ML18283A541
| ML18283A541 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 06/02/1976 |
| From: | Dawn Powell, Rosenberg B, Sanger H Tennessee Valley Authority |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| Download: ML18283A541 (21) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board Xn the Matter of TENNESSEE VALLEY AUTHORITY (Browns Ferry Nuclear Plant Units 1 and 2)
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Docket Nos.
50-259 50-260 LICENSEE'S ANSWER IN OPPOSITION TO INTERVENOR'S MOTION FOR AN ORDER TO COMPEL.THE APPLICANT SIC]
TO RESPOND TO CERTAIN INTERROGATORIES AND TO MORE FULLY RESPOND TO CERTAIN INTERROGATORIES STATEMENT On April:30, 1976, after receiving an extension of time from the Board, Intervenor, William E. Garner, served on the Licensee a set of inter-rogatories consisting of 297 separate questions.
On May 10 the Licensee objected to certain interrogatories, Licensee's Ob'ections to Interro ato-ries of William E. Garner, and on May 14 provided answers to the remaining interrogatories, Licensee's Res onses to Intervenor's Interro atories.
the A licant Licensee to Res ond to Certain Xnterro atories and to More Full Res ond to Certain Xnterro.atories
("Motion to Compel").
In accord-ance with 10 C.F.R. 5 2.730(c)
(1975), the Licensee hereby files this answer in opposition to Intervenor's motion.
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The instant motion should be denied since it fails to comply with the requirements of 10 C.F.R. 5 2.740(f)
(1975), totally fails to provide any supporting arguments, and demands responses to interrogatories which are generally irrelevant, unduly burdensome,
- vague, or otherwise, improper as discussed in Licensee's Ob ections to Interro atories of William E.
Garner and as further discussed below.
ARGUMENT Intervenor's Motion Fails to Com 1 with the Re uirements of the Rules of Practice.
Section 2.740(f) of the Rul'es of Practice provides authority for a party submitting interrogatories to move the Licensing Board for an order
'o compel responses.
That section,
- however, imposes certain requirements upon the party seeking such an order:
The motion shall set forth the nature of the uestions or the re uest the res onse or ob ection of the art u on whom the re uest was served and ar uments in su-ort of the motion.
Furthermore; section 2.730(b) of the Rules of Practice imposes a
general requirement for all'motions that:
Unless made orally on the record during a hearing, or the presiding officer'irects otherwise, a motion shall be in writing, [andJ shall state with articularit the
~zounds and zaliaf sought 1
Emphasis added herein unless otherwise noted.
The. Intervenor's motion completely ignores those requirements.
It fails to set forth the nature of the interrogatories propounded, it fails to set forth the responses or objections of TVA the party upon whom the request was served and it fails to state with particularity the'grounds for, or any arguments in support of, the motion.
- Instead, Intervenor makes only bare conclusory statements of the type, "[t]his interrogatory is certainly rele-vant to these contentions."
Intervenor then leaves it for the Board and the other parties to sort out and review each individual interrogatory and each of TVA's objections and responses to those interrogatories and to provide the requisite legal analysis and reasoning.
Such a practice by the Inter-venor shows a clear disdain for the Commission's Rules of Practice, a com-piete disregard for the orderly disposition of this proceeding, and abso-lutely no concern for the obligation of, a party in an administrative pro-ceeding to assist in "making the system work."
Cf. Consumers Power Co.
(Midland Plant, Units 1 and 2) ALAB-123, RAI-73-5 331, 332 (May 18, 1973).
- Moreover, as noted by this Board, where the Intervenor is an attor-,
ney,. a high standard of precision and clarity may be required, especially where the Intervenor is no neophyte but has had extensive experience in Commission proceedings.
Boaxd's Rulin on Petition to Intervene, March ll,'976, at 17.
Cf. Public Service Elec.
and Gas Co.
(Salem Nuclear Generating Station, Units 1 and 2) ALAB-136, 6 AEC 487, 489 (1973).
One seeking an ordex compelling discovery must comply with the rules of the forum and state with particularity the grounds for the motion so that the mattex may be intelligently resolved.. Lafond v. ~Gra 62 F.R.D.
