ML19309D655
| ML19309D655 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/20/1980 |
| From: | Zahler R METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8004110085 | |
| Download: ML19309D655 (9) | |
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March 20, 1980 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD P
In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
LICENSEE'S RESPONSE TO SHOLLY MOTION TO COMPEL On February 25, 1980, Licensee filed objections to two emergency planning interrogatories propounded by intervenor Steven C.
Sholly.
See " Licensee's Further Objections to the Second Set of Interrogatories From Steven C. Sholly" ("Further Objections").
Mr. Sholly filed a document dated March 3, 1980, and mailed to Licensee's counsel on March 5, 1980, entitled "Intervenor Steven C.
Sholly Motion To Compell [ Sic] Licensee r
Response To Interrogatories"
(" Motion To Compel").
Licensee responds herein to the arguments advanced by Mr. Sholly in support of his Motion To Compel.
Contrary to Mr. Sholly's assertions at pages 2 and 6 of his Motion To Compel, Licensee is not required to seek a protective order when it objects to an interrogatory.
The 80041100?j-
b applicable Commission discovery rules are strikingly parallel to the analogous provisions of the Federal Rules of Civil Procedure.
Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-196, 7 AEC 457, 460 (1974).
Under the Commission's Rules of Practice, like the Federal Rules, the party seeking discovery -- rather than the objecting party --
\\
is responsible for invoking judicial determination of discovery disputes not resolved by the parties.
See " Advisory Committee's Explanatory Statement Concerning Amendments of the Discovery Rules," Moore's Federal Practice, Second Edition, 1 26.00[4] at p.26-25.
In the case of interrogatories, "[i]f objections are made, the burden is on the interrogating party to move for a court [or Board) order compelling answers, in the course of which the court [or Board] will pass on the objections."
" Advisory Committee Note of 1970 to Amended Rule 33," Moore's Federal Practice Rules Pamphlet, Part 1, at p.701 (1975).
t This result is not altered by the Commission's regulations governing discovery.
Section 2.740b(b) directs that each interrogatory be answered "unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer."
Licensee complied with this requirement in its February 25 Further Objections.
Having done so, there is no need for Licensee also to seek a protective order.
Although not as clear as it might be, section 2.740(f)(1) requires a 1
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motion for a protective order only where the responding party has failed to " answer or respond" (emphasis supplied).
In this 1
instance, filing objections constituted a sufficient response so as to obviate the need for a protective order.
This result is confirmed by section 2.740(f)(2) which contemplates that the presiding officer may issue a protective order in ruling on a motion to compel even though no motion pursuant to section 2.740(c) has been filed.
Thus it was incumbent upon Mr. Sholly to move to compel answers to Interrogatories08-019 and 08-024, if he believed Licensee's objections to be meritless; this he has done.
The Motion to Compel should, however, be denied since Licensee's objections to Interrogatories08-019 and 08-024 are well taken.
Interrogatory 08-019 NUREG-0396 at page I-4 concludes that discussion of a spectrum of accidents in Classes 1 through 8 is too limited in scope to be useful in emergency planning.
Identify each statement in Licensee's Emergency Plan which takes into account any accident beyond the design basis of TMI-1.
Specify how Licensee's Emergency Plan takes into account accidents beyond the design basis for TMI-1, l
particularly with reference to assumptions utilized in determining the time available for identification of an accident, assessment of the seriousness of the accident, notification of off-site authorities, implementation of protective actions, and confirmation of the completion of the protective actions.
Discussion
[
Licensee's objection to Interrogatory 08-019 is a very limited one.
In its Further Objections at page 2, License'e stated:
1 As directed by the Licensing Board.
in responding to this interrogatory and to inter-rogatory 08-006 (First Set) Licensee will describe the consideration given to Class 9 accidents in developing its Emergency Plan.
This explanation will provide references to appropriate sections of the Emergency Plan.
[ Emphasis supplied.]
Thus, Licensee clearly indicated that Mr. Sholly would not be required to " wade through reams of irrelevant data."
- Rather, Licensee noted its intention to provide a substantively full and complete response to the interrogatory, directing Mr.
Sholly to the relevant sections of the Emergency Plan, to allow Mr. Sholly to extract "each statement" he desires.
Licensee has today filed such a response.
Mr. Sho11y's attempt to analogize this interrogatory to
. Licensee's interrogatories to various intervenors misses the mark.
Though Licensee has used language similar to that employed here by Mr. Sholly, the scope and context of Licensee's interrogatories differed greatly.
The inter-rogatories propounded by Licensee using such language were designed to ascertain the basis for the contentions of various parties.
[I]t is clear that interrogatories seeking specification of the facts upon which a claim or contention is based are wholly proper, and that a party may be required to answer questions which attempt to ascertain the basis for his claim or, for example, what deficiencies or defects were claimed to exist with respect to a particular situation or cause.
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The Commission's Rules on intervention presume that the parties had specific factual bases for their contentions.
Where the i
discovery request seeks to determine the factual basis for the contention, the intervenor is obliged to provide a complete, unevasive answer to the best of his or her ability.
