ML19323D725

Second Motion to Compel TMI Alert Answers to Licensee 800114 Interrogatories.Urges Issuance of Second Order Implying Fuller Response to Interrogatories 5-1,5-2,5-3,5-4 & 5-6, Except 5-6(a).Certificate of Svc Encl

ML19323D725
Person / Time
Site:	Three Mile Island
Issue date:	04/22/1980
From:	Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
References
NUDOCS 8005220224
Download: ML19323D725 (13)

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Lic 4/22/80 UNITED STATES OF AMERICA 2 Uf2"3 9 cG.W "~ * 'y

• NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) p.

METROPOLITAN EDISON COMPANY ) Docket No. 50-289 #

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LICENSEE'S SECOND MOTION TO COMPEL DISCOVER , Dccketleg & Service OF THREE MILE ISLAND ALERT  % E'*h

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I. INTRODUCTION On January 14, 1980, Licensee filed interrogatories to TMIA. Failing response by March 17, 1980 (the deadline set by the Board), Licensee filed a Motion to Compel on March 24, 1980. The Board granted Licensee's motion by Memorandum and Order dated April 11, 1980.

On April 14, 1980, Licensee's counsel in this proceeding received from TMIA a response to its interrogatories dated April 3, 1980.1./ With very limited exceptions, THIA's responses

fail to supply the information sought by Licensee. In many l

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TMIA has offered no explanation for its late filing. Li- I censee notes that while TMIA did not manage to answer Licensee's interrogatories during the prescribed discovery period, it did find time to prepare a total of seven sets of interrogatories to Licensee (5 sets), the NRC Staff and the Commonwealth of Pennsylvania, as well as to conduct extensive depositions of Licensee's employees. l l

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instances TMIA has responded that it does not have facts to support its allegations even as to past occurrences and that it has not yet developed information to support its allegations and predictions as to future events. Given this state of affairs there is no point in Licensee's asking the Board to compel a further response to most of the interrogatories. If TMIA does not have and has not developed information to support its contentions, a further order to compel disclosure of the information would serve no purpose.

Licensee notes, however, that the Board intends before the hearing, by requiring trial briefs or by other method, to re-quire a full and timely disclosure of each party's position on each issue affecting that party. Memorandum and Order on UCS March 24, 1980 Motion to Compel Licensee to Answer UCS Interroga-tory 179, p. 2 (April 2, 1980). The Board might well consider requiring parties advancing contentions to identify at that time the specific facts which they intend to show at the hearing, either through direct testimony or cross-examination, in support of their contentions.

There are, however, several interrogatories as to which TMIA apparently has information on which it relies in support of its allegations, but which TMIA refuses to answer. Licensce herein moves for a second time to compel TMIA's full and sub-stantive response to Interrogatories 5-1, 5-2, 5-3, 5-4 and 5-6. In the discussion which follows, Licensee first states the contention which is the subject of the listed interrogatories,

then sets forth its interrogatories (as modified at p. 2 of the Memorandum and Order dated April 11, 1980) , with TMIA's answers to those interrogatories.

II. DISCUSSION A 1 five of the interrogatories which are the subject of this motion were designed to elicit the specific factual bases for TMIA's Contention 5. That contention alleges that:

Met-Ed has negligently, and on occasion, willfully violated NRC regulations concerning the safe opera-tion of both Units 1 and 2, in that it has deferred necessary maintenance and repairs in order to mini-mize reactor downtime, to the detriment of the integrity of the nuclear facility itself. The Li-censee has, in the past, allowed work orders to go undone in order to avoid shutting Unit 1 down to perform necessary maintenance. The licensee would allow work orders to pile up until refueling, at which time the licensee would attempt to do all the work required. Just to complete essential mainten-ance in the short time available, employees were worked to a point where they were no longer effec-tive because of fatigue. These actions, and actions of this type, reflect negatively upon the ability of the licensee to safety operate a nuclear facility. Consequently, it is contended that Met-Ed is incapable of safely operating TMI-l and that its operating license should be suspended perman-ently.

Licensee's Interrogatories 5-1, 5-2, 5-3, 5-4 and 5-6 (as modi-fied by the Board at p. 2 of its Memorandum and Order dated April 11, 1980) are set forth below, with TMIA's answers to those interrogatories.

