ML18283A559
| ML18283A559 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 05/13/1976 |
| From: | Dawn Powell, Rosenberg B, Sanger H, Wallace L Tennessee Valley Authority |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| Download: ML18283A559 (30) | |
Text
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)
Docket Nos.
50-259
-260 LICENSEE'S MOTION FOR AN ORDER TO COMPEL WILLIAME.
GARNER TO RESPOND TO CERTAIN INTERROGATORIES Pursuant to 10 C.F.R. 5 2.740(f)
(1975), Licensee moves the Board for an Order to compel Intervenor Nilliam E. Garner to respond to Licensee's
, interrogatories l(b) and (c); 4(e), (f), and (r); 5(d>, (e),
and (h); 6(d);
and 7(d) and (e) filed April 16, 1976, on t:he grounds that I
1.
Licensee's interrogatories are within the scope of admissible discovery; 2 ~
9'illiam E. Garner has raised no valid 'objections t:o those interrogatories; and 3.
Intervenor's lack of response constitutes a failure to answer 4
under 10 C.F.R. 5 2.740(f)
(1975).
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A supporting brief and proposed form of order are enclosed.
Respectfully submitted, i.6f 9 ~ f" 0~-W P Herbert S. Sanger, Jr.
General Counsel Tennessee Valley Authority Knoxville, Tennessee Lewis H. Wallace Deputy General Counsel David G. Powell Assistant General Counsel
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c'ruce H. Rosenberg Attorneys for Licensee Knoxville, Tennessee Hay 13, 1976
UNXTED STATES OF AMERICA NUCLEAR REGULATORY COMMXSSXON Before the Atomic Safety and Licensing Board In the Matter of TENNESSEE VALLEY AUTHORITY (Browns Ferry Nuclear Plant Units 1 and 2)
Docket Nos.
50-259 50-260 LICENSEE'S BRIEF IN SUPPORT OF MOTXON FOR AN ORDER TO COMPEL WILLIAME.
GARNER TO RESPOND TO CERTAIN INTERROGATOR'XES On April 26, 1976, the Atomic Safety and Licensing Board issued its Prehearing Conference Order accepting and adopting for the purposes of discovery three contentions as stipulated by the parties at the Special Prehearing Conference of April 1, 1976, and establishing a schedule for discovery proceedings.
In accordance with the stipulated
- schedule, Licensee served a set of interrogatories on Xntervenor William E. Garner on April 16, 1976.
All of Licensee's interrogatories concern specific stipulated con-tentions of Garner which were admitted by the Board's Order of April 26, 1976, for the purposes of discovery.
Each interrogatory requests informa-t.Eon seeking the factual basis for the contention and clarification of spe-cific phrases used in those contentions,
On Hay 3, 1976, Garner filed Intervenor's Objecti.ons to Applicant's Interrogatories to Intervenor objecting to'nterrogatories 1(b) and (c); ~i(e),
(f), and (g);
5 (d), (e),
and (h);
6 (d); and 7 (d) and (e).
This brief is in support of a motion for an order to compel Inter-venor to respond to the above interrogatories on the grounds that such inter-rogatories are within the scope of permissible discovery and no valid objec-tions have been raised to those interrogatories.
ARGUMENT Licensee's Interro atories Are Hithin the Sco e of Permissible Discover The Rules of Practice regarding discovery state:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter in-volved in the proceeding, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party
. [10 C.F.R.
5 2.740(b)(1)
(1975)].
Licensee's interrogatories 1(b), 1(c), 5(d), 5(e), 6(d), 7(d), and 7(e) all refer explicitly to Intervenor's contentions and merely request fur-ther explanation of the various phrases used by Intervenor in his contentions.
For example, contention 1 reads in part; Intervenor contends that the presently proposed modi-fications at Browns Ferry, Units 1 and 2, will be in-adequate to provide adequate protection against the functional damage of both redundant components of engineered safeguards equipment from postulated fu-ture fires, unless the following necessary modifica-tions are also made Interrogatories 1(b) and 1(c) seek to elicit particularization of that contention and request as follows:
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1(b) Identify with particularity and by system name each of the "engineered safeguards equipment" referred to in contention 1
and l(c) Specify what is meant by the phrase "functional damage of both redundant components of engineered safeguards equipment."
