ML19338F142
| ML19338F142 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/02/1980 |
| From: | Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8010070562 | |
| Download: ML19338F142 (10) | |
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10/2/80
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UtllTED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEF0P.E THE AT0!11C SAFETY AND LICENSING BOARD In the Matter of
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TEXAS UTILITIES GENERATING C0!!PANY,
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'50 440:
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NRC STAFF'S ANSWER TO APPLICANTS' MOTIO!i TO C0:!PEL INTRODUCTION On September 12, 1980, Texas Utilities Generating Company, et al. (Applicants) fileo " Applicants' Motion to Compel and Answer to ACORN's Motion For an Extension of Time and Motion For Protection."1/ In this motion, Applicants seek from the Atomic Safety and Licensing Board (the Board) an order compel-ling ICORN (Texas Association of Community Organizations for Reform Now) to respond to the Applicants' interrogatories and to produce for inspection the
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documents requested in Applicants' First Set of Interrogatories and Recuests to Produce, filed August 13, 1980.
Applicants also oppose ACORN's motions for " protection" and for an extension of time set forth in " ACORN's Objections and Motion for Protection and for Extension of Time."
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Applicants' motion responds to " ACORN's Objections to Applicants' First Set offlnterrogatories and Motion For Protection and For Extension of Time To Answer Applicants' Interrogatories", which was filed on August 28, 1980.
(Hereafter " ACORN's Objections and flotion For Protection and For
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Extension of Time")
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As stated below, the NRC Staff believes that Applicants' motion to compel is premature at this time but is appropriate and should be granted in the event ACORf1 refuses to respond to Applicants' interrogatories af ter a reasonable extension of time.
DISCUSSI0fi I.
APPLICAflTS' MOTI0fi TO COMPEL IS PREMATURE AT THIS TIME BECAUSE ACORfi HAS REQUESTED A!! EXTEriSI0fi 0F TIME Ifi v'ICH TO RESP 0fiD TO APPLICANTS' INTERROGATORIES In ACORfi's Objections and Motion For Protection and For Extension of Time, ACORf1 objected to Applicants' interrogatories in full and specifically objected to 36 of Applicants' interrogatories.
ACORf1 also stated that it is entitled to an order for protection from " annoyance, expense and oppression due to the concerted efforts of Applicants to burden and harass ACORf1 at this early stage of-the development of the issues before the Board." Without waiving these objections and its request for a protective order, ACORN also requested an unspecified extension of time to answer the interrogatories propounded to it by Applicants. ACORfi's request for an extension of time is apparently based upon the absence of ACORN's counsel from his office from August 27, 1980 to September 20, ?n00.
In view of this request for an extension of time, Applicants' motion to compel is premature at this time.
If however, ACORfi refuses to respond to i
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Applicants' interrogatories af ter a reasonable extension of time,U Appli-cants' motica is appropriate and should be granted, for the reasons stated below.
II.
Ili THE EVEriT ACORN REFUSES TO RESP 0fu TO APPLICAf1TS' IriTERR0GATORIES AFTER A REAS0f1ABLE EXTEilSI0ti 0F TIfiE, APPLICAtlTS' fiOTI0fi TO C0'1PEL IS APPROPRIATE Afl0 SHOULD BE GRANTED Applicants seek a motion to compel ACORfi to respond to all of its interroga-tories including the thirty-six of Aprilicants' interrogatories to which ACORii has specifically objected. The first group of interrogatories that are the subject of ACORii's objections involve, in essence, the fol'owing ques tions :
a.
Please state in your own words the meaning of Contention (Interrogatories 1, 31, 71, 101, 142, 189, 214).
't b.
What is your basis for Contention
? Please list all documents not elsewhere identified in these interrogatories on which you rely for your position on Contention Please provide these documents for inspection and copying.
(Interrogatories 2, 32, 72, 102, 143, 190, 215).
2f Since this proceeding is at an early stage, a reasonable extension of time will not result in any delay in holding a timely evidentiary hearing.
Accordingly, the Staff does not object to a reasonable extension of time for ACORii to respond to Applicants' interrogatories.
