ML19260D282
| ML19260D282 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 01/29/1980 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002080256 | |
| Download: ML19260D282 (10) | |
Text
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6 January 29, 1980 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
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HOUSTON LIGHTING AND POWER
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Docket Nos.
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50-499
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(South Texas Project, Units 1
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and 2)
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NRC STAFF MOTION FOR AN ORDER COMPELLING CITIZENS FOR EQUITABLE UTILITIES TO RESPOND TO CERTAIN STAFF INTERR0GATORIES I.
Introduction and Background On November 5, 1979, the NRC Staff (Staff) filed a series of interrogatories directed to Citizens for Equitable Utilities (CEU) in the captioned proceeding.
CEU's responses to these interrogatories were to be filed by December 21, 1979.E On January 3,1980 the Staff filed a motion to compel discovery since as of that date the Staff had not received CEU responses to the Staff interrogatories.
On January 14, 1980, CEO filed its responses to the Staff's interrogatories (hereinafterreferredtoas" Response").U In the Staff's view certain of the answers are not fully responsive and some of the Staff's interrogatories lf See Board's Order dated August 3,1979, at 10 y
As indicated in "NRC Staff Motion for Extension of Time" dated January 23, 1980, these responses were not received at the NRC OELD mall ro ntil i
January 21, 1980.
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. are not answered at all. The specific interrogatories that the Staff seeks an order compelling responsive answers and the bases for the Staff's request are set forth below.
II.
Bases for Staff's Request for Order Compelling Responsive Answers to Certain Staff Interrogatories A.
Staff Interrogatories 1-1 through 1-16 and 2-1 through 2-5 CEV has made no effort to respond to any Staff interrogatories relating to contentions 1 and 2.
When the Board admitted these contentions, it stated its expectation that CCANP and CEU would coordinate their presentations as to these contentions. Order of August 3, 1979 at 9.
While the Board and parties are treating these contentions as joint contentions of CCANP and CEU, proper pretrial preparation requires that the Staff determine from each organization the bases underlying these contentions and whether or not the bases are the same for each organization.
In its Response, at 1, CEU states that it reserves the right to file a supplement to or clarification of any portion of CCANP's answers to these two contentions.
From this response, the Staff is unable to ascertain whether CEU adopts CCANP's answers or whether it intends to supplement or clarify the answers.
In sum, CEU has not provided any meaningful response to the Staff's interrogatories on these contentions which defeats the purpose of discovery.E For this reason, the y
"In short, the purpose of discovery is to enable each party prior to hearing to become aware of the positions of each adversary party on the various issues in controversy, and the information available to adversary parties to support those positions" Pennsylvania Power &
Light Company and Allegheny Electric Cooperative, Inc., (Susquehanna Steam Electric Station, Units 1 and 2) Memorandum and Order on Sched-uling and Discovery Motions (August 24,1979) Slip. Op. at 5-6.
1938 193
Staff requests that the Board direct CEU to answer the Staff's interrogatories relating 'to contentions 1 and 2 in compliance with the Commission's Rules of Practice which provides that each party served with an interrogatory must fully answer each interrogatory or object to the interrogatory stating the reasons for such objection.
10 CFR 6 2.740b.
B.
Staff Interrogatories 4-5 and 4-6 CEV has failed to provide a meaningful response to Interrogatories 4-5 and 4-6.O These interrogatories request specific infonnation which would indicate the bases, if any, for CEU's contention that the South Texas Project (STP) Cate-gory I structures and equipment are inadequately designed and constructed with respect to wind loadings and CEU's contention that there are non-Category I structures containing equipment which if destroyed or damaged would jeopardize the safe operation of STP.
p Interrogatory 4-5 4-5. Indicate the wind velocities and resulting wind loadings (setting forth calculations, assumption and bases for assumptions) which you believe should serve as the basis for the design of the Cate-gory I structures and equipment at STP.
Interroc atory 4-6 4-6. Incicate specifically the equipment in the non-Category I struc-tures "which if destroyed or damaged would jeopardize the safe operation of STP." With regard to the destruction or damage of such equipment, specifically explain how such damage or destruc-tion would occur and how the safe operation of STP would be jeopardized.
In your response to this interrogatory set forth all assumptions and bases for each assumption.
1938 194 CEU's answer, which is not directed to any particular interrogatory, is not responsiv'e to either interrogatory 4-5 or 4-6.
