ML19340B371
| ML19340B371 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/20/1980 |
| From: | Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8010220314 | |
| Download: ML19340B371 (24) | |
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10/20/80 Uf1ITED STATES OF A!! ERICA -
f;UCLEAR REGULATORY C0l1:11SSIO!!
BEFORE THE ATO?lIC SAFETY A!!D LICErlSIliG BOARD In the Itatter of
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TEXAS UTILITIES GEf1ERATIflG C0f1PAflY, ET AL.
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Docket i;os. 50-445
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50-446 (Conanche Peak Steam Electric Station,
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Units 1 and 2)
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fiRC STAFF'S AflSWER TO APPLICAt:TS' f-10TI0flS TO C0t1PEL NiD TO REQUIRE SUPPLEf1EllTATIO!!
IfTRODUCTI0f; On September 30, 1980, Texas Utilities Generating Company, et al. ( Appli-cants) filed " Applicants' (1) flotions to Compel and To Require wople-mentation of CFUP's Answers to Applicants' Interrogatories and Requests to Produce and (2) Clarification of Certain Interrogatories" (hereafter "Appli-cants'ltotions").
In the motion to compel, Applicants seek from the Atonic Safety and Licensing Board (the Board) an order compelling CFUR (Citizens for Fair Utility Regulation) to fully respond to the Applicants' interrog-atories and to produce for inspection the documents requested in Applicants' First Set of Interrogatories and Requests to Produce, filed August 1,1980.
Applicants also move that the Board order CFUR to supplement its responses to certain interrogatories and requests to produce.
In addition, Applicants clarify certain interrogatories.
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As. stated below, the flRC' Staff supports 1) Applicants' notion to conpel CFUR to fully respond to Applicants' interrogatories and requests to produce documents, except with respect to interrogatory 6 and 2) Applicants' action to require supplenentation of CFUR's' responses, except with respect te interrogatories 76(a) and (b), 81, 82 and 112(e).
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DISCUSS 10'!
A.
Applicants' flotion to Compel CFUR to Fully Respond to Applicants' Interrogatories and Requests to Produce Documents is Appropriate and Should be Granted, Except With Respect to Interrogatory 6 Applicants seek a notion to colpel CFUR to respond fully to a number of
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interrogatories (which are specified in its notion), including the interrog-atories to which CFUR has objected.
1.
Interrogatories 1, 64, 73, 83, 89, 93, and 133 The first group of interrogatories that are the subject of Applicants' notion involve, in essence, the following questions:
a.
Please state in you'r own 'words the neaning of Contention (Interrogatories 1,64,93,and133).
4
.b.
please state.in your own words-the neaning of "
(Interrogatories 83 and 89).
c.
- What do you nean by " Applicants' failure to adhere".
(Inter-rogatory 73).
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l CFilR has responded by 1) stating that the langua'ge of the contention is in "CFUR's own words as accepted by the ASLB" (interrogatories 1, 93 and 133) or repeating the contention (interrogatory 64); 2) stating that the quoted l
language is the " Board's own words" (interrogatories 38 and 89); or 3) t-l paraphrasins the quoted language (interrogatory 73).
l The HRC Staff agrees with Applicants that CFUR's responses to the above l
l interrogatories are inadequate and that CFUR should be ordered to respond fully to these interrogatories.
Applicants state that the above interrog-atories are intended to detemine the precise clains and issues raised by CFUR with respect to each contention.
As such, these interrogatories clearly arepropir.
Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 f!RC 1038,1040 (1978); Northern States Power Conpany, et al. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 IIRC 1298,1300-01 (1977);
Boston Edison Company (Pilgrin fluclear Generating Station, Unit 2), LBP-75-30,
-1 '!RC 579, 582 (1975). As the Appeal Board has observed:
" Pleadings" and " contentions" no longer describe in voluminous detail everything the parties expect to prove and how they plan to go about doing so.
Rather, they provide general notice of the
. issues.
It'is-left to the parties to narrow those issues through use of various discovery devices so that evidence need be produced at the hearing only.on matters actually controverted..."
l Pennsylvania Power & Light Company and-Allegheny Electric Cooperative, I
Inc. (Susquehanna Stean Electric Station, Units 1 and 2), ALAB-513, flRC (September 23,.1980), slip..op. at 30.
