ML19323G685
| ML19323G685 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 05/08/1980 |
| From: | Cowan F, Newman J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006060478 | |
| Download: ML19323G685 (11) | |
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NUCLEAR REGULATORY COMMISSION ggp BEFORE THE ATOMIC SAFETY AND LICENSING BOAR Office cithe SecteWY il pocketingIsWC8 Brantil Q<
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HOUSTON LIGHTING & POWER S
DOCKET NOS. STN 50-498 OL COMPANY, ET AL.
S STN 50-499 OL S
(South Texas Project S
Units 1 and 2)
S MOTION TO COMPEL CITIZENS FOR EQUITABLE UTILITIES TO PROVIDE FURTHER ANSWERS TO APPLICANTS' FIRST SET OF INTERROGATORIES Introduction On November 5, 1979, Houston Lighting & Power Company, Project Manager for 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")
served its first set of interrogatories to intervenor Citizens for Equitable Utilities ("CEU").
Pursuant to a Memorandum and Order of this board dated August 3, 1979, CEU was obli-gated to provide its answers or objections to these inter-rogatories by December 21, 1979, but did not do so until January 14, 1980. 1/
Believing that many of the answers 1/
CEU did not file a motion requesting an extension of time within which to file its responses, or otherwise inform the Board that it could not comply with~the original filing date.
8006060YN 6
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I provided by CEU were unresponsive and/or incomplete, Appli-cants thereupon filed a motion to compel CEU to respond further to their interrogatories.
(Motion dated January 29, 1980).
On March 7, 1980, the Board issued a " Memorandum and Order Ruling Upon Motions to Compel CEU to Respond to Interrogatories" in which it granted several of Applicants' requests for more complete and responsive answers.
The Board's Memorandum and Order directed CEU to provide these further answers "within 30 days of the service of this Order."
CEU filed its latest answers, which are the subject of this motion to compel, on April 23, 1980, some two weeks after the deadline imposed by the Board.
Again, Applicants believe that CEU has not provided fu:'.1 and responsive answers to all of their interrogatories.
Therefore, pursuant to 10 OFR S2.740 (f), Applicants request the Board to grant this second motion and to issue an order compelling intervenor CEU to file new and complete responses to those of their first interrogatories specified below.
Identification of Individuals Furnishing Information in Support of Contentions 1 and 2 In its initial response to Applicants' first set of interrogatories, CEU failed to provide any information relevant to contentions 1 and 2 regarding alleged QA/QC deficiencies at the South Texas Project site.
Instead, CEU noted that it had encountered "an extremely emotional, almost irrational.
fear" exhibited by past and present workers at the site who had " insisted that their names not be divulged" until a hearing date is set for this proceeding, and "their names
[are] intermingled with a number of others to be called as witnesses."
CEU's response to interrogatories relating to contention 4 reiterated that CEU had promised not to divulge tile names of persons who had provided it with in-formation.
In its March 7 Memorandum and Order, the Board ruled that CEU could not properly base its failure to provide relevant information on the need to protect persons who were allegedly afraid of " reprisal" and directed that if CEU wished to protect such individuals it should seek a protec-tive order from the Board.
t CEU persists in its refusal to identify the individuals who furnished the information on which its contentions 1 and 2 apparently depend and fails to seek the protective order which the Board suggested might be appropriate in the circumstances. 2/
Applicants again move the Board for an order compelling CEU to answer the interrogatories relevant to contentions 1 and 2 which call for.an identifica-tion of the individuals who furnished information to CEU which forms any part of the bases for such contentions.
2/
CEU's response appears'to suggest that support for contentions 1 and 2 depends on information from persons whose identity is unknown to the intervenors.
(CEU Response to Interrogatories p. 4 (April 23, 1980)).
Whether this response is a substitute for its earlier answer which referred to individuals whose identity was known to CEU is unclear.
If this response is such a substitution CEU should so. state.
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Contention 2, Interrogatories 2-4 In these interrogatories, Applicants sought to obtain the information in CEU's possession which forms the basis for this intervenor's contention that South Texas Project "construc-l tion records" have been falsified.
As this Board pointed out in its March 7 Memorandun and Order, having proffered a contention alleging specific improper practices, an intervenor
" presumably" would have information upon which it relied in submitting that content!.on.
The Board ordered CEU to provide this information.
CEU has now responded:
CEU has requested certain documents relating to the reports set out in contention 2.
We were refused access to any of these documents during discovery.
Applicants' attorney... refused said docu-ments as "not relevant."
The documents in question were refused because they were not relevant to any contention in the proceeding.
If i
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CEU believed otherwise, its remedy is a motion pursuant to l
10 CFR S2.740 (f).
In any event, Applicants interrogatories sought only the most fundamental information forming the basis for CEU's contention concerning alleged falsification of records at the South Texas Project, including those persons alleged to have falsified records, the records actually 4
falsified, and any-prospective CEU witnesses.
From the current state of the record, it appears that CEU proffered an unsupported contention hoping to later obtain evidence to support it by gaining general access to Applicants' files.
To date, Applicants have not been-provided any -
information demonstrating that CEU had a basis for submitting contention 2.
If CEU has no evidence to support its asser-tions of falsification of records in contention 2 it should so state.
Applicants move the Board for an order compelling a response to Interrogatories 2-4.
Contention 4, Interrogatory 1 Applicants' interrogatory requested that CEU provide the names of all persons whom it intends to call as a witness on matters relating to contention 4.
In its first set of answers, CEU responded that this contention is " integrated" with contentions 1 and 2 regarding alleged construction de-ficiencies at South Texas Project and that individuals who have provided information to CEU have requested that their names be withheld due to fear of retaliation.
