ML19296B208
| ML19296B208 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 01/29/1980 |
| From: | Biddle C, Newman J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002200269 | |
| Download: ML19296B208 (11) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY,
)
Docket Nos.
)
50-499 OL (South Texas Project,
)
Units 1 & 2)
)
APPLICANTS' MOTION TO COMPEL CITIZENS FOR EQUITABLE UTILITIES, INC.
TO ANSWER APPLICANTS' FIRST SET OF INTERROGATORIES Houston Lighting & Power Company, Project Manager of the South Texas Project, acting on behalf of itself and the other applicants, the City of San Antonio, Texas, acting by and through the City Public Service Board of the City of San Antonio, Central Power and Light Company and the City of Austin, Texas (hereinafter " Applicants"), moves the Board under 10 CFR 52.740(f) for an order compelling intervenor Citizens for Equitable Utilities, Inc. (CEU) to provide more specific answers to Applicants' First Set of Interrogatories and Requests for Production of Documents From Houston Lighting
& Power Company et al,
To Citizens For Equitable Utilities dated November 5, 1979.
On January 14, 1980, some three weeks after the deadline set forth in the Board's August 3, 1379 Memorandum and Order, CEU filed incomplete answers to 8002200 2(1
Applicants' interrogatories.
For the reasons discussed below, the Board should order CEU to provide full and re-sponsive answers to each of Applicants' interrogatories.
Contentions 1 and 2 In its August 3 Memorandum and Order, the Board stated that it would consider CEU and intervenor Citizens Concerned About Nuclear Power (CCANP) as cosponsors of Contentions 1 and 2 relating to alleged construction de-ficiencies (p. 9).
Applicants served indentical interroga-tories relating to Contentions 1 and 2 on both CEU and CCANP.
(Applicants' Interrogatories A.
1-38, pp. 6-15 and B.
1-4, p. 16).
CCANP responded to those interrogatories on De. ember 26, 1979.
CEU has. chosen not to repsond to these interrogatories, but states that it " reserves the right to file a supplement to and/or clarification of any portion of Further, CEU states that it "will noc CCANP answers be limited nor bound by CCANP answers." (p. 1).
CEU has an obligation under the Commission's discovery regulations to respond at this time to Applicants' interrogatories based upon information which it now possesses.
Certainly, CEU must have some information which it used as a basis for filing the original contention.
If CEU has no f
information (i.e.,
no information was used as a basis for filing the contention) then it should state that fact in response to the specific interrogatory.
CEU cannot, on the one hand, refuse to provide answers to these interrogatories, and, on the other hand, claim that it will not be bound or limited by CCANP's answers.
CEU should understand that if it refuses to answer Applicants' interrogatories relating to Contentions 1 and 2, it will be bound, subject to supplemen-tation based on newly discovered information, by CCANP's answers.
Accordingly, Applicants request the Board to order CEU to answer Applicants' Interrogatories A. 1-38 and B.
1-4.
Further, CEU should be instructed by the Board that it cannot refuse to answer Applicants' interrogatories nor refuse to provide information in its possession, including the identity of witnesses to be called by CEU, based on what CEU describes as " fear of harassment" for unidentified present and former employees at the South Texas Project (STP).
This reason provides no basis for refusing to respond to reasonable discovery requests.
See General Electric Company (Vallecitos Nuclear Center, General Electric Test Reactor)
LBP-78-33, 8 NRC 461, 465-66 (1978).
Contention 4 CEU's Contention 4 alleges that (1) the design and construction of Category I structures and equipment are inadequate to withstand hurricane wind loadings and (2) missile type projectiles from non-Category I structures may cause damage to Category I structures.
In interrogatories C.
1-9 (pp. 16-18), Applicants sought to probe the bases for this contention by asking CEU, inter alia, to identify the structures which are not designed to withstand hurricane forces and to identify actual wind velocities exceeding the design wind loadings on STP structures.