446 (E.D. His. 1974); Bartholomew v. Port, 309 F. Supp.
1340 (E.D.
Intervenor's Interro atories Are Wholl Im ro er.
Intervenor in many interrogatories assumes facts neither in evi-dence nor admitted by the Licensee and then poses a question based upon the unfounded assumption.
- See,
~e
, interrogatories 33, 68, 69, 82, and 83.
The irrelevancy of many other interrogatories is seen by a simple compari-son of'the interrogatories with the three specific contentions admitted for purposes of discovery,
- see,
~e
, interrogatories 21, 42, 43, 44, and 45.
TVA's objections to Intervenor's interrogatories are set foxth in Licensee's Ob ec'tions to Interro atories of William E. Garner and are re-viewed here in summary form.
1 through 6:
A "complete and specific" discussion of the ".requests for compliance with their regulations" Intervenor's Interro atories to A li-cant, at 1) that have been made upon TVA by any regulatory agency is unduly
- broad, vague, and irrelevant to any of the admitted contentions.
A statement of whether TVA is "currently in full compliance with each request".(Id.) is a matter that embraces a purely legal determination, which is made by TVA and the appropriate agency.
8:
The Intervenor states this relates to "who was responsible" but fails to specify responsible for what (Motion to Compel, at 2).
This interrogatory is not related to any of the contentions and would obviously impose an undue burden upon the Licensee.
l 9:
Although the question is of the "when did you stop beating your wife" variety, TVA did supply an adequate response.
In Lafond y.
~Gra
, ~su ra,a matter involving a prisoner's rights, the court denied a request for discovery, of all rules, r'egulations, and policy directives of the Division of Corrections, noting that the request was objected to on grounds'of "being too burdensome."
The court then explained:
The burden is on the movant, and his action triggers responses which would never become due if the movant failed to act.
Consequently, if the movant fails to follow the local rules, the court often is unable to decide intelligently and fairly'.
In such a case, equity demands that the motion be denied for failure to meet the movant's burden t62 F.R.D. at 448].
Similarly, in Bartholomew v. Port,
~su ra, the court denied the de-,.
fendants'otion to dismiss on the grounds that the motion failed to state with particularity the grounds therefor The c.ourt, quoting from ~Stein ut
- v. National Cit Bank of New York, 36 F. Supp.
486 (E.D.N.Y. 1941), stated:
The court would ordinarily excuse the failure to comply with [Rule 7(b)(1)] if it were inadvertent, but such is not the case here.
There should be strict compliance with the rules, otherwise they will be whittled away and become meaningless and unenforceable
[309 F. Supp.
at 1344j.
- Here, the Intervenor has completely ignored the basic, requirements of a motion to compel and set forth only bare conclusory statements.
The Intervenor has thus totally failed to provide the Board with any assistance in ruling on the motion and has made no attempts whatsoever to distinguish or refute the legal bases and supporting authorities cited in Licensee's Ob ections to Interro atories of William E. Garner.
Accordingly, the Board is authorized by and under the Rules of Practice should deny Intervenor's Motion to Compel.
10:
TUA's answer is clear and fully responsive to this interrogatory.
13:
TVA's answer to this interrogatory is fully responsive.
The interrogatory assumes that the reactor operators improperly waited too long to shut down the reactors these are merely assumed facts and have not been proven.
Xf, indeed, the question.refers to reactor shutdown on March,22,
- 1975, TVA has responded that the reactors were shut, down in a timely manner surely an adequate response to an improper question.
16 through 19:
These interrogatories are irrelevant to any of the three contentions and request information which may not be disclosed under the Privacy Act of 1974 or information which is not'ithin TVA's knowledge.
Furthermore, Xntervenor is also apparently attempting to expand interrogatory 17, contrary to the Board's Prehearin Conference Order,. April 26, 1976.
4 20 and 21:
"The parts of this interrogatory xelating to nuclear plants other than the Browns Ferry Plant are irrelevant to any of the three contentions.
