ML17339A394

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Suppl Per ASLB 791115 Order,To Licensee 791107 Objections to Intervenor MP Oncavage 791029 Interrogatories & Request for Production of Documents.Urges ASLB to Sustain Objections If Motion to Compel Filed.Certificate of Svc Encl
ML17339A394
Person / Time
Site: Turkey Point  NextEra Energy icon.png
Issue date: 11/27/1979
From: Coll N
FLORIDA POWER & LIGHT CO., STEEL, HECTOR & DAVIS
To:
Atomic Safety and Licensing Board Panel
References
NUDOCS 7912140014
Download: ML17339A394 (22)
v • d • e


Text

UNITED STATES OF AMERICA

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NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY 6 LICENSING BOARD In the Matter of ) Docket. Nos. 50-250-SP

) 50-251-SP FLORIDA POWER & LIGHT COMPANY ) (Proposed Amendments to

) Facility Operating License (Turkey Point Nuclear Generating ) to Permit Steam Generator Units Nos. 3 and 4) ) Repairs)

)

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SUPPLEMENT TO LICENSEE'S OBJECTIONS TO INTERVENOR MARK P ONCAVAGEsS INTERROGATORIES TO,, AND REQUEST FOR THE PRODUCTION'F DOCUMENTS FROM LICENSEES FLORIDA POWER AND L'IGHT COMPANY-On November 7, 1979, Licensee. filed and served a number of objections to the, voluminous interrogatories and requests for production of documents served by. Intervenor October,29, 1979.

Licensee files this Supplement to those objections pursuant to footnote 3 of the November 15, 1979 "Order Relative

,to Discovery and Scheduling".

Xn its previous filing, Licensee provided specific writ'ten objections with legal, citations -immediately following each discovery request., In this Supplement, Licensee groups some of those objections into four major categories and provides additional legal authority which supports those particular objections.

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This Supplement 'does not contain. any objections to interrogatories or requests not previously the subject of ob-jections served November 7, 1979. Although the Board's'rder fi.'nds .that in the November 7, 1979 document. "The vast majority of the voluminous requests were r'ejected ..." (Order p. 3), we respectfully submit that objections were filed to only 107 of the 276 numbered paragraphs.

l. Limitations on Sco e of Discover Under 10 CFR 5 2.718, the Board has broad dis-cretionary authority to confine discovery .within reasonable limits. Consumers Power Com an (Midland Plant, Units 1 and 2)

ALAB-123, 6 NRC 331, 340 (1973).

Not all of the information possessed by a party is open to discovery, which is limited to relevant information.

10 CFR 5 2.740.(b)(1). Discovery has such 'limits "[f]or the rules do not, require, and the public interest does not warrant, an application which would make all documents and. information possessed by a person (whether or not a party)'vailable to a discoverer." Commonwealth Edison (Zion Station,. Units 1 and 2),

ALAB-196,, 7'EC 457, 461 (1974). (Emphasis original.)

Xn objections already filed and. served, Licensee has noted. that some, of the information .requested is related to Intervenor contentions which have been rejected by the Board (Interrogatories 1-1 through 1-10; 1-30 through 1-36; 2-14

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through 2-16), or is not relevant to the contention under consideration. (Interrogatories l-ll; 1-12; 1-14; 1-16 through

.1-,22 '-24 '-29. 1-30 through 1-36 '-14 through 2-16; 2-25; 2-31 '3-2 through 3-12; 3-14. through 3-17; 3-20; 3-21 '-31 through 3-34. 6-1 through 6-3;,6-.20; 6 30 through 6-34.. 7-8 through 7-10; 7-15 through 7-18; 7-23 '9-1'hrough 9-3; 9-12; 9-22; 9-23. 9-27; 9-28. 11-5. 11-9 through 11-12; 11-14; 11-18; 11-20. 11-24. through 11-30; 11-33; 11-34. 11-37. 13-5. 13-6(g) and (h) through 13-18(g) and (h); 14-1 through 14-3; 14-8(c)

(3) (f) and (g) 9 ~

14-ll(a) - 14-13; 14-14 '4-20 through 14-26.)

Although judicial case law can be found establishing broad definitions of "relevancy", the Commission's regulations (10 CFR g 2.740,(b) (1) only permit discovery of information or documents "relevant to the subject matter involved in a proceeding" and then further qualify and limit the term "subject matter" to the specific contentions admitted by the presiding. officer in the proceeding. Allied-General. Nuclear Services, et. al. (Barnwell Fuel Receiving and Storage Station), LBP 77-'3, 5 NRC 489, 492 (1977). See also 10 CFR Part 2, App. A, para. IV.(a), stating that discovery is limited'o !'he key issues in controversy".

