ML17339A480

Response in Support of NRC 791227 Motion to Compel Complete Response by Intervenor to NRC Discovery.Disputes NRC Interpretation of 10CFR2.740(f)(1) Re Need for Protective Order.W/Certificate of Svc

ML17339A480
Person / Time
Site:	Turkey Point
Issue date:	01/09/1980
From:	Reis H FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8001250179
Download: ML17339A480 (10)

Text

Ol 6 g5+ q4+g~~ q UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION gqCa BEFORE THE ATOMIC SAFETY 'AND LICENSING BOARD In the Matter of Docket Nos. 50-250-SP 50-251-SP FLORIDA POWER 6 LIGHT COMPANY (Proposed Amendments to (Turkey Point Nuclear. Generating Facility Operating Licenses Unit Nos. 3 and 4) to Permit 'Steam Generator Repair)

LICENSEE'S RESPONSE,TO NRC TO COMPEL DISCOVERY OF INTERVENOR STAFF'OTION On December 17, 1979, the Intervenor filed his answers to the NRC. Staff's interrogatories. He objected to and failed to. respond to several others.

several'nterrogatories On December 27., 1979, the NRC Staff filed a motion to compel, which requested that the Licens'ing Board order .the Intervenor to answer these interrogatories. The Licensee 'hereby submits its response in support of the Staff's motion to compel.

After reviewing the. Staff's interrogatories to the Inter-venor, the Licensee determined that they would elicit informa-tion which is significant and relevant to this proceeding.

The Licensee,was especially. interested in the interrogatories concerning the bases for the Intervenor's, contentions and the reasons for his attacks upon the sufficiency of the Steam Generator Repair Report and the Staff's documents. This information would be. valuable to the Licensee in the prepara-tion of its affirmative case. For the reasons stated by

0 the NRC Staff, the Licensee believes that this information is subject to discovery.

As indicated in its "Memorandum of Licensee Relating to Untimely Discovery" of November 7, 1979, p. 9, the Licensee refrained from serving its own interrogatories upon the Inter-venor in order to avoid burdening him unnecessarily and in the belief that the responses to the Staff's interrogatories would supply the required information. Consequently,, the Licensee has a significant interest in obtaining resp'onses to the interrogatories.

However, Licensee wishes to make it clear that its sup-port of the motion to compel is not based upon the Staff's statement (p. 5) that the .Intervenor was required by 10 CFR 5 2.740(f)(1) to apply for a protective order even "where an objection to discovery is lodged." Licensee believes

.the statement not to constitute a correct interpretation of the provision and certainly not to constitute a description of prevailing practice. For present purposes., and without brief-ing the question in detail, it appears to be sufficient to point to one recent precedent. On November 17, 1978, the Atomic Safety and Licensing Board issued a "Memorandum and Order Ruling on Motions to Compel Discovery" in Northern States Power Com an (Minnesota), Northern States Power Com-pan (Wisconsin), et al. (Tyrone Energy Park, Unit 1), Docket.

No. STN 50-484. There the Board stated (pp. 2-3):

0 ~I The cited portion of 52.740 (f) does lend itself to some confusion but does not lead to the illogical result urged by the -Inter-venor. As Permittees .point out, the Commis-sion's rule parallels a similar provision of the Federal Rules of Civil Procedure where, in Rule 37'(d), the phrase "failure, to act" appears instead of "failure to ans-wer or respond." The NRC rule also means "failure -to act" in accordance with the rest of the discovery rules which anticipate that a party .must act upon discovery .requests either by answering them with the requested information, by objecting to them, or by seeking a protective order under 52.740(c).

Nothing in the NRC discovery rules would require a party to apply for an unneces-sary protective order as a condition pre-cedent to making an objection to, say, a totally irrelevant interrogatory.

Accordingly, Licensee agrees with the Staff's position with respect to interrogatories which the Intervenor wholly failed to address. However, to the extent that the Staff motion suggests that a request for a protective order is required with respect to an interrogatory which has been expressly objected to, it is, in our,view,, mistaken.

Respectfully submitted, Harold F. Ress Lowenstein,Newman, Reis, Axelrad 6 Toll Co-counsel for Licensee 1025 Connecticut Avenue, NW Washington, DC 20036 (202) 862-8400 January 9, 1980

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket, Nos. 50-250-SP

) 50-251-SP FLORIDA POWER 6- LIGHT COMPANY )

) (Proposed Amendments to (Turkey Point Nuclear Generating ) Facility Operating Licenses Unit Nos. 3 and 4) ) to Permit Steam Generator

) Repair)

CERTIFICATE OF SERVICE I hereby certify that copies of the attached "Licensee'.s Response to NRC Staff Motion to Compel Discovery of Inter-venor," captioned in the above matter, was 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, Esq.

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

Atomic Safety and Licensing Appeal Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Mark P. Oncavage 12200 S.W. 110 Avenue Miami, FL 33176 Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, .DC 20555 Steven C. Goldberg, Esq.

Office of the Executive Legal. Director U. S. Nuclear Regulatory Commission

'Washington, DC 20555 Bruce S. Rogow, Esq.

Joel V.. Lumer, Esq.

Richard A. Marshall', Jr., Esq.

Counsel for Xntervenor 3301 College Avenue Fort Lauderdale, FL 33314 Norman A. Coll, Esq.

Steel, Hector 6 Davis 1400 Southeast First .National Bank Building MiamiI FL 33131 Harold F. Reis Lowenstein, Newman, Reis, Axelrad G Toll 1025 Connecticut Avenue, NW Washington, DC 20036 (202) 862-8400 January 9, 1980

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