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' :C70R's answers are not responsive to Applicants' interrogatories and do not provide the infomation which Applicants' properly seek. Accordingly,.the Soard should grant' Applicants' notion to conpel CFUR to respond fully to these interrogatories.
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2.
Interrocatory 12 (et al.)
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b The next group of interrogatories (referred to by Applicants as "Interrog-atory 12, et al.")1/ which are the subject of Applicants' notion to conpel involve the following question:
Uhat is your basis (legal and/or other) for your response to Interrogatory
?
CFUR responds to these interrogatories by stating that "since the interrog-atory is ambiguous and confusing, CFUR is unable to understand it and is therefore unable to respond.
Should Applicants be inquiring about legal 4
theories of CFUR, such an inquiry is clearly improper under 10 CFR 9 2.743 (b)(2)."
These interrogatories enuld, as asserted by CFUR, require the disclosure of legal theories of attorneys or other representatives of the parties if the interrogatories are read broadly. Such infomation is protectable under 10 CFR 5-2.740(b)(2).
In its notion to compel, Applicants have clarified and linited the scope of the information sought in these interrogatories.
Specifically:
Applicants are requesting in these interrogatories that CFU1 identify the legal.or technical support for its positions in this proceeding.
Applicants only seek the legal or technical bases for CFUR's claims, Pilgrim, supra,1 NRC at 582, and the infor-
-mation available to CFUR to support its positions, Susquehanna, 1/ ncluded'in this group are interrogatories 12, 15, 17, 20, 23, 26, 29, I
32,35,39,40(c),46,49,52,54,56,62,.72(c),-75,76(c),78,87, 91,105,108,111,112(f),114,116,118,121,123,125,127,129,132, 143(c),145,.147,151,155,.160,163, and 167,
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supra, ASLB Memoranda and Orders.
Such basis or information may be in the form of technical information to support a particular technical position, or in the form of regulations or statutory requirements which CFUR claims Applicants have not, but must, satisfy.
Applicants are. entitled to such information to permit then fairly to prepare their case for the hearings.- Tyrone, sucra at 1300-01.
Consequently, in that these interrogatories request in a clear and straightforward nanner information that is required to be supplied in NRC licensing proceedings, CFUR's claims of not being able to understand the interrogatory is
. simply evading a response.
Applicants' Motions, at 9.
4 As thus clarified and limited, these interrogatories appear to be relevant to the issues in the proccading and " reasonably calculated to lead to the discovery of admissible evidence." 10 CFR 5 2.740(b)(1).
As thus lirited, these interrogatories do not appear to require that legal theories be divulged.
Accordingly, to the extent that these interrogatories have been clarified and limited by Applicants and do not require that legal theories be divulged, the Staff supports Applicants' request for an order compelling responsive answers.
3.
Interroaatories 5, 67, 97, and 137 CFUR has objected.to four interrogatories posed with respect to four con-tentions, which state as follows:
What are the dates of the. meetings or. contacts you have had 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.
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CFUR's response to these interrogatories is essentially as follows:
Persons associated with.CFUR have met with persons associated with other. intervening parties, as well.as with. persons asso-sciated with Applicants and the Staff. -While matters touching
Contention _ cay have been discussed, none of these neetings was for the purpose of discussing Contention _.
Further, since there is no relevancy to this interrogatory, CFUR contends that the overly broad inquiry about these neetings constitutes an inpermissible, undue burden on and harassnant of CFUR.
In their notion to conpel, Applicants have clarified this type of interrog-atory as follows:
ADplicants are asking only that CFUR indicate whether such neet-ings have occurred with respect to a particular contention and whether such neetings or contacts resulted in agreenents or understandings that other parties or persons would aid CFUR in precaring for the hearings or provide information to CFUR re-garding the particular contention, and if sc, the extent of such aid or the nature of such infornation.
In other words, Applicants want to know if other parties nay play sone role in the presenta-tion or preparation of CFUR's position on its contentions so that Applicants can decide whether to pursue discovery against those persons or parties. Applicants' Motions, at 10,11.
As thus clarified and limited, these interrogatories appear to be relevant to issues in the proceeding and "reasonbly calculated to lead to the discovery of adnissible evidence." 10 CFR @ 2.740(b)(1).
