ML17297A585

Response in Support of Joint Applicant 810706 Motion to Compel Intervenor to Answer Interrogatories & to Compel Answers Under Oath.Broad Brush Objections to Request Are Improper.W/Certificate of Svc

ML17297A585
Person / Time
Site:	Palo Verde
Issue date:	07/21/1981
From:	Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8107240190
Download: ML17297A585 (14)

Text

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ACCESSION NBR 81072rl0 190.

DOC ~ DATES 81/07/21 NOTARIZED!

NO FAcIL>>rsTN 50 528 Palo. ve'rde, Nuclear I stations Unit ii Arizona Publ i STN 50-529 Palo-Ve'r de Nuclear. Stationi Un) t 2'i Arizona Publi STN 50 530 Palo Ve'rde Nucl ear>> Stationi Unit-3r Ar izona Publ<<

AUTH's NAMEl

'UTHOR AFFILIATTON MCGURRENgHBJ ~

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07/21/81

.I /,n, UNITED STATES OF AMERICA 9 ~

o NUCLEAR REGULATORY COMMISSION Ol.

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD - ~ ~ g8 ou $g 4

6 s

In the Matter of ARIZONA PUBLIC SERVICE COMPANY, ET AL.

(Palo Verde Nuclear Generating Station, Units 1, 2 and 2) 0)/~

J Docket Nos.

STN 50-528 STN 50-529 STN 50-530 NRC STAFF REPLY TO JOINT APPLICANTS'OTION TO COMPEL INTERVENOR TO ANSWER INTERROGATORIES AND MOTION TO COMPEL INTERVENOR TO ANSWER INTERROGATORIES UNDER OATH I.

Intr oduction On July 6, 1981 thi~ Joint Applicants Arizona Service Company, Salt River Project Agricultural Improvement and Power District, Southern California Edison, Company, El Paso Electric Company, and Public Service Company of New Mexico ("Joint Applicants" ) filed two motions, a motion entitled "Joint Applicants'otion to Compel Intervenor to Answer Inter-rogatories,"

and a motion entitled "Motion of Joint Applicants to compel Intervenor to Answer Interrogatories Under Oath."

The first motion requests the Board to compel the Intervenor to answer three interrogatories she objected to.

The later motion simply requests this Board to compel this Inter-venor to comply with the provisions of 10 C.F.R. 5 2.740b(b) which require 1/

Interrogatories 63, 64 and 65,

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that "[e]ach interrogatory shall be answered

.. in writing under oath or affirmation, unless it is objected to.

[and that] [t]he answers shall be signed by the person making them."

As the Joint Appli-cants note (at page I) the Intervenor's answers were not signed and were not filed under oath or affirmation.

Accordingly, the Staff supports this motion.

For the reasons discussed below the NRC Staff also supports Joint Applicants'otion compelling answers to interrogatories numbered 63, 64 and 65.

II.

Discussion The Joint Applicants seek responsive answers to the following interrogatories:

63.

Describe in detail how you came to learn that some of the concrete slump tests performed by Engineering Testing Labs for PVNGS Units I and 2 were falsified.

Did you acquire such knowledge based upon conversa-tions, consultations, correspondence or any other type of communications with one or more individuals7 If so, (a)

Identify by name and address each such individual.

(b)

Describe the nature of each communication with each such individual, when it occurred, and identify all other individuals involved.

(c)

Describe the information received from each individual.

(d)

Identify each letter, memorandum,

tape, note or other record related to each conversation, correspondence, or other communication with such individual.

64.

Identify by name and address each and every individual who you know or have reason to believe participated in the falsification of the concrete slump tests.

For

each individual so identified, explain in detail how you came to learn that such individual partici-pated or may have participated in the falsification of the concrete slump tests.

65.

For each and every concrete slump test which you claim was falsified, explain what aspect or aspects of the test were falsified. If information was falsified, describe such information, and state what the false values of such information are.

As to such information, state what the true value should be.

Each of these interrogatories relate to Intervenor's Contention No.

8 which reads:

The base mats for Units I and 2 are not structurally able to support the systems and equipment inside containment, because some of the concrete slump tests performed by Engineering Testing Labs for Units I and 2 were falsified.

The Intervenor r efused to answer the interrogatories stating:

Object on the ground that the interrogatory calls for information which is irrelevant, immaterial, and not designed to lead to the discovery of admis-siblee evidence.

This objection is inconsistent with the NRC "Rules of Practice" and case law.

First, as noted by the Joint Applicants (at page

3) the Com-mission's Rules of Practice provide:

"Failure to answer or respond shall not be excused on the ground that the discovery 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."

10 CFR 5 2.740(f)(l).

Since no application for a protective order has been filed by Inter-venor, her failure to respond cannot be excused.

Accordingly, an order by the Board compelling proper responses is warranted.