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It has been specifically held that objections to interrogatories directed to the subject matter of contentions excluded, by the Board will be sustained. and need not be answered.

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Boston Edison Com an, et al.. (Pilgrim Nuclear Generating Station, Unit 2), LBP 75-42, 2 NRC 159, 171 (1975).

The Appeal Board has similarly held such requests to be improper, stating:

"Xt [the Licensing Board] should have taken steps to narrow the re-.

quest to documents relevant to the particular contention under consider-ation. Not. to do so was an abuse of discretion in the circumstances of the present case."

Commonwealth Edison Comoan (Zion Station, Units 1 and 2),

ALAB 196 g 7 AEC 457 ~ 471 ( 1974)

2. Burdensome, o ressive, and Unreasonable Re uests.

Some of. the discovery requests are overly broad-and unlimited in scope as to time so as to be oppressive and burdensome. (See, e. cC., Interrogatories 1-16; 1-17; 1-34; 1-35; 3-2 through 3-6; 3-9 through, 3-12; 3-14 through 3-17'; 6-4 through 6-9. 6-33.. 6-34 7-6 7-8; 7.-15 9-22 '1-14; 11-35 '1-37.)

In. determining the relevancy of discovery requests,, it should be noted that " ... the authorities have also held that as a rule of necessity, there must be limitations. on the concept of relevancy so as '.. to keep the inquiry from going. to absurd and oppressive bounds.'" Boston Edison.Com an , et al. (Pilgrim Nuclear Generat-ing, Station, Unit 2), LBP-75-. 30, 1 NRC. 579, 582 (1975).

0 Some of the discovery requests seek the identity or pxoduction of "all documents," pertaining to specified issues.

(See.Interrogatories A,. B, G, H, 6-1, 6-2, 6-3, 6-4, 6-5, 6-6, 6 7g 6 Sg 6 9~ 7 6'~ 9 l~ 9 3 )

A discovery request for "all documents" is oppressive and unduly burdensome and expensive. A blanket request for the production of all documents, books, papers, and records is objectionable, even, through. the documents may be relevant and relate to the subject matter in question. Illinois Power Company (Clinton Power Station,,Units 1 and 2), ALAB-340, 4 NRC 27, 34 (.1976) .

The Licensee is prepared to provide relevant information or specific relevant documents. However, these discovexy requests would require the Licensee to undertake exhaustive searches of its files at great. expense.. Without a, showing by. the Intervenor of a compel'ling need for "all. documents!', rathex than. for specific information, these requests must be considered'nduly burdensome and oppressive.,

Finally, Licensee recognizes that-in. its "Order Relative, to Discovery and Scheduling" of November 15, 1979, the Boaxd " ... determined. that, sufficient justification has been presented by the Intervenox to.rule that the document is acceptable" (Order p. 4). However,, we xespectfully submit that

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even though the Board has permitted Intervenor to file these discovery'equests late., the Board must consider whether the requests are objectionable,'as, being unreasonable and oppressive, because of their untimeliness. Commonwealth Edison Com an (Zion Station, Units 1 and 2), 'ALAB-196, 7'NRC 457, 462-3(1974). In that decision,. the Appeal Board held that.

"discovery requests filed outside the time period prescribed by the Commission's rules (or such different time period as may be specified by the licensing board for pre-trial discovery) are to be regarded as ~rima facie unreasonable." Id. at p. 463 At a minimum, they are subject to "a higher standard of probative value:-...". Toledo Edison Com an (Davis-Besse Nuclear Power Station, Units 1, 2, and 3),, 3, NRC. 199, 201 (1976) .

3. Pro rietar and Confidential Commercia'1: Information, In objections already filed and served, Licensee has noted that some of the interrogatories and requests for production seek proprietary and confidential business information of Licensee such as contracts with third par'ties, its future plans for seeking rate relief,, and its future plans for obtaining financing. '(See, e.cC., Xnterxogatories'. 1-3, 1-, 31, 1-. 32, 1-34(E) f 1 36f, 2 25' 15f ll 26'l 28 and 11 30 ~ )

The information sought, is of the type customaxily held in confidence by Licensee., There is a rational basis for having customarily held it in confidence, because. significant commercial injury might be sustained by. Licensee, or, in the

4i case of contract information,. by one or more of the parties to such contracts were those provisions to be publicly disclosed.

