ML19275A334
| ML19275A334 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 08/24/1979 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7910040123 | |
| Download: ML19275A334 (17) | |
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UNITED STATES OF AMERICA g
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p ATOMIC SAFETY AND LICENSING BOARD N
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'In the Matter of
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PENNSYLVANIA POWER & LIGHT COMPANY
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Docket Nos. 50-387 and 50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam Electric Station,
)
Units 1 and 2)
)
MEMORANDUM AND ORDER ON SCHEDULING AND DISCOVERY MOTIONS (August 24, 1979)
Our Special Prehearing Conference Order of March 6, 1979 (LBP-79-6, 9 NRC 291) established a preliminary schedule for the prehearing phases of this proceeding and provided for the initiation of discovery on the basis of that schedule.
Insofar as here relevant, discovery was to commence on the issuance of that Order, first-round discovery requests were to be submitted by May 25, 1979, and responses to those requests were to be filed by June 29, 1979.
Supplemental discovery requests on information in the first-round responses were to be submitted within 30 days of service of those first-round responses.
In addition, supple-mental discovery requests on environmental issues were permitted to be filed by August 2, 1979.1!. Responses to either type of 1100 128
-1/
30 days after service of the DES.
The DES was served by mail on June 28, 1979.
Adding 5 days for mailing, the service date becomes July 3, 1979.
See fn. 4, intra.7910040/ 2 3 esW '
G
supplemental discovery request are to be filed within 30 days of service of the request.
A number of motions relating to scheduling and discovery have been filed by various p:<rties to this proceeding.
We will treat each of them herein.
A.
CAND and Ms. Marsh have filed motions to revise the pre-Liminary schedule adopted by the Board.
The Applicants and NRC Staff each oppose both motions.
No other party has taken a position.
1.
Before addressing these specific motions, some gen-eral comments on the basic philosophy of sch.7duling which we envisage for this proceeding, and which we expect to follow to the extent practicable, is in order.
A wide variety of issues has been admitted to this precer: ding.
We fully expect that they will be ready for litigation at widely divergent times.
Some will be affected by ongoing studies e=anating from the recent Three-Mile Island (TMI) accident, but the accident will have no bearing on many of them.
We would expect to gear the hearing schedule to the availability of information on a given subject --- and, most particularly, to the issuance of staff review documents covering the subject in question.
This is consistent with the Commission's mandate to conduct hearings "as expeditiously as po.s sible, consistent with the development of an adequate deci-sional record."
10 CFR Part 2, Appendix A, SV, 3
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For that reason, several distinct hearing sessions covering discrete issues are a likely possibility.
We would also expect generally to hear environmental issues separate from (and prior to) radiological health and safety questions.
In determining hearing schedules, we will, of. course, take into accounr (although we may not always be able to grant) the reason-able requests of all the parties.
The preliminary schedule we have already adopted is flexible enough to accommodate these general goals.
2.
As grounds for their motions, CAND and Ms. Marsh each rely in substantial part on the unfolding events at TMI.
CAND seeks a schedule explicitly tied to TMI developments and studies, whereas Ms. Marsh seeks a general extension of from six.
=entha to one year.
To the extent that "new" information (including studies) emanates from the TMI events, it may, of course, be factored into the hearing process in several ways, including the admission of new contentions or the modification of existing contentions to incorporate it (assuming the necessary relevance).
The existence of "new" information har long been recognized by the Commission as constituting " good cause" for reaching such a result.
Indiana and Michigan Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), CLI-72-25, 5 AEC 13,14 (1972).
Further-core, we are required to take into account new regulations which cay be issued (either as a result of TMI or otherwise).
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. It must be equally emphasized, however, that the TMI accident is likely to have no bearing at all on many of the contentions which we have admitted.
To cite but one obvious example, it is difficult to perceive how CAND's contention deal-ing with the environmental impacts of UEV transmission lines (Board Contention 17) could be impacted by any developments at TMI.
And there is no reason why issues such as this should not be considered prior to issues that might be affected by TMI developments.