Second, 10 C.F.R. 5 2.740(b)(l) governing discovery in general provides in material part:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, whether it re-lates to the claim or defense of any other party It is not ground for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

This rule has been recognized in NRC practice to be consistent with

~

the modern administrative and legal practice which allows that pretrial discovery be "..

. liberally granted to enable the parties to ascertain the facts in complex litigation, refine the issues, and prepare adequately for a more expeditious hearing."-

Furthermore, this allows fulfillment of the purpose of discovery which is "..

. to eliminate, insofar as

possible, the element of surprise in modern litigation."-

As the rule provides, discovery may be had if the information sought appears to be "reasonably calculated to lead to the discovery of admissible evidence."

"Broad brush" or general objections to discovery requests are not proper.

Each objection to a r equest for documents or interrogatory must be detailed, and particularly relate the objection to the discovery h

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App id d

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Pacific Gas and Electric Com an (Stanislaus Nuclear Project, Unit I),

LBP-78-20$

7 NRC 1038$

1040 1978).

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Ei Coo erat>ye, Inc.

Susquehanna Steam Electnc Stations, Units 1 and L 8-13, 12 NRC 317, 321 (1980).

Challenges to interrogatories must be:

. specific enough so that the [tribunalj can understand in what way the interrogatories are claimed to be objectionable.

General objections, such as the objection that the interrogatories will require the party to conduct research and compile data, or that they are unreasonably burdensome, oppressive, or vexatious, or that they seek informa-tion that is as easily available to the interrogating as to the interrogated party, or that they would cause annoyance, expense; and oppression to the objecting party without serving any purpose relevant to the action, or that they are duplicative of material already discovered through depositions, or that they are irrelevant and immaterial, or that they call for opsnions an conc us>ons, are insufficient.7/

[Emphasis addedj 7/

4A Moore's Federal Practice (1980 ed.) Para.

33.27.

(at pp.

3-151 an 33-152 (citations omitted);

and see 10 C.F.R. 5 2.7405()); ~Pil rim, ~su ra,

~LBP-5-30, 1

NRC at 583 ff.

The Intervenor's "broad brush" objection that the interroga-tories call for information which is irrelevant, immaterial and "not

'3 designed to lead to the discovery of admissible evidence" does not satisfy the above requirements.:

Accordingly, the Staff believes the Intervenor should be compelled to answer Interrogatories 63, 64 and 65.

If, as the Joint Intervenors have suggested (at page 7), the Intervenor is concerned that any individuals she names may be subjected to harass-

ment, she should request that such disclosure be made pursuant to a pro-tective order.

3/ ~Eh

. ALAB-313.~

2 323.

5/

See 10 C.F.R. 2.740(c).

>>6-III.

CONCLUSION For the reasons stated

above, the NRC Staff supports "Joint Appli-cants'otion to Compel Intervenor To Answer Interrogatories" and the "Motion of Joint Applicants To Compel Intervenor To Answer Interroga-tories Under Oath."

Respectfully submitted Dated at Bethesda, Maryland this 21st day of July, 1981.

Henry

. McGurren Coun'or NRC Staff

UNITED STATES OF Al1ERICA NUCLEAR REGULATORY COt AMISS ION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ARIZONA PUBLIC SERVICE COMPANY, ET AL.

(Palo Verde Nuclear Generating Station, Units I, 2 and 3)

Docket Nos.

STN 50-528 STN 50-529 STN 50-530 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF REPLY TO JOINT APPLICANTS'OTION TO COMPEL INTERVENOR TO ANSWER INTERROGATORIES AND MOTION TO COMPEL INTERVENOR TO ANSllER INTERROGATORIES UNDER OATH" in the above-captioned proceeding have been served on the following by deposi't in the United States mail, first class, or, as indicated by an asteri'sk, through deposit in the Nuclear Regulatorv Commission's internal mail system, this 21st day of July, 1981:

Robert M. Lazo, Esq.,

Cnairman*

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr.. Richard F. Cole*

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission washington, DC 20555 Dr. Dixon Callahan Union Carbide Corporation P.O.

Box Y

Oak Ridge, TN 37830 Arthur C. Gehr, Esq.

Charles Bischoff, Esq.

Snell E l<ilmer 3100 Valley Center

Phoenix, AZ 85073 Bruce Meyerson Arizona Center for Law in the Public Interest 112 North Fifth Avenue

Phoenix, AZ 85003 Ms.

Lee Hourihan 6413 S. 26th Street

Phoenix, AZ 85040 Atomic Safety and Licensing Board Panel*

U.S. Nuclear Regulatory Commission llashington, K 20555 Atomic Safety and Licensing Appeal Board*

U.S. Nuclear Regulatory Commission I/ashington, DC 20555 Docketing and Service Section*

Office of the Secretary U.S.

Nuclear Regulatory Commission Hashington, DC 20555 He r

. McGurren Co 1'or NgC Staff

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