See Board's Rulin s on Ob ections 6 Protective Order (Hay 24, 1976) at 7, where the Board, determined that Xntervenor's questions 41 through 44 and portions thereof referring to other plants are irrelevant.
26:
This is not an interrogatory but a request for production and inspection of documents.
The demand to hand over "any written matter gener<<
ated as a result of Rusche's visit to the plants" is totally vague, in as much as no specificity concerning subject matter or author is provided..
42, 43, 44, and 45:
The amount of electricity furnished by TVA to ERDA facilities and any purported gaseous diffusion plant, at Portsmouth, Ohio, is totally irrelevant to any of the three. admitted contentions.
46 and 47:
These interrogatories are unnecessarily broad and not related to the admitted contentions.
See Board's Rulin s on Ob ections
Protective Order at 8, rejecting Intervenor's interrogatories to the NRC staff numbered 81 and 83, which requested similar information.
48 and 49:
TVA's purchases of coal and.electricity are clearly not related to any of the three stipulated contentions.
51 and 52:'he amount of electricity produced by Browns Ferry is clearly not related to any of the three stipulated contentions.
53:
The identity of the persons in the control room during the fire is clearly not related to any of the three contentions.
54:
The "whereabouts" of TVA's Board members and its General Hanager on the day of the fire is not related to any of the three conten-,
tions.
Cf., Board's Rulin s on Ob'ections
& Protective Order, at 7, re-garding Intervenor's 'interrogatory 23 to the NRC staff.
55:
This interrogatory is virtually identical"to interrogatory 83 to the NRC staff, which the Board rejected necessarily broad and irrelevant to the contentions" (Rulin Intervenor's I.
as being "[u]n-s on Ob'ections
& Protective Order, at 8).
57:
Intervenor merely asserts that this interrogatory is relevant to contention 2.
The interrogatory is, however, argumentative, conclusory,
- vague, and improper in that it assumes, without any factual showing, the existence of "unauthorized design changes."
5foreover, the interrogatory is irrelevant since it concerns modifications made prior to.lfarch 22, 1975.
66:
The filing of notices of appearance by attorneys is not re-lated to any of the three contentions.
See Board's Rulin on Ob ections Protective Order, at 6, concerning Intervenor's interrogatories 7 and 8 to the NRC staff.
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70 through 77:
These interrogatories are identical to Intervenor's P
interrogatories 16-22 and 24 to the NRC staff and have been rejected by the Board.
Board's Rulin s on Ob ections
& Protective Order, at 6-7.
/8 through 81:
These interrogatories are not related to the three contentions.
See Board's Rulin s on Ob ections
& Protective Order, at 7, concerning Intervenor's interxogatories 25 thxough 28 to the NRC staff, which are identical.
84:
Intervenor's interrogatozy inquiring about, inter alia, "[h]ow the'feather [will] be tested for fluffiness" and requesting details of the feather, such as, the "name, breed,
- age, sex, and part of body from which t
plucked" is totally irrelevant to the three-contentions.
The Licensee should not be required to sort out.the "cute" from the serious in this interrogatory if, indeed, any part of it can fairly be held serious..-
I 91 through 97:
Contrary to Intervenor's assertion that "[t]hese interrogatories of course relate directly to contentions 2 and 3," a meri perusal of the thxee contentions reveals that there is no such relationship
'Notion to Compel, at 4).
'These interrogatories, which concern contxol rod drive, containment loading, and feedwater'nozzle blend radii, are obviously irrelevant to the three contentions.
98:
This'nterrogatory is irrelevant to any of the thre~ conten-tions.
- Horeover, the interrogatory assumes facts that have not been estab-lished by evidence.
99:
Intervenor's argument in support of this'nterrogatory states
"[s]ee 97 above," which states "[s]ee 91 - 96, inclusive, above" which fi-nally states
"[t]hese interrogatories of course relate directly to conten-tions 2 and 3."
A cursory review of those contentions shows that the
identity of the plant emergency director is not within the subject of those contentions.
Intervenor's mere conclusion that the interrogatory is rele-vant, without any supporting argument, is clearly inadequate as a basis for compelling a response.