The Staff does not, 4
however, support an extension of time fc,r an unspecified period, as is requested by ACORil. The Staff believes that it would be reasonable to grant ACORil an extent ~on of time until October 6,1980 (approximately fourteen days af ter ACORfl's counsel returns to his office on September 20,1980).
c.
What do you mean by "
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or Please state in your own words what "
" means in Contention (Interroga-tories 11, 26, 27, 44, 46, 57, 246).
d.
What is your basis (legal and/or other) for your response to Interroga tory
? (Interroga tory 247).
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i ACORN objects to these interrogatories on general grounds, stating that "the inquiry is not relevant to the pending litigation and is not reasonably calculated to lead to the discovery of evidence admissible at the time of the hearing on contentions approved by the Board." Also according to ACORN, these interrogatories are a fonn of harassment and annoyance.
ACORN also objects to a second group of Applicants' interrogatories, posed with respect to seven contentions, which are, in essence, as follows:
a.
What are the dates of all meetings or contacts with the other intervening parties with respect to Contention
? Please specify the purpose of such meetings or contacts, and the results of such meetings or contacts.
(Interrogatories 4, 34, 74,104,146,193 and 218).
b.
What are the dates of the meetings or contacts you have had v
with persons other than the intervening parties with respect to Contention
? Please identify the purpose of those
meetings or contacts, the other persons involved, and the results of such meetings or contacts.
(Interrogatories 5, 35, 75,105,14 7,194 and 219).
ACOR!l also objects to these interrogatories on the general grounds that the
" inquiry is designed to be prejudicial and is not relevant to tlie subject matter involved in the contentions before the Board and is not reasonably cal.culated to relate to the discovery of evidence admissible at hearing on c onten ti ons. " ACORf1 also argues that these interrogatories are designed to annoy and oppress ACORil.
The Staff agrees with Applicants that ACORfl has failed to sustain its burden of persuasion with respect to its objections to these interrogatories.
ACORii's objections are merely general in nature and are insufficient to warrant its refusal to respond. As noted by the Appeal Board in Pennsylvania
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Power & Light Company and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, flP,C (September 23, 1980) (slip. op, at 7), quoting from Moore's Federal Practice:
Challenges to interrogatories must be specific enough so that the (tribunal) can understand in what way the interrogatories are claimed to be objectionable. General objections, such as the objection that the interrogatories will require the party to conduct research and compile data, or that they are unreasonably burdensone, oppressive, or vexatious, or that they seek informa-tion that is as easily available to the interrogating as to the interrogated party, or that they would cause annoyance, expense, and oppression to the objecting party without serving any purpose relevant to the action, or that they are duplicative of material already discovered through depositions, or that they are irrelevant and immaterial, or that-they call for opinions and conclusions, are insufficient.
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t ACORfl's objections to the 36 interrogatories described above are, in fact, of the same general nature addressed by the Appeal Board in Susquehanna. As j
the Appeal Board emphasized there, such objections are insuffi:ient.
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Applicants' interrogatories to which AC0,Rll objects are not improper.
It has long been recognized that parties are entitled to discover all matters not privileged that tend to support or negate the allegations in the pleadings or which are, reasonably calculated to reveal such matters. H. a t 24.
Also see Pennsylvania Power & Light Company, et al. (Susquehanna Steam Electric Station, Units 1 and 2), ASLB Menorandum & Orders, January 4,1980, slip.
op, at p.3 and August 24, 1979, slip. op at pp.5-6.
As the Licensing Board in Susquehanna noted:
The Applicants in particular carry an unrelieved burden of proof in Comission proceedings.
Unless they can effectively inquire into the position of the intervenors, discharging that burden may be impossible. To permit a party to make skeletal contentions, keep the bases for them secret, then require its adversaries to meet any conceivable thrust at hearing /would be patently unfair and inconsistent with a sound record.-
ACORft's mere general objections to the above sets of interrogatories are insufficient to relieve it of its obligation to respond or to carry its burden of persuasion to show that 1. inter rogatories should not be answered.