For that reason, we see no compelling reason calling for a wholesale abandonment of the schedule we have adopted.2/
It is generally flexible enough to accommodate the circumstances described by CAND and Ms. Marsh.
The motions to modify the general schedule are therefore denied.
As described in the final portion of this memorandum, however several specific modifications of certain aspects of the schedule are in order.
2/
CAND and Ms. Marsh also claim that they were not consulted in the formulation of this schedule.
That is not true.
At the prehearing conference, the Applicants proposed a schedule and the parties were asked to comment on it (Tr.
362-368).
Neither CAND nor Ms. Marsh did so.
In adopting the preliminary schedule, we explicitly noted that it was based on that proposed by the Applicants and not objected to by any then-petitioner (LBP-79-6, 9 NRC at 327). -
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B.
Discovery requests of all intervenors have been filed by the Applicants and the NRC Staff.
CAND has requested discov-ery of the Applicants, the Staff, and the commonwealth of Pennsylvania.
ECNP seeks discovery from the Applicants, the Commonwealth and the NRC Staff.
These discovery requests have generated a number of requests for protective orders and motions to compel discovery.
1.
Before discussing the particular motions, we believe it would be useful to the parties. --- particularly those participating without the assistance of experienced counsel --- to outline certain of the requirements surrounding discovery in NRC proceedings.
A number of forms of discovery are available for instance depositions (10 CFR 52.740a), written interrogatories (52.740b),
production of documents or things or permission to enter upon land or other property ($2.741), and requests for admission
(!2.742).
La a proceeding such as this one, discovery may relate only to those matters which have been accepted by a licensing board as issues in controversy.
But it may seek a broad range of information concerning such issues, includ-ing the claim or defense of any party regarding such issues.
The infor=ation sought need not be admissible at the hearing but must only be reasonably calculated to lead to the discovery of admis-sible evidence.3/
In short, the purpose of discovery is to enable each party prior to hecring to beceme aware of the positions of each 3/
For a comprehensive discussion of discovery in NRC licensing pro-ceedings, see Boscon Edison Co. (Pil Unit 2), LBP-73-30, L NRC 579 (1975) grim Nuclear Generating Station,
.i100 132
adversary party on the various issues in controversy, and the infor-mation available to adversary parties to support,those positions.
Inquiries concerning the genesis of a party's case and the wit-nesses (if any) it intends to use to establish that case are thus commonplace and very much in order.
Commission proceedings are not to become the setting for " trial by surprise," and the discovery mechanism is the major means used to avoid that situation.
Answers to discovery inquiries are important in terms of a party's ability to prepare its case for trial -- particularly so in the case of an applican.t which has the burden of proof in a proceeding of this type.
As another Licensing Bos.rd observed:
The Applicants in particular carry an unrelieved burden of proof in Commission proceedings.
Unless they can effectively inquire into the positions of the inter-venors, discharging that burden may be impossible.
To permit a party to make skeletal cententions, keep the bases for them secret, then require its adversaries to meet any c onceivable thrust at hearing would be patently unfair, and inconsistent with a sound record.
[ Footnote omitted. ]
Northern States Power Comoanv, et al. (Tnone Energy Park,' Unit 1), LBP-77-37, 5 NRC 1298, 1300-01 (1977).
There are instances, of course, when discovery may be abused.
Discovery requests may, for example, be harrassing or irrelevant, unduly burdensome or embarrassing.
But the Commission's rules provide for a remedy for such situations, by authorizing parties to request a protective order.
10 CFR 5 2. 740 (c).
Because discovery is intended to be primarily a 1100 133-matter between the parties, the Board will normally grant a pro-tective order unless the party seeking discovery files a response to the request for such an order.
Where such a response has been filed, the Board will consider the request on its merits.
In that connection, we note that discovery always entails some burden or expense; the lengthy hand-written responses of Ms. Marsh to certain of Applicants' and Staff's interrogatories in this proceeding bear witness to that fact.
Only " undue" burden or expense --- beyond that normally necessary to identi'fy the details of a party's case and the sources of information upon which it intends to rely ---
would normally justify our interference in this process.