The answer merely indicates difficulties with identification of witnesses, citing problems with scheduling and fear of " retaliation".
No support is provided for this expressed fear.
In any event, this should not be a reason for failure of CEU to respond to the Staff's interrogatories which call for the information which served as the basis for CEU's contention.
Failure to provide such infonnation defeats the purpose of discovery which is to alert the parties as to the specifics of a party's position so that it can be meaningfully and directly addressed.
See fn. 3, supra.
Accordingly, the Staff requests that CEU be directed to provide full, direct, responsive answers to Staff interrogatories 4-5 and 4-6.
C.
Staff Interrogatories 5-4 and 5-5 CEV has failed to provide a meaningful response to Interrogatories 5-4 and 5-5.E y
Interrogatory 5-4 5-4. Specify in detail (setting forth all assumption and bases for each assumption) how the Staff's treatment in FES section 5.4.3.1 and Table 5.7 regarding bioaccumulation of radionuclides in aquatic organisms is inadequate or in error.
Interroaatory 5-5 5-5. Indicate specifically for each aquatic organism (setting forth all assumption and bases for each assumption) how bioaccumulation of radio-nuclides should be accounted for.
1938 195 These interrogatories request infonnation which would indicate the bases; if any, for CEU's contention that the Staff's treatment in the construction permit FES, section 5.4.1.3 and Table 5.7, of bicaccumulation of radionuclides in aquatic organisms is inadequate or in error.
CEU does not answer these interrogatories but merely indicates that it is
" conferring with several persons in this area," identifying one person Mr. C. B. Reed.
CEO further indicates that material is to be provided by Mr. Reed and that "research and study" has been initiated and when completed will be furnished to all parties. This answer is totally unresponsive.
The Staff submits t%t it, the Licensing Board and parties are entitled to know the bases for Intervenor's assertions in Contention 5.
Yet CEU responds that it cannot yet identify any bases for this contention notwithstanding having formulated the contention almost eight months ago.O The Staff requests that CEU be directed to provide a full, direct and responsive answer to Staff interrogatories 5-4 and 5-5.
If CEV has no basis for con-tention 5, it should so state.
6/
See " Supplement to Citizens For Equitable Utilities Original Petition",
dated May 29, 1979.
1938 196 D.
Staff Interrogatories 6-4 and 6-5 CEV has failed to provide a direct, responsive answer to Interrogatories 6-4 and6-5.E These interrogatorier request infomation clarifying the assertions in contention 6 and the sources of the information.
In answer to all of the Contention 6 interrogatories CEU merely indicates that research and study has been initf ated but not completed.
Further it is indicated that specific witnesses have not yet been identified.
The Staff submits that it is entitled to have clarified the terms used in the drafting of contention 6.
Yet, almost 8 months after CEU fomulated this contention, it merely indicates that research and study has been ini-tiated. This answer is totally unresponsive. What is sought by this inter-rogatory is an understanding of what CEO meant when it filed contention 6, not what research and study CEU is doing in this area.
Further, CEU made no y
Interrogatory 6-4 6-4. Specify the " continual" humidity levels that are referenced in Con-tention No. 6. noting for each level of humidity the Wrce of the information.
In your response state whether the humicity levels are in terms of absolute or relative humidity, and if in terms of relative humidity, specify the range of temperatures associated with each level of humidity.
Interrogatory 6-5 6-5. Identify all documentary or ?ther material that you intend to use during this proceeding to support this contention and that you intend to offer as exhibits on this contention or refer to during your cross-examination of witnesses presented by applicants and/or the NRC Staff.
1938 197 attempt at all to provide the list of documents requested by interrogatory 6-5 or explain why such a list could not be provided.
Accordingly, the Staff requests that CEV be directed to provide full, direct and responsive answers to Staff interrogatories 6-4 and 6-5.
E.
Staff Interrogatories 7-1 through 7-7 With the exception of providing a list of documents which the Staff assumes responds to its interrogatory 7-8, CEV has completely failed to answer its interrogatories on Contention 7 Accordingly, the Staff requests that CEU be directed to provide a full, direct and responsive answer to Staff inter-rogatories 7-1 througn and including 7-7.
F.