100:
The "pre-fire problems" at the Browns Ferry plant are not related to contention 2,
and Intervenor has provided no reasons to'emon-strate relevance.
101:
This interrogatory is not related to any of the three contentions.
103:
Interviews by the press is a matter not related to any of the contentions.
'I 105:
This interrogatory is unduly broad and burdensome and would provide absolutely no assistance in resolving the issues in this proceeding.
106:
The operational date of the cooling towers at Browns Ferry is obviously not related to any of the contentions.
107:
The pipe restraint system in the suppression pool is not related to any of the, contentions.
109 through 111:
Mithout a sufficient showing of a basis, ques-tions concerning an ultra-sonic sound detector, a soap solution, or the feather test are irrelevant to any of the contentions.
The questions are vague, in'hat the use to which the devices are to be put is not specified.
115:
The in-core vibrations are irrelevant to any of the contentions.
118 through 273:
Although Intervenor asserts that "[eJach and every one of these interrogatories are relevant to contention 1 or 2 or 3, and especially contention 2 and more particularly to B of 2 and most par-ticularly to A of 2," Intervenor has totally failed to.provide any
explanation of how or why a listing of over 150 individual events, with most occurring prior to the date of the fire, is relevant to any of the conten-tions.
These interrogatories are irrelevant to the three contentions, are unduly burdensome, and would provide no assistance in resolving the issues in this proceeding.
See Board's Rulin s on Ob ections
& Protective Order, at 8, regarding Intervenor's interrogatory 112 to the NRC.staff.
274:
Contrary to the Intervenor's assertion, a cursory review of the contentions reveals that this interrogatory is 'in no way related to those contentions.
275:
. TVA's system of discipline is not related to any of the con-4 tentions.
?foreover, TVA's personnel practices are not within the jurisdic-tion of the Commission and should not be a matter in this proc'ceding.
- 276, 277,
- 278, 280,
- 283, 285, 286:
These interrogatories are not related to any of the contentions.
293 TVA'bjected to this interrogatory on the grounds of undue burden and irrelevancy.
Therefore, Intervenor's argument that "[t]he delay tarily supply the information, when available, in no way indicates that such information is relevant or would be of assistance in resolving any issues in this proceeding.
CONCLUSION For the foregoing reasons the Intervenor's Motion'to Compel under 10 C.P.R.
5 2.740(f)
(1975) should be denied.
Respectfully submitted, Iv v:/')>A' Herbert S. Sanger,'d.
General Counsel Tennessee Valley Authority Knoxville, Tennessee David G. Povell
. Assistant General Counsel 8/ r~
I ruce M. Rosenberg Attorneys for Licensee Knoxville, Tennessee June 2,
1976
UNITED STATES OF AMERICA NUCLEAR 'REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of TENNESSEE VALLEY AUTHORITY (Browns Ferry Nuclear Plant Units 1 and 2)
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Docket Nos.
50-259 50-260 CERTIFICATE OF SERVICE I hereby certify that I have served the original and 20'onformed copies of the following document, on the Nuclear Regulatory Commission by depositing them in the United States mail, postage prepaid and addressed to Secretary, U.S. Nuclear Regulatory Commission, Washington, D.C.
- 20555, Attention:
Chief, Docketing and Service Section:
Licensee's Answer. in Opposition to Intervenor's Ifotion for an Order to Compel the Applicant [sicJ to Respond to Certain Interrogatories and to More Fully Respond to Certain Interrogatories and that-I have served a copy of the above document. upon the persons listed below. by depositing it in the United States mail,.postage prepaid and addressed:
Thomas W. Reilly, Esq.,
Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Frederick P.
Cowan 22 Browns Lane
- Bellport, New York 11713
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Dr. klugh C. Paxton Los A3 amos Scientific Laboratory P.O.
Box 1663 Los Alamos, New kfexico 87544 James R. Tourtellotte, Esq.
Lawrence E. Brenner, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. '0555 William E. Garner, Esq.
Route 4, Box 354 Scottsboro, Alabama 35768 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 This 2nd day of June, 1976.
ruce H. Rosenberg Attorney for Licensee Tennessee Valley Authority