A party seeking discovery may file a motion to com-pel discovery where responses to discovery requests are not filed or are incomplete.
10 CFR S 2. 740(f).
Failure to respond adequately to discovery requests (in the absence of obtaining a protective order) may have aerious consequences, in terms of its effect on the adjudication and the rights of other parties.
Therefore, we will expect parties to use every reasonable effort to comply with discovery requests.
If the time limits imposed on discovery are too severe, a party may ask us for relief which, for " good cause"
- shown, may be granted.
Failure to answer dis-covery requests adequately is a sufficient ground for us to take steps as drastic as dismissal of a contention or of a party from the proceeding.
See 10 CFR 552.707, 2.718.
i.
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. In responding to discovery requests, a party is not re-quired to engage in extensive independent research.
It need only revea:
information in its possession or control (although it may bc required to perform some investigation to determine what infor-mation it actually possesses).
Assuming truthfulness of the state-ment, lack of knowledge is always an adequate response.
Pursuant to 10 CFR 52.740(e), however, a party in specified circumstances is required to supplement its responses to reflect newly acquired information.
It should be noted that responses to discovery requests may be deemed relevant to a board's actions on motions for summnry disposition under 10 CFR 52.749.
With these background principles in mind, we turn to the discovery motions before us.
2.
On June 16, 1979, CAND filed a response to the Appli-cants' and Staff's first round discovery requests which, in effect, declined to provide responses to any of those requests.
Thereupon the Applicants (on June 27) and the Staff (on June 28) filed motions to compel discovery.
CAND did not respond to these motions.
Although we could grant the requested motions merely for that reason, we decline that course here, inasmuch as CAND did provide certain general reasons for its position in its June 16 " replies."
Nonetheless, after considering those reasons, we find CAND's refusal to answer questions to be unwarranted and therefore erant the Applicants' and Staff's motions.
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CAND first mentions the TMI accident and refers to its motion (which we denied earlier in this opinion) to modify the preliminary schedule.
Contrary to CAND's claim, the Commis-sion has imposed no general moratorium on licensing proceedings as a result of TMI.
The litigation of some issues may be delayed as a result of studies undertaken as a result of TMI; but adju-ication of others will not be affected.
Responses to discovery, as indicated earlier, need only reflect information currently La a party's possession, subj ect to supplementation at a later date if appropriate.
CAND objects to interrogatories in general terms as "not applicable," " misdirected," " arbitrary," and inconsistent with the allocation of the. ' burden of proof" to the Applicants.
CAND also seems to take issue with the wording of certain of its contentions.
No specific identification of either objectionable interrogatories or contentions is provided.
Such general " evasive" obj ections to discovery are not acceptable.
See 10 CFR 52. 740(f)(1).
To form the basis for a protective. order, specific objections to particular inquiries must be advanced.
Boston Ediscn Co. (Pilgrim Nuclear Generating Station, Unit 2), LBP-75-30, 1 NRC 579, 583 (1975).
Moreover, although the Board did rewrite many of CAND's contentions, it did so in the interest of making them admissible into the proceeding.
If they now are claimed to encompass matters beyond (or different from) those which are stated therein, CAND is 1100 136
. free to so state --- at the risk, of course, of rendering the con-tentionunsuitableforlitigationandhencesubjecttodismissal.bl Finally, we remind CAND that it has itself filed dis-covery requests, and that responses (or requests for a protective order in certain instances) have been furnished.
Fairness demands that comparable discovery rights and obligations govern each of the parties to this proceeding:
Status as a party affords certain rights, including the right to ask questions; but it also involves certain obligations, including the duty to answer questions of other partibs to the proceeding. * *
- A party may not insist upon his right to ask questions of other parties, while at the same time disclaiming any obligation to respond to questions from those other parties.
Offshore Power Svstems (Manufacturing License for Floating Nuclear Power Planta), LBP-75-67, 2 NRC 813, 816-817 (1975).