CFUR's answer is not responsive to the interrogatories as clarified and limited by Applicants.
Accordingly, the Staff supports a notion to compel answers to these interrogatories as limited and clarified.
Any objection by CFUR to the interrogatory as clari-fied and limited would have to be on specific grounds.
Susquehanna, ALAS-513, suora,, slip. op. at 7.
4.
Interrocatories 6, 68, 98 and 138 Another series of interrogatories which are the subject of Applicant's notion to compel involves in essence, the following question:
Have you net with or contacted any other individual or group with respect to Contention
? If so, please identify that D**D
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individual or group and indicate.the reason for those neetings or contacts, the dates of those meetings or contacts and the results of these neetings or contacts.
CFUR's response to interrogatory 6 indicates that no meetings have taken place. Witn respect to interrogatory 68,El CFUR states that:
CFUR has had-one or more. contacts with one or more individual 5 with respect to Contentions 5, 7 and 8.
Certain inpressions and/or conclusions were reached as.a result of these contacts t
which have contributed to the position that CFUP. has ti< ken.
CFUR intends to make available the nanes of individuals who first of all have been determined to have substantive information and second of. all agree to present direct testinony.
l As part of its response, CFUR also states that "some disquieting events have taken place in the lives of individuals who have expressed opposition to CPSES." CFUR's response then goes on to describe "one example."
In addition, CFUR objects to identifying any individuals it has contacted with respect to l
l these contentions,.on the grounds that the nanes of "non-testifying indivi-duals are not discovrable".
According to CFUR, " blanket disclosure of the names of persons who have met with CFUR would subject those persons to a
~ potential unjustified invasion of their right to privacy."
l It is the HRC Staff's position that the information supolied by CFUR in its
. answers to-inte'rrogatories 68, 93 and 138 is not responsive to the interrog-
'atories. CFUR does not identify _any individual or group wigh whon it has met, nor does CFUR-indica'te the reason for those neetings or c~ontacts or the
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dates and' subjects of the meetings or contacts.
l' lbInresponsetointerrogatories98and138,CFURreferstoitsresponse
- to interrogatory 68.
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In addition, CF:lR's' objection to these interrogatories is insufficient.
The Staff interprets these interrogatories to only seek infomation that will enable Applicants to detemine whether other persons may play a role in the presentation or preparation of CFUR's position on its contentions so that l
Aoplicants can decide whether to pursue discovery against these persons or parties.N As so limited, the infomation sought by these interrogatories is not privileged and does not appear to involve an invasion of the privacy of any individuals or groups identified in response to the interrogatories.
Accordingly, the f1RC Staff supports the Applicants' request for an order compelling responses. to interrogatories 68, 98 and 138.
Since CFUR's response to interrogatory 6 states that no meetings have taken place wit'1 respect to contention 2, Applicants' notion to conpel is inappropriate with respect to that-interrogatory.
T 5.
Interrogatories 24, 25, 27,'28, 30, 31, 63, 74, 76(a) and 76(b),
80, 81, 82, 85, and 90 Applicants' notion to conpel also covers a number of interrogatories which request that CFUR specify the particular flRC licensing requirenents which CFUP, contends Applicants have not, but nust, satisfy, (interrogatories 63, Y
10 CFR _% 2.740(b)(1) specifically provides for ' discovery directed to obtaining infomation on the identity and location of persons having knowledge of any discoverable natter. Federal Rule of Civil Procedure-26, upon which 10 CFR 6 2.740(b)(1) is modelled.pemits inquiry of the nanes and addresses of persons from whon the_ interrogated party has
.obtained' statements or otherwise interviewed in the course of trial preparation. - 411oore's Federal Practice, 5 26.57[1], p.26-193.
Accordingly, CFUR's intent to only supply the names of individuals' who have substantive infomation and who will'present direct testinony is not in 'accordance with the discovery rules.
9-74, 76(a) and 76(b), 30, 81, 82, G5, and 90) or ask what CFUR contends Applicants nust.do to satisfy the allegations in particular contentions (interrogatories 24, 25, 27, 28, 30, and 31).