Staff Interrogatories Concerning Persons CEV Has Relied Upon Finally, we note that CEU failed, in its response to interrogatories on Contentions 4 through 6 and 8, to:
a) indicate the person CEU relies upon to substantiate its contentions (See 4-la, 5-la, 6-la, and 8-la); b) provide the education and professional qualifications c/ such persons (See 4-lb, 5-lb, 6-lb, and 8-lb); c) and provide summaries of these person's views stating the specific bases and references supporting such views (See 4-2 and 4-3, 5-2 and 5-3, 6-2 and 6-3, and 8-2 and 8-3).
In each of CEU's answers to the Staff's interrogatories there is only a general statement that wit-nesses have not yet been identified. The purpose of these interrogatories is to discover the identity of those persons who helped frame and advise CEV in the formation of its contentions.
As stated by the Licensing Board in 1938 198 another proceeding, " Commission proceedings are not to become the setting for 'tria'l by surprise' and the discovery mechanism is the major means used to avoid that situation."
(Jd.,at6) A number of forms of discovery are available under the Commission's Rules of Practice. These include deposi-tions (10 CFR 6 2.740a), written interrogatories (10 CFR 9 2.740b), produc-tion of documents and things or permission to enter upon land or other prop-erty (10 CFR 9 2.741), and requests for admission (10 CFR 6 2.742). Thus, it is commonplace and in order to inquire as to the identity, qualifications and views of those persons relied upon in the development of a party's case and perhaps, to subsequently seek to depose the identified persons.
Further, it should be noted that the above interrogatories are different from the Staff interrogatories seeking the identification of witnesses (See Staff interrogatories 4-Ic, 5-Ic, 6-Ic, and 8-1c).8_/ Accordingly, the Staff requests that CEU be directed to respond to the above noted interrogatories concerning persons CEU is relying upon to substantiate its case on conten-tions 4, 5, 6 and 8.
III. Relief Souaht Based on the foregoing, the Staff respectfully requests an Order compelling CEV to provide full, direct and responsive answers to interrogatories 1-1
_8]
The Staff notes that the Commission's Rules specifically provide with respect to supplementing interrogatory responses that "... [a] party is under a duty seasonably to supplement his response with respect to any question directly addressed to...(ii) the identity of each person expected to be called as an expert witness at the hearing, the subject matter on which he is expected to testify, and the substance of his testimony.
10 CFR Q 2.740(e).
1938 199
. through and including 1-16, 2-1 through and including 2-5, 4-la and b, 4-5 and 4-6, 5-la and b, 5-4, 5-5, 6-la and b, 6-4, 6-5, 7-1 through and including 7-7, and 8-la and b filed by the Staff on November 5,1979.
Respectfully submitted, f
.s#
9'/' v HenNy.
McGurren Couns for NRC Staff Dated at Bethesda, Maryland this 29th day of January,1980 1938 200
9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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HOUSTON LIGHTING AND POWER COMPANY, )
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50-499
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(South Texas Project, Units 1 and 2 )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF MOTION FOR AN ORDER COMPELLING CITIZENS FOR EQUITABLE UTILITIES TO RESPOND TO CERTAIN STAFF INTERR0GA-TORIES" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 29th day of January, 1980:
Charles Bechhoefer, Esq., Chairman
- Richard W. Lowerre, Esq.
Atomic Safety and Licensing Board Assistant Attorney General Panel Environmental Protection Division U.S. Nuclear Regulatory Commission P. O. Box 12548, Capitol Station Washington, DC 20555 Austin, TX 78711 Dr. James C. Lamb, III Jack R. Newman, Esq.
313 Woodhaven Road Lowenstein, Newman, Reis, Chapel Hill, NC 27514 Axelrad & Toll 1025 Connecticut Avenue, N.W.
Dr. Emmeth A. Luebke*
Washington, DC 20036 Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel
- Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Melbert Schwarz, Jr., Esq.
Baker and Botts Atomic Safety and Licensing Appeal One Shell Plaza Panel (5)*
Houston, TX 77002 U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Lanny Alan Sinkin Citizens Concerned About Nuclear Docketing and Service Section (5)*
Power Office of the Secretary 838 E. Magnolia U.S. Nuclear Regulatory Commission San Antonio, TX 78212 Washington, DC 20555 Mrs. Peggy Buchorn Executive Director Citizens for Equitable Utilities, Inc.
Route 1, Box 432 Brazoria, TX 77422 B
1938 201 3
fflo w H4nryJ./ficGurren Counsel'4or NRC Staff