with the issuance of a construction permit for Unit 1 is in some unidentified way related to its contention 1.
Contention 1 does not, as FOE would have the Board believe, broadly relate to the adequacy of the seismic design basis for San Onofre ab initio. Rather, it is more limited and encompasses only the adequacy
-5 of the seismic design basis in light of recent -
i.e., post construction permit - events and discoveries. See e.g., Licensing Board's Memorandum and Order, January 27, 1978 at 2. Thus, FOE's unfounded attempt to broaden the contention at this late date through the use of discovery should not be tolerated. As to the contention in fact admitted, interrogatory 46 simply has no bearing - it is not reasonably calculated to lead to the production of admissible evidence in this proceeding.
Insofar as FOE's interrogatory 47 is concerned, little need to be added to the Staff's response of April 1, 1981. However, it should be noted that FOE suggests no reason for compelling any further response from the Staff's, i.e., in what way might such identification of USGS personnel be relevant to any issue in this proceeding or otherwise be reasonably calculated to lead to the production of admissible evidence?
C. Interrogatories 20, 28, 29, 30, 31, 32, 36, 37, 38, 39, 40, 41, 42, 43, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60 Under a single heading suggesting the desirability of liberal discovery, FOE groups a variety of interrogatories which, as a general proposition, were objected to by the Staff as seeking information which is beyond the scope of the admitted contentions.
Interrogatory 20 relates to the possibility of ground displacement at the San Onofre site. In its Memorandum, FOE suggests that such potential is within the ambit of its contention 1 in that "ground displacement...could cause ground motions in excess of the design criteria."
(Memorandum at 8.)
Although the Staff continues to be
-6 unclear as to the meaning of this interrogatory and thus believes it to seek information outside the scope of contention 1, the Staff will provide an answer to this interrogatory by May 8, 1981.
Concerning interrogatories 28, 29, 30, 31 and 32, all of which relate to the so-called Bolsa Island Report, little more need be said than is already set forth in the Staff's objections to these interrogatories. What does warrant note, however, is the fact that in none of these interroga tories does FOE seek technical information regarding this Report. Rather, the information and admissions sought relate solely to the notification given and use made of Bolsa Island Report in the construction permit proceeding relating to San Onofre Nuclear Generating Station, Units 2 and 3 (except interrogatory 32).
Firstly, in regard to Interrogatories 28-31, FOE has not, until the instant Motion, suggested that it was seeking admission.
Secondly, in spite of FOE's argument (Memorandum at 9) that the Bolsa Island Report may have technical relevance to this proceeding, that is not the thrust of any of these interrogatories - none seeks technical information.
In any event none of these interrogatories seeks information of any kind related to post-construction permit events or discoveries; thus, FOE's assertion that the Report may be "relevant new evidence" (Memorandum at 10) is misplaced. Finally, to the extent that interrogatory 32 seeks an admission pertaining to this proceeding, it seeks an admission as to a matter of law, not fact, and thus falls outside the provisions of 10 C.F.R. § 2.742 which governs admissions and, therefore, is improper.
-7 Interrogatories 36 and 40 relate to the structural adequacy of the plant design in general and the spent fuel pool for San Onofre 2 and 3, respectively. As noted by FOE, the Staff objected to interrogatory 36 on the grounds that it seeks information beyond the scope of any admitted contention. In support of its position, FOE cites a portion of the Licensing Board's Memorandum and Order of January 26, 1981, ruling on motions for summary disposition (Memorandum at 11).
FOE, however, supplies emphasis to the wrong portion of the decision which it quotes.
More appropriately emphasized is that portion which determines that the capability of the structures and equipment to withstand the correct safe shutdown earthquake may be considered under contention 1 only "if, after hearing, it has been established that the correct safe shutdown earthquake has not been assigned to SONGS Units 2 and 3..."
(Id.,
emphasis added).
Such conditional relevance is clearly contingent upon a threshold finding and only then might discovery, as requested by interrogatory 36, be proper.
In support of interrogatory 40, FOE quotes extensively from the transcript of the July 17, 1980 prehearing conference in this proceeding.
Nowhere in the portions cited is there any determination by the Licensing Board that this type of information may be relevant to any contention in this proceeding. At most, the cited portions may establish that counsel for the Applicants may be willing to respond gratuitously to discovery on this subject. Further, Staff counsel 's silence can in no way be taken as assent to this suggestion.
- Indeed,
-8 in context, silence should not have been unexpected since counsel for FOE's introductory remarks on this subject, found at Tr. 229 and cited in FOE's Memorandum (at 14) states very clearly the purpose of the discussion which follows, namely that he was identifying a number of contingent concerns which might later be raised as new contentions. Had FOE properly raised these matters, the Staff would have responded appropriately. FOE has not, since providing general notice of his vague interest last July, sought to raise this (or any of the other matters) as the subject of a new contention. Until such time, the Staff has no obli gation to respond and its silence at the time general notice of a future intent was provided, certainly cannot serve to estop the Staff from asserting a proper objection to this interrogatory.
With regard to interrogatories 41, 42 and 43, FOE once again seeks identification of personnel involved in the review of San Onofre Unit 1 and San Onofre Units 2 and 3 at the construction permit stage. That the Staff's objection to these interrogatories is well founded is confirmed by FOE's own statement that it seeks to elicit information concerning the San Onofre site selection process or "geology-seismology at that time."
(Memorandum at 16.)
Contrary to FOE's unsupported assertion, we perceive no connection between such purpose and any admitted contention in this proceeding. Thus, whether or not FOE may be correct that the information should be readily available, it is not reasonably calculated to lead to the production of evidence admissible in this proceeding.