Boston Edison Company (Pilgrim Nuclear Generating Station, Unit 2), LBP-75-30, 1 flRC 579, 582 (1975). ACORf1 has failed to meet its burden of persuasion to 3/
Hemorandum and Order of August 24,1979 (unpublished) at 6, quoting from Northern States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298,1300-01 (1977) (citation omitted).
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. o show specifically how the infonnation called for in the two sets of inter-rogatories mentioned above is not d'iscoverable. Jd. Accordingly, Applicants' motion to compel ACORii to respond to the above interrogatories is appropriate and should be granted, in the event ACORf1 refuses to respond to Applicants' interrogatories af ter a reasonable extension of time.
l In addition, the Staff agrees with the Applicants that ACORfi is not entitled to the protectisa order it seeks with regard to other unspecified interroga-tories and requests to produce. ACORf1 has failed to demonstrate good cause for a protective order with respect to discovery.
10 CFR l 2.740(a).
In support of such order ACORN merely requests that the Board protect ACORf1 "from lines of inquiry that have no purpose other than to invade the privacy of ACORil's membership and to chill participation in this proceeding or that seek to attack contentions previously admitted by the Board by requiring j
further justification for those contentions." While a protective order j
against that type of discovery might indeed be appropriate, ACORN has failed i
to specify any interrogatories which are the subject of its request for a protective order, to specify the type of protection sought, or to show that the interrogatories are of an objectionable nature such that good cause exists for such an order. None of Applicants' interrogatories appear on their face to be designed to invade the privacy of ACORN's membership or to chill participation in this proceeding. Absent a demonstration to the contrary, the Staff agrees with Applicants that ACORN's request for a pro-tective order should be denied.
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CT!CLUSION I
For the foregoing reasons, the NRC Staff believes that Applicants' Motion to i
Compel should be granted if ACORN refuses to respond to Applicants' inter-rogatories after a reasonable extension of time, i.e., by October 6,1980.
Respectfully submitted
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Marjorie Ulman Rothschild Counsel for NRC Staff Dated at Bethesda, Maryland this 2nd day of October,1980 k
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8 UNITED STATES OF AM' ICA NUCLEAR REGULATORY C0 11SSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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TEXAS UTILITIES GENERATING COMPANY, ET AL.
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Docket Nos. E0-445
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50-446 (Comanche Peak Steam Electric Station,
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linits 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO APPLICANTS' MOTION TO COMPEL" in the above-captioned proceeding have been served on the follow-ing by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 2nd day of October, 1980:
Valentine B. Deale, Esq., Chai rman David J. Preister, Esq.
Atomic Safety and Licensing Board Assistant Attorney General 1001 Connecticut Avenue, N.W.
Environmental Protection Divi.: ion Washington, DC 20036 P.O. Box 12548, Capitol Station Aus tin, TX 78711 Dr. Forrest J. Remick, Member Atomic Safety and Licensing Board Mr. Richard Fouke 305 E. Hamilton Avenue 1668-B Carter Drive State College, PA 16801 Arlington, TX 76010 Dr. Richard Cole, Member
- Arch C. McColl III, Esq.
Atomic Safety and Licensing Board 701 Commerce Street U.S. Nuclear Regulatory Commission Suite 302 Washington, DC 20555 Dallas, TX 75202 Nicholas S. Reynolds, Esq.
Jeffery L. Hart, Esq.
Debevoise & Liberman 4021 Prescott Avenue 1200 17th Street, N.W.
Dallas, TX 75219 Washington, DC 20036 Atomic Safety and Licensing Mrs. Juanita Ellis Board Pane!*
President, CASE U.S. Nuclear Regulatory Commission 1426 South Polk Street Washington, DC 20555 Dallas, TX 75224 Atomic Safety and Licensing Appeal Mr. Geoffgey M. Gay Panel (5)*
West Texas Legal Services
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U.S. Nuclear Regulatory Commission '
100 Main Street (Lawyers Bldg.)
Washington, DC 20555 Fort Worth TX 76102
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i Docketing and Service Section (7)*
Office of the Secretary U.S. -Nuclear Regulatory Commission Washington DC 20555-I V i t,is v.C U W % S N N Y Marjor1e Ulman Rothschild Counsel for NRC Staff I
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