CFU'l has responded by assert-ing,~ in essence, that the Applicants (and/or Staff) "must coaply with appli-cable statutes and regulations" (interrogatories 24, 25, 27, 28, 30, 31, and 74), that CFUR nust complete discov'ery before it can respond (interrog-atories 81 and 82); that refer to CFUR's Petition to Intervene (interrog-atories 75(a), 76(b) and 90); that'the interrogatory is ambiguous (inter-rogatories 63 and 80) and by objecting on the grounds stated in rssponse to interrogatory 12 (interrogstories 63, 80, 81, and 82).
-The.NRC Staff believes that CFUR's responses to interrogatories 24, 25, 27, 28, 30, 31 and 74 are inauequate.
Since CFUR has affimatively asserted in Contention 2~that one or nore of the reports used in the " construction f
computer codes" for the CPSES/FSAR have not been " suitably verified and fomally accepted", it is reasonable for Applicants to assume that CFUR had at least sone minimal basis for such an assertion and in interrogatories 24,
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25, 27, 23, 30, and 31' to seek to detemine what CFUR would consider to be required of Applicants and Staff to have the reports or computer codes
' " suitably. verified and fomally accepted." Likewise, since CFUR asserts in
. Contention 5 that. Applicants hava' failed to adhere to the quality assurance /
quality control provisions required by the CPSES construction pemits, i-t is reasonable for Applicants to. assume that CFah nos at least some mininal:
basis' for such assertions'and to seek to detemine in interrogatory 74 what
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assurance / quality control provisions of the construction pemits.
CFUR's responses to these interrogatories to the effect that the Applicants and/or z.
the Staff nust " comply with applicable statutes and regulations" are evasive
.and.do not answer the questions posed by the interrogatories.- Accordingly, the Staff supports Applicants' notion to compel with respect to these inter-f rogatories.
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i The Staff also believes that CFUR has not adequately responded to interrog-atory 63..Since CFUR has asserted in Contention 2 that one or more of the reports used in the construction of the CPSES conputer codes have not been suitably verified and fomally accepted, Applicants seek to detemine in j
. interrogatory 63 the flRC requirements which have not been satisfied because of this alleged failure.
Rather than responding to this interrogatory, CFUR 4
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clains that it is " unable to answer. this Interrogatory because the words I
'llRC requirenents' are anbiguous in this context." Applicants have dispelled any ambiguity in these tems by stating in their notion that the interrog-4 1
atory clearly requests CFUR to identify the requirements which f1RC imposes i.
as a condition of licensing that are not satisfied as alleged by.CFUR in Contention 2.
Applicants' flotions, at 14.
t CFUR's responses to interrogatories 76(a) and (b),'80, 81, 32, 85, and 90
'are likewise deficient.
CFUR has affimatively asserted in Contention 5 that Applicants have failed 'to. adhere to the quality assurance / quality
' control provisions required by the CPSES construction pemits and the 4
requirements of Appendix 3.-to 10'CFR Part 50,-and that as a result, the l
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Commissi$n cannot make the findings re, quired b".o CFR 6 50.57(a) necessary C
. fo'r issuance of an operating license for CPSES.
si is therefore reasonable for Applicants a assune that CFUR has at least some minimal basis for such assertions.and to seek to determine in interrogatories 76(a) and (b), 80, 31, 82, 85,.and 90 the basis for such assertions and the'particular require-1
- nents which CFUR asserts have not been satisfied.
CFUR's statement that it nust complete discovery before it can answer interrogatories 81 and 32 is eva s~ive.
The NRC' Rules' of Practice require that discovery not be delayed
.because another party is conducting discovery, unless, inter alia, justice so requires (see 10 CFR 6 2.740(d)). Manifestly, CFUR has not shown that just..e, in fact, requires.that Applicants' discovery be delayed.
CFUR's nere reference to its petition for leeve to intervene in its responses to interrogatories 75(a) and (b) and 90 does not appear to provide the infor-mation which Applicants seek.
Similarly, CFUR's clain in its response to i
interrogatories 80 and 35, that the interrogatories are anbiguous, appears to be without nerit.
Applicants state in their notion that the interrogatories clearly request CFUR to identify the requirements which NRC inposes as a condition of licensing that are not satisfied as alleged by CFUR in Conten-tion 5.