Intervenor responded with the following objections, to those interrogatories:
l(b) The system names and identity of the "Engineered Safeguards Equipment" are more available to Applicant than they are>to Intervenor.
and l(c) It is not Intervenor's job to define technical terms for the Applicant.
Similarly, interrogatories 5(d) and (e) relate to contention 1(D) which states "TVA should be required to have the power supply to the venti.
lation system for all potential fixe areas outside the fire areas."
Intex-rogatoxies 5(d) and (e) request the Intervenor to explain the term "outside the fire areas" and identify specifically each "potential fire area" to which this contention is applicable.
Intervenor objected to these inter-rogatories replying "It is not Intervenor's role to explain" these terms.
Interrogatory 6(d) relates to contention l(E) which states "[a]ll redundant Class IE circuits and the equipment served by these circuits should be separated by a fixe barrier wall."
Interrogatory 6(d) requests the Intervenor to define and explain what is meant by "redundant Class IE circuits."
The Intervenor objected merely replying that that definition "is equally available to Applicant."
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Interrogatories 7(d) and (e) relate to contention 1(P) which states:
t A standard installation of open-head, water spray sprinklers controlled by an automatic deluge valve and products-of-combustion actuated detectors should be provided in each cable spreading room.,
The deluge valve should be located outside the room and connected to the plant's annunciator system.
Interrogatories 7(d) and (e) request an explanation of the terms "automatic deluge valve" and "products-of-combustion actuated detectors" as used in that contention.
Intervenor objected simply replying that explanations of those terms "are equally available to thc Applicant."
Thus Intervenor objects to providing any explanation of the terms used in his contentions essentially on the grounds that such information is "more available to Applicant than to the Intervenor" or "it is not Inter-venor's job to define technical terms for the Applicant."
These responses are totally inappropriate and in complete disregard of the Rules of Practice.
In addition, Intervenor appears to badly misconstrue nis role in this proceeding.
As stated by tha Board in the ~P11 ria case,
[I]t has been uniformly recognized that the discovery rules are to be accorded a broad and liberal treatment so that parties may obtain the fullest possible knowl-edge of the issues and facts before trial As to the permissible areas of discovery, the authori-ties are clear that interrogatories seeking specifica-tion of the facts upon which a claim or contention is based are wholly proper,,
and that the party may be re-quired to answer 'questions which attempt to ascertain the basis for his claim or, for example, what defi-ciencies or defects were claimed to exist with respect
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to a particular situation or cause
[Boston Edison "Co.
(Pilgrim Nuclear Generating Station, Unit 2) LBP-75-30, NRCI-75/6 579, 582 (June 6, 1975); footnote omitted].
By this motion, what the Licensee is seeking is merely some expla-nation and elaboration of the technical terms.used in Intervenor's conten-tions. It is totally nonresponsive to reply'that "the definition is equally available" to the Licensee or that it is "not Intervenor's job" to def:ine 0
.such terms. It is clear that the Intervenor carries the burden of going forward with his contentions, Commonwealth L'dison Co. (Zion Station, Units 1 and 2) ALAB-226, RAI-74-9 381, 388 (Sept.
5, 1974), and, likewise, carries the burden of defining what is meant by each contention.
Intervenor's objections to these interrogatories. indicate an atti-tude that an intervenor has a,right to make allegations without even explain-ing those allegations.
Licensee's interrogatories seek to establish the mean-ing and scope of those contentions.
As the Appeal Board in 51idland stated:
One of the justifications for public participation in
[the adjudicatory] process is the additional input which intervenors may contribute to the identification and resolution of relevant issues, and the assistance they may provide an agency in fulfillingits statutory mandates
[citing Office of Communication of the Church
'f Christ v. P.C.C.,
359 F.2d 994, 1005 (D.C. Cir. 1966)].
In short, the right of participation in an administra-tive proceeding carries with it the obligation of a party to assist in "making the system work" and to aid the agency in discharging the statutory obligatons'ith which it is charged
[Consumers Power.