Power Authority of the State of New York (Greene County Nuclear Power Plant) (December 15, 1978).
See also Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1 and 2) (May 20, 1976).
Thus, an interrogatory seeking all facts or information may be appropriate, as whdre Licensee seeks the bases for intervenors' contentions, if only those intervenors can supply the requested information.
In contrast, Mr. Sholly here seeks to have Licensee identify not merely the relevant sections of the Emergency Plan; rather, Mr. Sholly seeks to compel Licensee to identify "each statement" within that section which is relevant.
Mr. Sholly has a copy of the Emergency Plan and is, with the information provided in Licensee's response to this interrogatory, in as good a position as Licensee to identify l
each such statement if he so desires.
Licensee should not be compelled to do Mr. Sholly's work for him.
See Boston Edison Company (Pilgrim Unit 2), LBP-75-30, 1 NRC 579, 583-84 (1975);
Power Authority of the State of New York (Greene County Nuclear Power Plant) (December 15, 1978) (slip op, at n.5); and Project Management Corporation - Tennessee Valley Authority (Clinch I
River Breeder Reactor Plant) (June 8, 1976).
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Finally, contrary to Mr. Sholly's representations at pages 3 and 4 of his Motion To Compel, Licensee has not objected to Interrogatory 08-019 on the grounds that it is linked to Mr.
Sholly's rejected Contention 8D.
The substantively full and complete response that Licenses has provided undercuts this characterization of Licensee's limited objection to the interrogatory.
Interrogatory 08-024 Specify any and all assumptions upon which the TMI Emergency Plan is based.
Discuss each such assumption and explain why it is appropriate and what it's [ sic) basis is in fact.
Discussion As Licensee explained at page 3 of its Further Objections,
"[t]here is no conceivable manner in which Licensee can
' identify' all assumptions that may have been made in developing the Emergency Plan" [ emphasis supplied).
The t
interrogatory is patently overbroad and ambiguous.
An inter-rogatory requesting information such as the identification of "all assumptions" is proper only in a situation where the request is further limited by a reasonably defined specific subject matter category of restricted scope.
- See, e.g.,
Commonwealth Edison Company (Zion Station, Units 1 and 2),
ALAB-196, 7 AEC 457, 458 n.1, 470 (1974) (sustaining a party's request for "all documents containing the numerical values and O !
equations for all assumptions used to specify the input parameters" for certain specified engineering codes).
This point is well illustrated by Mr. Sholly's attempt to analogize his Interrogatory 08-024 to ANGRY Interrogatory 16.a.
to the Commonwealth of Pennsylvania.
The ANGRY interrogatory asks the Commonwealth to identify all assumptions used in arriving at estimates of time for notification, for prepara-tion, and for actual transit time in evacuation -- such as road capacities and traffic volGme over given egress routes.
As Mr.
Sholly notes, the Commonwealth apparently "had no difficulty in identifying the assumptions upon which evacuation time es-timates were based."
But the Commonwealth's ability to respond briefly and specifically to ANGRY's interrogatory is attribu-table to ANGRY's limitation of the request for "all assump-tions" to a reasonably defined specific subject matter category of restricted scope -- those assumptions "used in arriving at such estimates [of time for notification, for preparation, and for actual transit time in evacuation]."
Mr. Sholly's request for the identification of "all assumptions" underlying the more than 150-page Emergency Plan is simply not analogous to ANGRY's properly limited interrogatory.
Moreover, there is a significant difference between an interrogatory which seeks assumptions underlying a specific calculation -- as for example the ANGRY interrogatory discussed above -- and an interrogatory which seeks assumptions that are
more properly viewed as conceptual or theoretical.
In the former instance, it is always possible to " document" the basis on which the calculation was derived.
Compare Figure 23 of the Emergency Plan which lists the assumptions used in computing the time vs. distance graphs for specified dose in Figures 21 and 22.
On the other hand, it may not be possible to "docu-ment" the conceptual or theoretical assumptions that underlie the Emergency Plan.
This is because such " assumptions" are little more than the very thought process of the drafters of l
Licensee's Emergency Plan.
In response to an interrogatory that requests information about all aspects of that thought process, it is unreasonable to believe that Licensee can at this time rigorously " document" or reconstruct such a thought process.
In this regard, Mr. Sholly harbors a significant i
misunderstanding of the manner in which Licensee drafted its Emergency Plan.
At page 6 of his Motion To Compel, Mr. Sholly i
stated that " Licensee developed the Plan and must of necessity i
have identified the assumptions upon which the plan is based."
It is thus implied that Licensee has a ready list of assump-tions implicit in the Emergency Plan, which it is withholding.
l Licensee simply has no such list.
l Accordingly, for all the reasons set forth above and in i
Licensee's Further Objections, Mr. Sholly's Motion To Compel i l
should be denied, and Licensee's objections to Interrogatories08-019 and 08-024 should be sustained.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By:
~'
Rober 3.
Zahler' Dated:
March 20, 1980
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