See Applicants' Motions,' at 14, 4
In_additio'n, it is the-Staff's position that CFUR's_ objections to interrog-
- atories 63, 80, 81 and 82 are without nerit. - In_its responses to these 1/ n which interrogatories,'CFUR refers.to its response to interrogatory 12 i
Ab n interrogatory 12,f Applicants seek to deternine the basis (legal I
' and/or~ other) for~ the response to the previous interrogatory.
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4 it stated that to the extent Applicants interrogatory inquires "about the legal theories of CFUR, such inquiry is clearly improper under 10 CFR 9 2.740(b)(2)".
In interrogatories 63, 80, 81, and 82, Applicants seek the basis (legal and/or other) for the response to the interrogatories.
The Staff stated in discussing Applicants' notion for an order conpelling responses to Interrogatory 12, et al., that as clarified and limited by Applicants, this type of-interrogatory does not appear to require that legal theories be divulged. Accordingly, to the extent that this type of interrog-i atory has been clarified and linited by Applicants and does not require that legal theories be divulged, the Staff supports Applicants' request for an order conpelling responses.
For the foregoing reasons, the NRC Staff supports Applicants' nction for an i
order compelling fully responsive answers to interrogatories 24, 25, 27,.28, I
30, 31,.63, 74, 76(a) and (b), 80, 81, 82, 85, and 90.
6.
Interrogatories 33, 77, 104, 112(e), 115, 120, 122, 149, and 150 As part of their notion, Applicants seek an order conpelling responses to interrogatories 33,77,104,112(e),115,120,122,149,and150.
Applicants
. state that while CFUR has provided responses and has not objected to these interrogatories, the responses fail to properly answer the question posed in each interrogatory.
For the reasons set forth below, the NRC Staff supports the Applicants' notion compelling ' responses to these interrogatories.
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' a.
Interrogatory 33 In this interrogatory, Applicants seek to deternine the particular con-clusions based upon the computer codes (challenged by CFUR in Contention 2) which CFUR clains are " invalid".
CFUR responded to this interrogatory by referring to its responses to other interrogatories, which involve different aspects of this contention. The NRC Staff believes that CFUR's response is incomplete.
In addition, Applicants' interrogatory is not inproper, in that it only seeks the specific deficiencies, if any, that CFUR clains with regard to the challenged computer codes.
Pilarin, supra, 1 NRC at SS2.
b.
Interrogatory 77 In this interrogatory, Applicants seek to discover the specific actions CFUR clains in Contention 5 that Applicants nust take, but which they have not taken, to satisfy 10 CFR Part 50, Appendix 3.
CFUR's response to this interrogatory states that Applicants must " cease violations and take necessary and proper corrective action." As Applicants note, they clearly "are asking in this interrogatory what are the ' violations' and ' corrective actions' to which CFUR vaguely refers". Applicants' notions, at 16.
CFUR's vague response does not constitute a satisfactory response to this interrogatory.
c.
Interrogatories 104, 112(e), 115, 120, and 122 In these interrogatories Applicants seek to determine the precise actions CFUR clains in Contention 7 that Applicants nust take, but which they have not taken, to " adequately evaluate" the inpact of " fissure repair" and/or
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" rock overbreak." Applicants also seek specification of CFUR's allegations as to any improper actions already taken by Applicants.
CFUR has responded to these interrogatories by stating that Applicants should " conduct further seismic analysis," and CFUR "has reason to believe that loose rock naterial was thrown into the excavation prior to the pouring of concrete." It is the Staff's position that CFUR's answers' are incomplete and fail to respond cenletely to Applicants' interrogatories as required by 10 CFR 5 2.740.
In addition, Applicants' interrogatories are not inproper, in that they nerely request that CFUR specify its claims in order to refine the issues at the hearing.
Pilcrin, supra,1 NRC at 582 and Stanislaus, supra, 7 NRC at 1043.
The NRC Staff supports Applicants' notion conpelling CFUR to identify the precise nanner, scope and purpose of the " seismic analysis" it clains should
. be perforned and the basis for, and inpact clained with regard to, its alle-gation concerning " loose rock material."
d.
Interroaatories 149 and'150 These interrogatories seek specification of the substance of CFUR's clains in Contention 8 with regard to the drawdown of groundwater.