All of the questions in interrogatories C.
1-9 are relevant to CEU's Contention 4.
In response to these interrogatories, CEU states that (1) it has not selected an expert witness at this time because the date for the evidentiary hearing has not been scheduled, (2) it will not supply information to interrogatory C-3 until the expert is selected and (3) Contention 4 is related to QA deficiencies and certain persons who are working or have worked at the STP and request their names not be disclosed until the hearing for fear of retaliation.
In effect, CEU has stated that it will not answer Applicants' interrogatories as required by the Commission's regulations.
None of the reasons given by CEU provide grounds for its wholesale refusal to answer Applicants' interrog-atories.
It is conceivable that CEU has no information to answer the interrogatories and therefore has no basis at all to support the filing of this contention.
If such is the case, CEU should state that fact in response to each question.
The selection of expert witness and the testimony of " secret" witnesses is totally unrelated to CEU's clear obligation to respond fully, candidly, and promptly to all discovery requests.
CEU can not avoid this obligation.
Accordingly, the Board should order CEU to answit Applicants' interrog-atories C.
2-9.
Contention 5 In Contention 5, CEU alleges that the Staff's treatment of radionuclide bioaccumulation in aquatic organisms is inadequate.
Applicants posed interrogatories D.
1-7 (pp. 18-21) to, ascertain from CEU information relating to just how the Staff's analysis was inadequate.
In response to these interrogatories CEU names a person upon whom it intends to rely with the statement that " Material provided by Mr. Reed will be made available as soon as it is received by CEU" (p. 4).
This statement is totally insufficient to relieve CEU of the responsibility of responding to inter-rogatories D.
2-7.
CEU, without any explanation or objection, has simply chosen to ignore Applicants' questions.
The Board should order CEU to respond to interrogatories D. 2-7.*/
- /
Applicant assumes that Dr. Kitto, identified by CEU on page 4 of its an'swers is the person from whom Applicants may obtain the documents identified in interrogatory D.
1.
(
Contention 6 CEU's Contention 6 alleges that calculations of radionuclide deposition rates by the Applicants and Staff do not take into account the relatively high humidity in the STP area.
In interrogatories E.
1-9 (pp. 21-22), Applicants sought information from CEU as to how the Applicants and Staff calculations were in error and the basis, if any, of CEU's allegation that compliance with 10 CFR Part 50, Appendix I will not be met.
In response, CEU merely states '. hat "Research and study has been initiated but not completed.
When completed, it will be furnished to all parties." (p. 4).
This response is patently inadequate and clearly indicates that CEU has made no real effort to comply with Applicants' discovery request.
Again, CEU must have some information in hand which it relied upon as support for the filing of this contention.
If CEU does not have any information to answer the interrogatories, it should so state.
The Board should compel CEU to provide answers to Applicants' interrogatories E.
1-9.
Contention 7 In Contention 7, CEU alleges that Applicants "will not be able to maintain the 7,000 acre cooling pond at a sufficient level to allow continued safe operation of STP."
r In interrogatories F.
1-9 (pp. 22-25), Applicants sought in-formation from CEU relating to the soil conditions, water flow in the Colorado River, and groundwater supply, all factors which CEU alleges will prevent Applicants from maintaining the cooling pond at a sufficient level.
In response, CEU states that it has no intention of writing a
" book", but will provide at some unspecified time a " general outline of documentation and evidence that CEU proposes to present."
(p. 4).
This approach by CEU, which is typical of its other responses, is completely unacceptable.
There is nothing overly burdensome in Applicants' interrogatories.
All litigants have the obligation to disclose to an opposing party the factual basis for their allegations.
CEU was asked only to state the bare facts from which it proposed to fashion an affirmative case.
CEU was not asked to write a
" book."
CEU has not provided any grounds upon which it can avoid the clear obligation to detail the factual predicate of its contentions.