Interrogatory 5-1 5-1 Identify every occasion on which TMIA contends that Met-Ed " negligently . . . [or] willfully violated NRC regula-tions concerning the safe operation of . . . Unit #1 . . . in i

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that it . . . deferred necessary maintenance and repairs in order to minimize reactor downtime, to the detriment of the integrity of the nuclear facility itself."

a. Define "necessary maintenance and repairs" as that term is used in the allegation.

b. Set forth each and every fact and the scurce of each and every fact relating to or bearing upon the allegation.

c. Identify all documents containing any evidence or information relied upon by TMIA in support of the allegation.

d. Identify all persons having any information or knowledge relied upon by TMIA in support of the allegation.

TMIA's Response 5-1. Contention 5 was based primarily on the information provided in an article published in the Philadelphia Inquirer on Monday, April 16, 1979. This information was gathered oy twelve reporters of that newspaper, based on interviews with fifty past and present employees of the Licensee at Three Mile Island. That article is a matter of public record and available to the Licensee as easily as to TMIA. Based on the information contained in this article, TMIA has reviewed hundreds of work orders, and summaries of work orders, depositions and interviews conducted by the NRC and the President's Commission and has de-posed twenty-one individuals. All information gathered was either in the possession of Licensee or is now in its possession.

Numerous areas of concern have been identified in this process, many of which have been further identified in the depositions.

TMIA, if resources permit, will attempt to continue to identify these areas of concern. Since all the information is already in Licensee's possession, it would appear to be unnecessary, burdensome and improper.to require TMIA to attempt to describe in writing and in advance of hearing all of the many dozens of areas of concern where deferral of necessary or required mainten-ance has taken place. Since Licensee is fully aware at this point of TMIA's area of concern, since it has itself provided the documents upon which it is based, and since it knows (through the depositions) many specific work orders that have provoked concerns, Licensee can adequately prepare for trial.

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4 Interrogatory 5-2 5-2. Identify every occasion on which TMIA contends that Met-Ed " negligently . . . [or] willfully violated NRC regula-tions concerning the safe operation of . . . Unit #2 . . . in l l

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that it . . . deferred necessary maintenance and repairs in order to minimize reactor downtime, to the detriment of the integrity of the nuclear facility itself."

a. Define "necessary maintenance and repairs" as that term is used in the allegation.

b. Set forth each and every fact and the source of each and every fact relating to or bearing upon the allegation.

c. Identify all documents containing any evidence or information relied upon by TMIA in support of the allegation.

d. Identify all persons having any information or knowledge relied upon by TMIA in support of the allegation.

TMIA's Response 5-2. See answer to 5-1 above.

Interrogatory 5-3 5-3. Identify every occasion on which TMIA contends that Met-Ed " allowed work orders to go undone in order to avoid shutting Unit #1 down to perform necessary maintenance."

a. Define "necessary maintenance" as that term is used in the allegation.

b. Set forth each and every fact and the source of each and every fact upon which the allegation is based.

c. Identify all documents, including Generation Corrective Maintenance System Job Tickets (Work Requests) -

Three Mile Island [" Job Tickets"], containing any evidence or information relied upon by TMIA in support of the allegation.

d. Identify all persons having any information or knowledge relied upon by TMIA in support of the allegation.

TMIA's Response 5-3. See answer to 5-1 above.

Interrogatory 5-4 5-4. Identify every occasion on which TMIA contends that Met-Ed " allow [ed] work orders to pile up until refueling, at which time the licensee would attempt to do all the work required."

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a. Set forth each and every fact and the source of each and every fact upon which the allegation is based.

b. Identify all documents, including Job Tickets, containing any evidence or information relied upon by TMIA in support of the allegation.

c. Identify all persons having any information or knowledge relied upon by TMIA in support of the allegation.

TMIA's Response 5-4. See answer to 5-1 above.

Interrogatory 5-6 5-6. Identify every occasion on which TMIA contends that,

"[j]ust to complete essential maintenance in the short time available, employees were worked to a point where they were no longer effective because of fatigue."

a. Define " essential maintenance" as that term is used in the allegation.

i b. Set forth each and every fact and the source of each and every fact relating to or bearing upon the allegation.

c. Identify all documents, including Job Tickets, containing any evidence or information relied upon by TMIA in support of the allegation.

d. Identify all persons having any information or knowledge relied upon by TMIA in support of the allegation.

TMIA's Response 5-6. See answer to 5-1 above. " Essential maintenance" is that maintenance which was identified by the operator itself as most important or is understood in the industry to be of great importance to safe or efficient operation.

