ML19321B060
| ML19321B060 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 07/22/1980 |
| From: | Smith I Atomic Safety and Licensing Board Panel |
| To: | THREE MILE ISLAND ALERT |
| References | |
| ISSUANCES-SP, NUDOCS 8007250426 | |
| Download: ML19321B060 (5) | |
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- UNITED STATES OF AMERICA S.
On.ce chhe Secretary NUCLEAR REGULATORY COMMISSION
's( Ccchetini & Setyice 3
Bra c.,
S AT u g ETY AND LICENSING BOARD Ivan.W. Smith, Chairman Dr. Walter H. Jordan
- E@cq Dr. Linda W. Little 2 2 ]S39 In the Matter of
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METROPOLITAN EDISON COMPANY
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Docket No. 50-289 SP (Three Mile Island Nuclear (Restart)
Station, Unit No. 1)
)
MEMORANDUM AND ORDER ON TMIA's MOTION TO COMPEL DISCOVERY OF LICENSEE (July 22, 1980)
On June 18, 1980, Three Mile Island Alert (TMIA) filed four
" follow-up" interrogatories.
Licensee obj ects that they are un-timely, and that, in addition, interrogatory 2 does not appear to be relevant "... (w]ithout a greater specification of relevance from TMIA...."
Licensee 's Obj ections,' June 27, 1980.
This dis-pute is further amplified by TMIA's Motion to Compel (July 7,1980),
and by licensee's response thereto (July 14, 1980).
TMIA's interrogatories 1 and 3 are in the category of " follow-on" discovery requests based on discovery responses served by the licensee on March 17, 1980.
Under the clear terms of our Febru-ary 29, 1980 Fourth Special Prehearing Conference Order (p. 23),
the permitted one round of such follow-on requests should have been Q S02 6e' 800725[)M2f
. made within ten. days of the date of service (ten days plus five days for mailing) of the response upon which it is based.
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TMIA argues that the responses involved here are a 904-page computer summary of corrective maintenance and a 1137-page computer su= mary of hours worked by employees.
We agree that it would have been a difficult task for TMIA to review these and formulate
" follow-on" discovery requests within ten days.
However, TMIA i
should have made a timely request for relief upon receipt of such extensive information back in March.
Furthermore, we cannot attrib-ute diligence to TMIA's follow-on discovery when it is over two months late.
j TMIA is incorrect in its understanding of our May 5,1980 order, which permitted discovery no later than ten days after the availa-bility of new information.
The word " availability" was used because the-situation being addressed was not follow-on discovery to dis-1/
covery responses, and therefore the method by which the information would become available would not necessarily be by service.
In any i
event, even if we assume arguendo'that the May 5 order applies to
" follow-on" discovery and therefore information is in fact obtained by service upon a party, it is such service which is the ascertain-
.able time of availability.
We agree with licensee that TMIA's I
1/
Only one such round of follow-on discovery requests to dis-covery responses was permitted in our February 29, 1980 order and was governed by the schedule in that order as discussed above.
. proposed test -- that the date of availability is when the dis-1 covering party gains knowledge of the content -- cannot be applied to a situation like this one'where the "new information" is a response to a discovery request.
Licensee is correct that as a general proposition:, "... TMIA's position would allow a party to indefinitely extend discovery by reviewing available
. material at its leisure."
We leave open the question f possible i
broader determinations of " availability" in other situations --
e.g., where a document is publicly available but its existence or content would not have been apparent even to a party exercising due diligence.
Notwithstanding the above, in this instance the board is interested in the responses to interrogatories 1 and 3, because they probe an important area within our concern as wel'l as within--
2/
TMIA Contention 5.-
Licensee is directed to answer interroga-tories 1 and 3 within fifteen days of the date of service of this order.
Interrogatory 2 seeks:
(a) accident reports, (b) documenta-tion of instances where an employee has " called off" sick, and
.(c) infirmary records for the period October 1977 to March 1979.
We find that the further explication provided by TMIA's motion to compel shows the general relevance of the requested information 2/
Contention 5 deals with Metropolitan Edison's management
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competence-and technical qualifications-based on allegations
'of deferral of maintenance and having employees work to the point where they were no longer effective due to fatigue.
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-4 under the discovery standard of information that appears rea-sonably calculated to lead to the discovery of admissible evidence.
10 CFR S 2.740(b) (1).
The information is relevant to TMIA's allegation of. employees being worked to the point of fatigue.
However, we do not see how this interrogatory is tied to previous discovery responses as even a very late " follow-on" discovery request.
TMIA attempts to tie this interrogatory to the computer surmary of hours worked.
But interrogatory 2 does not depend upon that su= mary; in actuality, as disclosed on page 3 of TMIA's motion to compel, TMIA got the idea to ask this question late when it was suggested by a consultant.
The interrogatory could have and should have been asked as part of initial discovery, and'certainly not two months beyond the deadline for even follow-on discovery.
Licensee ne2d not answer interrogatory 2.
Interrogatory 4 is a request for an update of the computer summary of work requests completed since January 1980 to date, which summary was previously provided in response to TMIA inter-rogatory 6 (5th set, or "5-6").
Although licensee was not under an obligation on its own to update this response (see 10 CFR S 2.740(e)), we find that a request to provide an update since the last response is reasonable and should be answered, if in fact licensee-has such an update of the computer summary.
If not, TMIA
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, and the licensee should arrive at another method of providing i
the requested update of information on completed work requests.
j This interrogatory should also be answered within fifteen days 3/
of the date of service of this order.-
THE ATOMIC SAFETY AND LICENSING BOARD 1
l fm w b,/l
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v Ivan W. Smith, Chairman e
Bethesda, Maryland July 22, 1980
-3/
Subsequent to the preparation of this order the board re-ceived licensee's July 16, 1980 motion for sanctions against TMIA requesting the dismissal of TMIA Contention 5.
We will defer ruling upon the motion until TMIA serves its response.
Perhaps the matter will be discussed at the August 12 prehearing conference.
Our order compelling, dis-covery responses on Contention 5 discovery requests should not be taken as an indication of our views on licensee's motion.
We are directing licensee to respond to discovery in the interest of saving time in the event we decline to dismiss the contention and because of the board's interest in the subj ect matter.
Licensee may request a delay in com-plying with today's order until the issue set forth in its motion for sanctions is resolved, but of course, any delay will ultimately be at licensee's expense.
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