Applicants wish only to find out what CEU knows about its contentions, and they have a right to inquire comprehensively.
See Pennsylvania Power & Light, et al. (Susquehanna Steam Electric Station, Units 1 and 2),
Docket Nos. 50-387, et al.,
" Memorandum and Order Denying CAND Petition and Motions" (January 4, 1980) slip op at 3.
I Accordingly, the Board should compel CEU to answer inter-rogatories F.
1-9.
Contention 8 CEU's Contention 8 is concerned with the inadequacy of the STP emergency plans.
Applicants asked 5 interrogatories (G.
1-5,
- p. 25) which requested specific information un'derlying the charges that STP emergency plans would not meet NRC requirements.
In response, CEU answered only interrogatory G.
4, ignoring the remaining 4 interrogatories and appending the cryptic statement that it will present testimony on
" evacuation plans that are now being formulated.
As soon as it is complete it will be made available."
(p. 6).
This statement is in no way responsive to Applicants' inter-rogatories, offers no defensible objection or privilege, and is a refusal to respond.
CEU should not be permitted to disregard the Commission's discovery regulations and this Board's discovery order.
Accordingly, the Board should i
compel CEU to answer Applicants' interrogatories G.
1, 2,
3 and 5.
Respectfully submitted, TS Melbert D.
Schwarz f/ /
C. Thomas Biddle, Jr.
Charles G. Thrash, Jr.
3000 One Shell Plaza Houston, Texas 77002 Jack R. Newman Robert H.
Culp 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 OF COUNSEL:
Attorneys for HOUSTON LIGHTING &
Baker & Botts POWER COMPANY, Project Manager 3000 One Shell Plaza of the South Texas Project, Houston, Texas 77002 acting herein on behalf of itself and the other Applicants, Lowenstein, Newman, Reis, THE CITY OF SAN ANTONIO, TEXAS, Axelrad & Toll acting by and through the City 1025 Connecticut Avenue, N.W.
Public Service Board of the City Washington, D.C.
20036 of San Antonio, CENTRAL POWER AND LIGHT COMPANY and THE CITY OF AUSTIN, TEXAS MS-4-G i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF S
S HOUSTON LIGHTING & POWER S
Docket Nos.
6 STN 50-499-OL 5
(South Texas Project, S
Units 1 and 2)
S CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Applicants Motion to Compel Citizens for Equitable Utilities, Inc. to Answer Applicants' First Set of Interrogatories in the above-captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand delivery this 29th day of January, 1980:
Charles Bechhoefer, Esq., Chairman Atomic Safety and Licensing Board U.
S.
Nuclear Regulatory Commission Washington, D.C.
20555 Dr. James C.
Lamb, III 313 Woodhaven Road Chapel Hill, North Carolina 27514 Dr. Emmeth A. Luebke Atomic Safety and Licensing Board U.
S. Nuclear Regulatory Commission Washington, D.C.
20555 Henry J. McGurren, Esq.
Hearing Attorney Office of the Executive Legal Director U.
S. Nuclear Regulatory Commission Washington, D.C.
20555 l
Richard W.
Lowerre, Esq.
Assistant Attorney General for the State of Texas P.
O.
Box 12548, Capitol Station Austin, Texas 78711 Honorable Burt O'Connell County Judge, Matagorda County Matagorda County Court House Bay City, Texas 77414 Mrs. Peggy Buchorn, Executive Director Citizens for Equitable Utilities Route 1, Box 432 Brazoria, Texas 77422 Steven A.
Sinkin, Esq.
116 Villita San Antonio, Texas 78205 Atomic Safety and Licensing Board Panel U.
S.
Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Appeal Board Panel U.
S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Chase R.
Stephens Docketing and Service Section Office of the Secretary of the Commission' U.S. Nuclear Regulatory Commission Washington, D.C.
20555 0'
WES C.
Thomas Biddle, Jr.(/
Date:
January 2, 1980 MS:04:H i