Some, if not all, of the contracts sought, contain provisions which require Licensee to treat the provisions as proprietary.

Licensee has in fact kept such information. in confidence and not disclosed it and, it. is not to. be found in public sources.

Intervenor has made no attempt to. demonstrate the relevancy or materiality of the information sought. It has been held that "'.. practical consideration dictate that the parties should not be permitted to roam in shadow zones of relevancy and to explore matter which does not presently appear germane on the theory that it might conceivably become so. '"

Allied. General Nuclear Services, et al. (Barnwell. Fuel Receiving and Storage Station), LBP 77-13, 5 NRC 489, 492 (1977) . See also 10 CFR Part 2, App. A, para. IV(a), which states "In no event should'he parties be. permitted-.to use discovery procedures to conduct a 'fishing expedition'r, to delay the proceedings".

The unrestricted production of materials such as trade secrets, secret processes, developments, or research has been held to be "unreasonable and: oppressive." Commonwealth

' 457, 463 (1974) .

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4. Pre aration of Research and Calculations.

Licensee has objected to some of the interrogatories and requests for production on the grounds that they seek to re-quire the Licensee to perform research, new cal'culations, conduct

'I new analyses or generate new data, or to provid'e information which is equally available to Intervenor. (See, e.cC., Interroga-tories 1-8, 1 9g 1 12 1 13' 29@ 1 30( 1 33 '1 34 (E) 2 7f 2 Sg 2 14~ 2 21~ 2 28' 19~ 3 21' 22' 23' 25' 26' 27' 30' 31' 32/ 3 33'g 3 34' 21 ~ 6 27/ 6 33' 34' 35' 2g 9 3 9 4g 9 SJ 9 14' 15'l 14'1 25'l 26'l 29'1 30 )

Where documents are equally available to either party,:one party cannot compel another party to undertake the burden of preparation of the former's own case. Boston Edison Com an , et al. (Pilgrim Nuclear Generating Station, Unit 2),

LBP 75-30, 1 NRC 579, 588 (1975) ~

And, while a party -must. furnish in. its answer to interrogatories whatever information is available to it, ordinarily it will not be required "to.make research and compilation of. data not readily known. to him." Id. at p. 584.

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CONCLUS ION Licensee has filed objections, as supplemented herein, with respect to some of the Intervenor discovery requests. Under 10 CFR 5 2.740.(f), Intervenor "may" file a Motion to Compel. Discovery with respect to some or all, of the discovery requests to which objections, as supplemented, have been filed. In the event such a Motion to Compel is filed, Licensee requests that. the Board sustain its objections for the reasons stated.

DATED this 27 day of NOVEMBER 1979.

Respectfully submitted, STEEL, HECTOR 6 DAVIS Co-Counsel for Licensee Florida Power & Light Company 1400 Southeast First National Bank Building Miami, FQ. 3313-1 Tel: (355) 577.-2863

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By NORMAN A. COLL

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND .LICENS ING BOARD In the Matter of Docket Nos. 50-250-SP 50-251-SP FLORIDA POWER & LIGHT COMPANY (Propo'sed Amendments to Facility (Turkey Point Nuclear Generating Operating License to Permit Units Nos. 3 and 4) Steam Generator Repair)

CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the attached, Supplenent to Licensee's Objections to Intervenor Mark P. Oncavage's Interxogatories to, and Request for the Production of Documents from Licensee, Florida Power and Light Corapany captioned in the above matter were served on the following by deposit in, the United States mail, first class, properly stamped and addressed, on. the date shown below.

  • Elizabeth S. Bowers, Esquire

'Chairman "

Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555

  • Dr. Oscar H. Paris Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555
  • Dr. Emmeth A. Luebke Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory. Commission Washington, DC 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555

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Atomic Safety and Licensing Appeal Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Mark P. Oncavage 12200 S.W. 110 Avenue Mi,mi,, FL 33176 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Steven C. Goldberg, Esquire Office of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, DC 20555 Bruce S. Rogow.

Joel V. Lumer Richard A. Marshall, Jr.

Counsel for Intervenor 3301.%ollecre Avenue Ft. Lauderdale, FL. 33314

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NORMAN A. COLL STEEL HECTOR & DAVIS 1400 Southeast First National Bank Bui'1ding Miami, FL 33131 Telephone: (305) 577-2863 November 27', 1979

  • Delivered to Union Courier Service, Inc. on November 27, 1979 for immediate hand delivery.

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