In view of the foregoing, we find (1) that CAND has failed to respond to discovery requests filed in accordance with the Commission's Rules of Practice and this Board's Order of 4/
CAND was provided 5 days from the date of service to request reconsideration of our Prehearing Conference Order.
It never did so and never sought an extension of time to do so.
It now claims that it did not receivs the Order until the 5 days had passed.
But it ignores the fact that NRC rules provide an additional 5 days where (as here) service is by mail.
See 10 CFR 52.710, which states, in relevant part: "Whenever a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon ~Ln b scribed period. " y mail, five (5) days shall be added to the pre-
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. March 6, 1979, (2) that CAND has failed to seek a protective order with regard to the discovery requests (or alternatively, if the June 16, 1979 " replies" be considered as seeking a protec-tive order, that no valid basis for such an order has been demon-strated), and (3) the June 16, 1979 " replies" constitutes a failure to answer or respond under 10 CFR 52.740(f).
Accordingly, the Board directs CAND to respond fully and properly (or, as appropriate, to file particularized, specific objections) to the Applicants' and Staff's discovery requests of May 25, 1979 and May 21, 1979, respectively, by no later than fourteen (14) days from the date of service of this Order.
3.
On June 29, 1979, the Applicants answered certain of CMD's discovery requests but objected to certain others.
Since CAND has not responded to those objections, we grant the Appli-cants a protective order with regard to the discovery requests which it has listed - subject, however, to the following condition.
Since CAND is not represented by counsel, and since it may not have realized that objections to discovery would automatically be granted absent a response from the party requesting the dis-covery, we grant CAND five (5) days from the serviceN of this Order to file a response to the Applicants' objections.
If no such response is timely filed, the protective order will go into effect.
4.
On June 29, 1979, the Applicants also answered certain of ECNP's discovery requests but objected to certain others.
ECNP has not responded to these objections.
For the reasons stated F
See fn. 4, suora.
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above with respect to CAND, we grant the Applicants a protective order, subject to ECNP's right to file a response to the Appli-cants' objections within five (5) days of the service of this Order.
5.
On June 29, 1979, ECNP filed a request for a protective order with regard to all of the Applicants' discovery requests.
The Applicants on July 16, 1979, filed a response opposing the protective order and asserting a motion to compel discovery.
In its protective order request, ECNP does not pro-vide specific objections to any discovery request.
Rather, it characterizes the Applicants' requests in their entirety as " extra-ordinarily burdensome, oppressive, and utterly pointless" and seeks its protective order on that basis.
As we stated earlier, blanket non-specific obj ections are ' insufficient.
Boston Edison Co.
LBP-75-30, suora; see also Consumers Power Co. (Midland Plant, U its 1 and 2), ALAB-122, 6 AEC 322, 325 fn.14 (1973).
For that n
reason, we grant the Applicants' motion to compel discovery.
In its response to the discovery requests, we will permit ECNP to file a request for a protective order with respect to particular requests, supplying reasons why each discovery request is obj ectionable to it.
In that connection, we note that the Applicants have withdrawn certain of their requests (on the basis of answers provided by ECNP to the Staff's discovery requests) and hence have measurably mitigatec any burden which response may entail.
3 11 00
'2591..
ECNP's response to the Applicants' May 25s 1979 discovery requests, or its specific objections to such requests, must be filed within fourteen (14) days of the service of this Order.
6.
In documents which are undated, but which we received on July 5, 1979, SEA has filed requests for protective orders with regard to both the Applicants' and Staff's discovery requests.
SEA did not supply specific objections to particular discovery requests but asserted, generally, that (1) the discovery sought was not described with sufficient particularity; (2) the responses would require " expert advice which is not presently available" to SEA; and (3) the information requested is irrelevant in part and also within the knowledge of the Applicants or Staff, so that the discovery requests are oppressive and unduly burdensome.
The Applicants and Staff havn not explicitely re-sponded to SEA's protective order requests.
But, with respect to the discovery in question, the Applicants (on July 10) and the Staff (on July 11) filed motions to compel discovery of SEA.