This fear, according to CEU, made it " imperative" that their names not be provided.
In its March 7 Memorandum and order, the Board, as in the case of CEU's refusal to answer interroga-tories on contentions 1 and 2, ruled that CEU cannot on this basis withhold the names of individuals upon whom it relies, and stated that CEU should, if it wished, obtain an appropriate protective order.
CEU's latest answers make no mention of those individuals earlier claimed to have provided information to CEU relevant to this contention, nor has CEU requested a protective order.
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I on their behalf.
The Board has already ruled that Applicants have a right to obtain this information.
It is therefore requested, again, that the Board compel CEU to provide their names and the information which they have provided to CEU regarding contention 4.
Contention 5, Interrogatories 3-7 In these interrogatories, Applicants sought some particu-larization of tha basis for CEU's assertion that the Staff's treatment in the FES of bioaccumulation of radionuclides in aquatic organisms is inadequate or in error.
Applicants also sought the identity of any person whom CEU intends to call as a witness on this contention.
CEU earlier stated that "research and study has been initiated but not completed" and that the fruits of this ongoing work would be provided when concluded.
As noted by the Board, CEU's response
" failed to provide any-substantive explanation for the claims it is making."
The Board explained that CEU was not required to have completed its analysis and preparation of this con-tention but that it was at least expected to state the reasons why it concluded that the Staff's FES was in error.
CEU's latest response states that the real reason it has been unable to provide the requested information is that its offices have, twice (apparently in October and January), been entered and documents, calculations, Ond other unspecified relevant material stolen or destroyed.,
o Based upon CEU's own statements, it has been at least four months since this data was lost and CEU has made no ef fort to timely nc tify the Board of its difficulty.
The Board has already had occasion to point out to this party that, if it finds itself unable to respond in accordance with the Board's orders it should so notify the Board and seek appropriate relief.
(March 7 Memorandum and Order, fn. 1)
CEU can no longer rest on the excuse that it is a pro se intervenor deserving of special treatment from the Board.
At least, intervenor should have provided some specification of the material that was lost so that the parties and the Board could determine whether there is some basis for this contention.
CEU has now been requested twice to provide any informa-tion in its possession, or any calculations it has performed, which support its contention that the Staff has failed to properly consider the effects of bioaccumulation fo radio-nuclides in aquatic organisms.
Applicants again request that CEU be directed to provide a response to their interrogatories, setting forth any information in its possession which supports the allegation in contention 5.
Contention 6, Interrogatory 1 Applicants sought, in this interrogatory, all of the reasons, and the facts supporting them, upon which CEU relies i,
to support its assertion that the rate of deposition of radio-nuclides is affected by continuously high levels of humidity.
CEU's answer is evasive and suggests that CEU is now attempting to substantially alter its contention.
CEU's response wanders through various areas of concern.
Initially intervenor states that it is concerned that due to " unusual" climate conditions at the site, the " generalized manner of calculating radionuclide deposition rates are [ sic] in error."
CEU then quotes from the
" Geologic Atlas of the Texas Coastal Zone" which briefly dis-cusses the interrelationship of wind, rains, evaporation and temperature on meterorological conditions in this area.
The major portion of CEU's answer is designed to show that pre-valling winds at the site for most of the year are from the southeast.
Intervenor contends, in conclusion, "that the radionuclide deposition rate will vary in distance depending on which way the wind is blowing."
The only subject not discussed in CEU's answer is the effect of high humidity on radionuclide deposition rates which is the subject of the contention.
Applicants therefore request that CEU be directed to answer the interrogatory directly.
The information provided is irrelevant and unresponsive. 3/
3/
If CEU wishes to change its contention to one alleging that the Staff and Applicants have not properly considered the effects of prevailing winds, or some other meteorological phenom-enon in the vicinity of South Texas Project, it should submit a late-filed contention to that effect, addressing the five factors in 10 CFR S2.714 (a).
1
Conclusion Applicants hereby move the Board to grant this motion i
to compel further responses to interrogatories and to direct CEU to provide full and responsive antwers to the interroga-tories discussed above.
Respectfully submitted,
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Finis E. Cowan Melbert D.
Schwarz 3000 One Shell Plaza Houston, Texas 77002 Ja'ck 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 of 3000 One Shell Plaza the South Texas Project, acting Houston, Texas 77002 herein on behalf of itself and the other Applicants, THE CITY Lowenstein, Newman, Reis, OF SAN ANTONIO, TEXAS, acting by Alexrad & Toll and through the City Public Service 1025 Connecticut Avenue, N.W.
Board the City of San Antonio, Washington, D.C.
20036 CENTRAL POWER AND LIGHT COMPANY and THE CITY OF AUSTIN, TEXAS
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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. STN 50-498 OL
S STN 50-499 OL S
(South Texas Project S
Units 1 and 2)
S CERTIFICATE OF SERVICE I hereby certify that copies of Applicants' Motion to Compel Citizens for Equitable Utilities to Provide Further Answers to 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 8th day of May, 1980:
Charles Bechhoefer, Esq., Chairman Atomi~c 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.
J Hearing Attorney Office of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Richard W. Lowerre, Esq.
Assistant Attorney General for the State of Texas P. O. Box 12548, Capitol Station Austin, Texas 78711
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4 Honorable Burt O'Connell County Judste, Matagorda County Matagorda L'ounty 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 4
Board Panel i
U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Chase R. Stephens Docketing and Service Section Office of the Secretary of the Commission M
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/" Finis E. Cowan Dated:
May 8, 1980 I
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