The Board has previously examined all of Licensee's inter-rogatories to TMIA and has compared them to TMIA's contentions.

On the basis of this review, the Board has already ruled that Licensee's interrogatories "are relevant to the proceeding and

are reasonably calculated to lead to the discovery of admiss-ible evidence." Memorandum and Order on Licensee's Motion to Compel Discovery of TMIA, p. 1 (April 11, 1980). Licensee is therefore entitled to full, substantive answers to its inter-rogatories.

TMIA's answer to Interrogatories 5-1, 5-2, 5-3, 5-4 and 5-6 (except to define " essential maintenance") is generally non-responsive to the questions posed.2,/ Though the citation to the Philadelphia Enquirer article is partially responsive to the interrogatories, TMIA only "primarily" based its Contention 5 on that article, and itself admits that it "has reviewed hundreds of work orders . . . depositions and interviews conducted by the NRC and the President's Commission and has deposed twenty-one individuals." Presumably, TMIA intends to rely upon some of this other material, in addition to the cited newspaper article, in support of its contention. However, the mere recitation of TMIA's research in preparation for trial does not answer Li-censee's specific questions as to the bases for TMIA's conten-tion, and does not comply with the Board's April 11 Memorandum and Order.

It is no answer to Licensee's proper interrogatories to assert'that the information sought "is a matter of public record

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Though TMIA's definition of " essential maintenance" is of little help to Licensee, Licensee does not here seek to compel a further response to Interrogatory 5-6(a). Instead, Licensee seeks further specification, through its other interrogatories, of the specific items of maintenance to which TMIA refers.

2nd available to the Licensee as easily is to TMIA" and "is already in Licensee's possession." Though it may be true that Licensee has in its possession much of the information on which TMIA bases its Contention 5, Licensee cannot verify that assertion until TMIA specifically identifies that information for Licensee.

Moreover, the mere attendance of Licensee's representatives at some of the many interviews and depositions conducted by the various TMI investigative groups and by TMIA is not sufficient to put Licensee on notice of the specific facts, documents and persons relied upon by TMIA in support of its allegations.

Only TMIA itself can provide the sp;cific bases for its conten-tion. This it has refused to do.

TMIA's responses to Interrogatories 5-1, 5-2, 5-3, 5-4 and 5-6 (to the extent that answer refers to the answer to 5-1) may be viewed not as answers to those interrogatories, but rather as legal objections. However, such objections are without merit.

See, e . g ._ , Stonybrook Tenants Association v. Alpert, 29 F.R.D.

165, 167 CD. Conn. 1961) (permissible to inquire into matters within interrogating party's knowledge); Erone Corporation v.

Skouras Theatres Corporation, 22 F.R.D. 494, 500 (S . D .N.Y. 1958)

(mere fact that matters are within knowledge of examining party or are matters of public record not valid objection to interroga-tories); and Wolf v. Dickinson, 16 F.R.D. 250, 252 (E.D. Pa. 1953)

(objection to interrogatory on ground that information is equally available to parties ordinarily not sustained).

Further, TMIA's responses to Licensee's interrogatories are dated April 3, 1980, more than five weeks after objections to

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Licensee's interrogatories were due. TMIA sought no extension 1

of time for the filing of objections. The applicable Commission discovery rules generally parallel 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). '

A failure to file objections to interrogatories within the time ,

prescribed by the rules waives those objections. Mengle v. Tucker, 21 F.R.D. 187 (E . D . Pa. 1957); Bohlin v. Brass Rail, 20 F.R.D. 224, '

225 (S.D. N.Y. 1957). TMIA has thus waived any objections it might have to Interrogatories 5-1, 5-2, 5-3, 5-4 and 5-6, including the legal arguments it included in its response to those interroga-tories dated April 3.

Finally, TMIA complains that "it would appear to be un-necessary, burdensome and improper to require TMIA to attempt to describe in writing and in advance of hearing all of the many dozens of areas of concern where deferral of necessary or required maintenance has taken place." However, Licensee is at a loss to understand how it is to prepare to litigate "all of  ;

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. . . [TMIA's] many dozens of areas of concern" if TMIA will J not specify those areas. At page two of its April 11 Memorandum and Order on Licensee's Motion to Compel Discovery of TMIA, the Board noted:

If licensee is to prepare carefully to liti-gate the allegations contained in TMIA's con-tentions, responses to the interrogatories are very desirable, perhaps essential.