-9 Interrogatories 49-60 seek admissions. In spite of FOE's protestations that the information sought is relevant and will result in an expeditious hearing, it is readily apparent from the interrogatories that this simply is not the case. Nowhere in the instant Motion or accompanying Memorandum does FOE suggest a way in which answers to these interrogatories would in any way facilitate this proceeding, indeed why evidence on these "issues," as FOE styles these interrogatories, is any way relevant to any admitted contention, or that the information sought is in any way reasonably calculated to lead to the production of admissible evidence. On the contrary, FOE's position on these interrogatories suggests a line of inquiry, the sole result of which will be needless delay which should not be countenanced.
II.
In each of FOE's several Motions to Compel,-!/ FOE makes reference to a discussion involving counsel for FOE, the Staff and the Licensing Board Chairman at the July 17, 1980 prehearing conference regarding discovery. FOE appears to suggest that it relied to its detriment on on what it implies to be either a Board ruling or a Staff waiver regarding.the rights accorded to the Staff by the Commission's regulations (see e.g., FOE Motion regarding interrogatories dated February 20, 1981,
- p. 2-3, and FOE Memorandum supporting Motion regarding interrogatories dated February 19, 1981 at 2-3 and 19).
In light of the reconstitution 1/ In addition to the instant Motion, FOE filed a comparable motion concerning its interrogatories dated February 20, 1981 and its third set of interrogatories.
01 10 of the Licensing Board,.the Staff's position should be clearly understood The Staff, in good faith and in full conformance with Staff counsel's statements regarding discovery made at the July 17, 1980 prehearing conference, FOE's protestations notwithstanding, has responded to FOE's interrogatories. In connection with each set of interrogatories which were served on the Staff (by both FOE and Intervenor GUARD), the Staff, in the interest of responsiveness, expedition and fair play has not insisted on strict adherence to the Commission's regulations regarding interrogatories upon the Staff. See 10 C.F.R. § 2.720(h)(2)(ii). Had the Staff exercised the rights provided by that regulation and the very substantial protection afforded by it, FOE would have been compelled to file its interrogatories with the Licensing Board in the first instance and would have been required to justify why each of its many interrogatories would yield "answers... necessary to a proper decision in the proceeding and that answers to the interrogatories are not reasonably obtainable from any other source."
Only upon a favorable finding by the Licensing Board on each of these criteria may the Licensing Board require that the Staff respond. (Id.)
However, by not asserting the foregoing provisions, the Staff's willingness to respond on a more informal basis is not to be in any way construed as a waiver of its right to assert otherwise proper objections. That is precisely what the Staff has done. FOE's allusion to promisory estoppel is, under the circumstances, simply specious; in fact, the Staff has fully complied with its promise without injecting undue formality into the process.
11 III.
Based on the foregoing, the Staff urges the Licensing Board to deny FOE's Motion to Compel with respect to its interrogatories dated February 19, 1981, and grant the protective order sought by the Staff as part of its April 1, 1981 answers, except with respect to interrogatory 20 which the Staff will respond to by May 8, 1981.
Respectfully submitted, aw ence J. Chandler Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland, this 24th day of April, 1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of SOUTHERN CALIFORNIA EDISON COMPANY,
) Docket Nos. 50-361 OL ET AL.
)
50-362 OL (San Onofre Nuclear Generating Station, Units 2 and 3)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO INTERVENOR FOE'S MOTION TO COMPEL" 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 24th day of April, 1981:
- James L. Kelley, Chairman, David R. Pigott, Esq.
Administrative Judge Samuel B. Casey, Esq.
Atomic Safety and Licensing Board John Hendez, Esq.
U.S. Nuclear Regulatory Commission Chickering & Gregory Washington, D.C.
20555 Three Embarcadero Center Twenty-Third Floor Dr. Cadet H. Hand, Jr.,
San Francisco, California 94111 Administrative Judge c/o Bodega Marine Laboratory Alan R. Watts, Esq.
University of California Rourke & Woodruff P. 0. Box 247 10555 North Main Street Bodega Bay, California 94923 Suite 1020 Santa Ana, California 92701 Mrs. Elizabeth B. Johnson, Administrative Judge Richard J. Wharton, Esq.
Oak Ridge National Laboratory University of San Diego School P. 0. Box X, Building 3500 Oak idg,
Te nes ee 3 830San Diego, California 92110 Janice E. Kerr, Esq.
Dirs. Lyn Harris Hicks J. Calvin Simpson, Esq.
GSUARD Lawrence Q. Garcia, Esq.
3908 Calle Ariana California Public Utilities Commission San Clemente, California 92672 5066 State Building&
San Francisco, California 94102
-2 Charles R. Kocher, Esq.
A. S. Carstens James A. Beoletto, Esq.
2071 Caminito Circulo Norte Southern California Edison Company Mt. La Jolla, California 92037 2244 Walnut Grove Avenue Rosemead, California 91770
- Atomic Safety and Licensing Appeal Board Panel David W. Gilman U.S. Nuclear Regulatory Commission Robert G. Lacy Washington, D.C. 20555 San Diego Gas & Electric Company P. 0. Box 1831
- Atomic Safety and Licensing Board San Diego, California 92112 Board U.S. Nuclear Regulatory Commission Phyllis M. Gallagher, Esq.
Washington, D.C.
20555 1695 West Crescent Avenue Suite 222
- Secretary Anaheim, California 92701 U.S. Nuclear Regulatory Commission ATTN:
Chief, Docketing & Service Br.
Washington, D.C.
20555