Co.
(Hidland Plant, Units 1 and 2) ALAB-123, RAI-73-5 331, 332 (May 18, 1973)].
Here Intervenor appears to believe he possesses a right to make allegations but bears no duty to substantiate or even explain those allega-tions.
That certainly does not assist in resolving any issues in this pro-ceeding or in "making the system work."
Licensee has a right to have t'e
terms explained.
It is entirely possible that the Intervenor's concept of the meanings of the terms could differ widely from the Licensee's use of such terms.
Interrogatories 4(e), (f), and (g) relate to contention 1(C) which states "TVA should be required to use cables that do not liberate corrosive gases."
Xnterrogatories 4(e), (f), and (g) seek to elicit the infoxmation-known by the Intervenor concerning the existence of commercially manufac-tured electrical cable that does not liberate corrosive gases and Inter-v'enor's opinion of whether such cables are suitable for use in the Browns Ferry Nuclear Plant.
Interrogatories 4(e), (f), and (g) provide as follows:
(e) What type of cable insulation currently manufactured does not liberate corrosive gases?
(f) Identify the specific types of cables and their re-spective manufacturers.
(g) Are such cables suitable for use in the Browns Ferry Nuclear Plant, Units 1 and 2?
Intervenor objected to these interrogatories on the grounds that It is not I'ntexvenor's role to do research for Applicant that Applicant should do itself This interrogatory, however, in no way requixes Intervenor to do research for TVA. It merely seeks to elicit what information is known by the Intervenor.
If no such information is known, Xntervenox should respond accordingly.
Interrogatory 5(h) relates,to contention 1(D) which states "TVA should be required to have the power supply 'to the ventilation system for all potential fixe axeas outside the fire areas."
Interrogatory 5(h) seeks to elicit the Intexvenor's opinion concerning the necessity for compliance
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with contention 1(D) regardless of other safety precautions already taken and regardless of economic costs involved.
Intervenor objected to inter-rogatory 5(h) replying:
"This interrogatory is too general and garbled to respond to."
This interrogatory is in no way "general" but is specifically ad-dressed to contention 1(D).
The purpose of the interrogatory is to elicit Intervenor's opinion concerning whether he believes conformance with the design requirements of contention 1(D) is necessary regardless of other safety precautions already taken and regardless of the economic costs in-volved.
The interrogatory then requests the Intervenor to "particularize your reasons and specify your factual bases."
This interrogatory is spe-cific'nd understandable.
Accordingly, Intervenor should be compelled to respond.
CONCLUSION Xn view of the foregoing, Licensee requests that the Board grant Licensee's motion and order Intervenor to respond fully in writing, under, oath or ffirmation, to the above interrogator'ies.
Respectfully submitted, Herbert S.
- Sanger, Ji'.
General Counsel Tennessee Valley Authority Knoxville, Tennessee e.-,s ~
Lewis E. Wallace Deputy General Counsel David G. Powell Assistant General Counsel
'70
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Bruce H. Rosenberg Attorneys for Licensee Knoxville, Tennessee liay 13, 1976
UNITED STATES OF AHERICA, NUCLEAR REGULATORY COHHISSION Before the Atomic Safety and Lic'ensing Board In the Hatter of TENNESSEE VALLEY AUTHORITY (Browns Ferry Nucl'ear Plant Units 1 and 2)
Docket Nos.
50-259 50-260 PROPOSED FORH OF ORDER COHPELLING DISCOVERY Applicant has moved pursuant to 10 C.F.R. 5 2.740(f)
(1975) for an order to compel Intervenor William E. Garner to respond to certain inter-rogatories propounded by Licensee.
Licensee's interrogatories were served on Intervenor on April 16, 1976.
The Board has examined the interrogatories and determined that they are reasonable and within the scope of permissible discovery as set forth in 10. C.F.R.
5 2.740 (1975).
f Several of the interrogatories (l(b) and (c); 5(d) and (e); 6(d);
and 7(d) and (e)) seek an explanation of certain terms as used by Intervenor in contention 1.(tr. 10-11).