Because the Applicants and Staff made no reference to the SEA requests, we presume they had not been received when the Appli-cants and Staff filed their motions.
SEA also has not answered the Applicants' and Staff's motions.
But because the requests and motions relate to the same material, we will consider the
" issue join d" on such matters and rule as if responses had been
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filed -- i.e., we will treat SEA's requests as a response to the Applicants' and Staff's motions and those motions as responses to SEA's requests.
Under the principles we have previously enunciated, SEA's requests are not sufficiently specific or particularized.
We will afford SEA the same treatment which we granted ECNP.
We are eranting the Applicants' and Staff's motions but permitting SEA to object specifically to particular discovery requests.
Such answers or objections must be filed within fourteen (14) days of the date of service of this Order.
7.
On July 11, 1979, in the same document which dealt with the SEA motion just described, the Staff also moved for an order compelling Ms. Marsh to answer its discovery requests.
The Applicants on July 12 filed a similar motion to compel discovery directed at Ns. Marsh.
In documents served on July 20, 1979, Ms.
Marsh responded to the discovery requests in question.
While somewhat untimely, we commend NB. Marsh for the obvious effort she expended in responding to the discovery requests.
(We express no opiniun, of course, on the adequacy of the responses.)
Ms. Marsh's response to the Applicants' interrogatories also included a request for a protective order with regard to certain interro gatories.
On August 6, 1979, the Applicants indicated that they were satisfied with the answers provided, that they wished to withdraw their motion to compel discovery, and that Ms. Marsh's 1100 14L motion should be dismissed as moot.
We agree.
The Applicants' motion is withdrawn and Ms. Marsh's motion for a protective order is dismissed as moot.
The Staff's motion to compel discovery is also dismissed as moot.
8.
On July 13, 1979, the NRC Staff moved for an order compelling ECNP to respond properly to the Staff's interrogatories.
The Staff described many of the answers which ECNP has provided,
as " evasive and incomplete."
In.some cases, it merely seeks an order requiring ECNP to update its previous answers.
ECNP has not answered this motion.
As indicated earlier, NRC Rules require the updating of responses to certain discovery requests.
We agree with the Staff that the interrogatories relating to the identities, ad-dresses, and professional qualifications, and the subject matter and substance of the testimony of, expert witnesses expected to be called, and the request for the identification and production of documents to be relied on, should be provided at least 60 days in advance of the scheduled hearing date.
We direct ECNP (and other parties as well) to supplement their responses (if required) on that schedule.
We also grant the remainder of Staff's motion for an order to compel more adequate responses to the Staff's discovery requests.
Such responses should be filed within fourteen (14) l 100 F42."-
. days of the date of service of this Order.
Such responses may include, if appropriate, specific objections to particular dis-covery requests.
9.
A number of papers have been filed bearing upon the deposition of Mary K. Creasy which the Staff is atte=pting to take.
We trust that the interested parties can work out their 9
differences, if any, with respect to this deposition.
The Board continues to believe that informa. tion possessed by Ms. Creasy could be useful to the Commission in its consideration of the Applicants' operating license applications.
C.
The proliferation of motions with which we have dealt in this opinion has undoubtedly taken time away from the parties' development of their substantive cases.
This is unfortunate.
But, in view of these circumstances, we helieve it useful to modify the preliminary schedule to permit supplemental discovery requests on environmental issues to be filed no later than September 10, 1979.
(Cnly CAND has thus far filed such requests.)
Supplemental requests on matters appearing in responses to first-round discovery requests may be filed by September 10, 1979 or 30 days following the date of service of the first-round response (including the first-round responses ordered to be answered herein), whichever is later.
Responses to supplemental discovery requests are to be filed within 30 days of service of the request.b/
6/
This discussion is intended to respond to the Staff's letter to the Board dated August 20, 1979.
/
1100 143?
FOR THE ATOMIC SAFETY AND LICENSING BOARD w
v Charles Bechhoefer, Chaiman Dated at Bethesda, Maryland, this 24th day of August 1979.
'1100 144'