Moreover, if TMIA truly finds responding to interrogatories on its contention to be intolerable, TMIA may avail itself of the remedy which the Board pointed out to UCS in its April 1, 1980 Memorandum and Order Compelling UCS to Answer Licensee's Inter-rogatory No. 8-1; TMIA can narrow its Contention 5. Licensee's interrogatories are exactly as broad as the contention which gives rise to them. If the interrogatories are too burdensome for discovery, TMIA's contention is too broad for litigation.

III. CONCLUSION TMIA's answers to Interrogatories 5-1, 5-2, 5-3, 5-4 and 5-6 (except its definition of " essential maintenance") are non-responsive, incomplete, and an untimely objection which lacks merit. TMIA's answers therefore do not comply with the Board's April 11 Memorandum and Order. Accordingly, pursuant to 10 C.F.R. S 2.740 (f) , Licensee moves the Licensing Board for a second order compelling TMIA to respond fully and substantively to Interrogatories 5-1, 5-2, 5-3, 5-4 and 5-6 (except 5-6 (a) ) .

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: /M,/ L jM -

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Q G(orcfe F7 Trowbridgfe Dated: April 22, 1980 1

Lic 4/22/80 UNITED STATES OF AM$RICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

MFTROPOLITAN EDISON COMPANY ) Docket No. 50-289

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(Three Mile Island Nuclear )

Station, Unit No. 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Second Motion to Compel Discovery of Three Mile Island Alert", were served upon those persons on the attached Service List by de-posit in the United States mail, postage prepaid, this 22nd day of April, 1980.

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'Ge[rgdF<Vfrowbridg Dated: April 22, 1980

UNITED STATES OF AMERICA NUCLEAR REGULATOhY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

SERVICE LIST Ivan W. Smith, Esquire John A. Ievin, Esquire Chaiman Assistant Counsel Atomic Safety and Licensing Pennsylvania Public Utility Ccan'n Board Panel Post Office Box 3265 U.S. Nuclear Regulatory Ccmnission Harrisburg, Pennsylvania 17120 Washington, D.C. 20555 Karin W. Carter, Esquire Dr. Walter H. Jordan Assistant Attorney General Atcmic Safety and Licensing 505 Executive House Board Panel Post Office Box 2357 881 West Outer Drive Harrisburg, Pennsylvania 17120 Oak Ridge, Tennessee 37830 John E. Minnich Dr. Linda W. Little Chaiman, Dauphin County Board Atcmic Safety and Licensing of Ccmnissioners Board Panel Dauphin County Courthouse 5000 Hemitage Drive Front and Market Streets Raleigh, North Carolina 27612 Harrisburg, Pennsylvania 17101 l James R. Tourtellotte, Esquire Walter W. Cohen, Esquire Office of the Executive Legal Director Consumer Advocate U. S. Nuclear Regulatory Ccmnission Office of Consumer IdNocate Washington, D.C. 20555 14th Floor, Strawbtrry Square Harrisburg, Pennsylvania 17127 Docketing and Service Section Office of the Secretary U. S. Nuclear Pegulatory Ccmnission Washington, D.C. 20555 i L

Jordan D. Curuungham, Psquire Karin P. Sheldon, Esquim Attorney for Newberry Township Attorney for People Against Nuclear T.M.I. Steering Cm mittee Energy 2320 North Second Street Sheldon, Harmon & Weiss Harrisburg, Pennsylvania 17110 1725 Eye Street, N.W., Suite 506 Washington, D.C. 20006 Theodore A. Adler, Esqune Widoff Reager Selkowitz & Adler Pobert Q. Pollard Post Office Box 1547 609 Montpelier Street Harrisburg, Pennsylvania 17105 Baltimore, Mary 1.md 21218 Ellyn R. Weiss, Esquire Chauncey Kepford Attorney for the Union of Concerned Judith H. Johnsrud Scientists Environmental Coalition on Nuclear Sheldon, Harmon & Weiss Power 1725 Eye Street, N.W., Suite 506 433 Orlando Avenue Washington, D.C. 20006 State College, Pennsylvania 16801 Steven C. Sholly Marvin I. Iewis 304 South Market Street 6504 Bradford Terrace Mechanicsburg, Pennsylvania 17055 Philadelphia, Pennsylvania 19149 I

Gail Bradford Marjorie M. Aamodt Holly S. Keck R. D. 5 Iegislation Chairman Coatesville, Pennsylvania 19320 Anti-Nuclear Group Representing York 245 West Philadelphia Street York, Pennsylvania 17404

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