Intervenor generally responded that that infor-mation is "more available" to the Licensee or it is "not Intervenor's job".
to explain such terms.
Insofar as those interrogatories merely seek an ex-planation of the texms used in the Intervenor's own contentions, such intex-rogatories are entirely appropriate.
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Xt is well settled that the burden of going forward with specific allegations made by an intervenor is on that party. 'Commonwealth Edison Co.
(Zion Station, Units 1 and 2) ALAB-226, RAI-'74-9 381, 388 (Sept.
5, 1974),
Accordingly, there is no doubt that a party advancing a contention is re-quired to fully explain and specify the meaning of that contention.
The Licensee's interrogatories 4(e), (f), and (g) 'relate to con-tention 1(C) which states "TVA should be required to use cables that do not liberate corrosive gases."
Xnterrogatories 4(e), (f), and. (g) seek to elicit the -nfcrmation known by the Xntervenor concerning the existence of commer-cially manufactured electrical cable that does not liberate corrosive gases and.Intervenor's opinion of whether such cables are suitable for use in the Browns Perry Nuclear Plant.
If Intervenor has no such knowledge, he should respond accordingly.
'I Interrogatory 5(h) relates to contention 1(D) (tr. 10) which states "XV~ should be required to have the power supply to the ventilation system fo=. all ".otentia1 fire areas outside the fire areas."
Xnterrogatory 5(h) seeks to elicit Intervenor's opinion concerning the necessity for comp3i-ance with contention 1(D) regardless of othor 'safety precautions already taken and regardless of economic costs involved, Despite Intervenor's I
objection that "ft]his interrogatory is too general and garbled to respond to," the Board finds this interrogatory specifically addressed to conten-tion l(D) and readily understandable, 1
follows:
The Board has reviewed the pleadings in this matter and finds as
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Licensee's interrogatories 1(b) and (c); 4(e), (f), and.(g);
5(d), (e), and (h); 6(d); and 7(d) and (e) are reasonable and within the scope of permissible discovery; (2) Xntervenor's objections are not well founded and are without merit.
Accordingly, the Board directs Xntervenor William E, Garner to respond fully to Licensee's interrogatories as stated above no later than E
rive days from the date of this order and such responses shall be in writ-ing and under oath or affirmation.
FOR THE ATOi~fIC SAFETY AND LICENSING BOARD Thomas W. Reilly, Esq.,
Chairman Issued at Bethesda, Maryland tl's day of 1976
f'
UNXTED STATES OF AHERICA NUCLEAR REGULATORY COHHISSION Before the Atomic Safety and Licensing Board Xn the Hatter of TEhiKSSEE VALLEY AUTHORITY (Browns Ferry Nuclear Plant Units 1 and 2)
Docket Nos.
50-259 50-260 CERTXFICATE OF SERVICE I hereby certify that I have served the original and 20 conformed copies of the following documents on the Nuclear Regulatory Commission by'epositing them in the United States mail, postage prepaid and addressed o Se retary, U.S. Nuclear Regulatory Commission, Washington, D.C.
- 20555, Attention:
Chief, Docketing and Service Section:
Licensee's Notion for an Order to Compel William E.
Garner to Respond to Certain Interrogatories Licensee's Brief in Support of Notion fo'r an Order to Compel William E. Garner to Respond to Certain Interrogatories and that I have served a copy of each of the above documents upon the per-sons listed below by depositing it in the United. States mail, postage pre-paid 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
Dr. Hugh C. Paxton Los Alamos Scientific Laboratory P.O.
Box 1663 Los Alamos, New Mexico 87544 James R. Tourtellotte, Esq.
Lawrence E. Brenner, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Mashington, D.C.
20555 Hilliam E., Garner, Esq.
Route 4, Box 354 Scattsboro, Alabama 35768 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Liashington, D,C, 20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mashington, D.C.
20555 This, 13th day of May, 1976.
Bruce M. Rosenberg Attorney for Licensee Tennessee Valley Authority