In interrog-atory 149, Applicants inquire about the precise effects CFUR clains will be caused by the drawdown of groundwater at a higher level than that which CFUR believes should be the maxicun level.
CFUR responds that there would be "nining and undesirable consequences on neighbors".. This answer is not fully responsive to' interrogatory 149.
Interrogatory 150 requests CFUR to i
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specify how it contends the drawdown of groundwater should be neasured.
According to Applicants this information is needed so that " Applicants can determine if CFUR believes inproper measurements are part of CFUR's clain of inadequate evaluation".
CFUR has responded to this interrogatory by stating that " manner and tining to insu-e no impingenent on neighbors now and in the future".
This answer does not respond to the question posed by Applicants.
For the foregoing reasons, the NRC Staff supports Applicants notion for an order by the Board conpelling CFUR to fully respond to interrogatories 33, 77, 104, 112(e), 115, 120, 122, 149, and 153.
S.
Applicants' !!otion For An Order Requiring Supplenentation of Responses Is Appropriate Except With Respect To Interrogatories 76(a) and (b), 81, 82, and 112(e) And Should Be Granted Applicants also seek an order from the Board pursuant to 10 CFR Q 2.740(e)(3)El conpelling CFUR to supplement its responses to a number of interrogatories.
These interrogatories cover a nunber of CFUR's contentions and vary widelv in terns of the questions posed.
The NRC Staff has evaluated Applicants' notion in light of the response provided by CFUR to the particular interrog-atory.
Based upon this evaluation, it is the Staff's position that Appli-cants' notion is appropriate and should be granted, as more fully set forth below, except with respect to Interrogatories 76(a) and (b), 31, 82 and 112(e).
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E/ 10 CFR 6 2.740(e)(3) states:
(3) A duty to supplement responses n y oe imposed by order of the presiding officer or agreenent of the parties.
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1.
The Board Should Require CFUR to' Supplement Its Responses To Interrog-atories 2,- 34, 37, 38, 40(b), 62', 79, 92,134, and 144 The particular responses to these interrogatories are not identical, but in general, the responses indicate that CFUR is not able to respond fully to
. the interrogatory at this tine, pending conpletion of its discovery against Applicant's (interrogatories '2, 34, 37, 38, 40(b), 62, 79, 92,134, and 144).
CFUP's answer is not sufficient since, as previously discussed, a response to the effect that'an answer to an interrogatory cannot be given until further discovery.is had is not an adequate response.
10 CFR Q 2.740(d).
While the interrogatory in this category would nore appropriately be the sobject of a notion to conpel, the Staff would support an orper requiring a responsiveanswertothese. interrogatories,whethersuchab,fderischarac-terized as one conpelling responsive answers or one requiring supplementation.6_/
See 10 CFR 9 2.740(e)(2).
2.
The Board Should Require CFUR.to Supplement Its Responses To Interrog-atories 3, 7,11,13,16,13 - 21, 50, 51, 57, 66, 72(a), 84, 95, 96, 99, 103, 106, 109, 112(a), 113, 117 119, 124, 128, 130, 131, 135, 136, 139, 141(a), 146, 148, 153, 154, 158, 161, and 164 CFUR has responded to these interrogatories by stating.that it has not prepared, or caused to be prepared any report, study or-analysis related to a particular contention (interrogatories 3, 95, 96,135 and 136); by nerely I
stating '" unknown at this tine"; by stating that the infomation necessary to 6/
i This _is particularly so in-light' of CFUR's efforts to be relieved of its obligatinn.to supplement its responses to Applicants' interrog-
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- atories.- See "CFUR's.ilotion For-Protection",' dated Septenber 18, 1930,
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- As stated Lin "flRC. Staff. Answer to CFUR's flotion For Protection",
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' dated-October 9, 19S0, at:5-7, it is the Staff's position.that_CFUR has not. established good cause for.such' relief.
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' respond to the interrogatory has not been detemined (or is incomplete) at this tine (interrogatories 66, 106, 117, 143 ( a ), 146, 148, 153, 154, 158, 161, and 164) or by stating that'the response given '3 subject to change (interrogato' ries 11 and 16).
These responses can be characterized as "conplete when made", in that CFUR does not appear to be presently in possession of the specific facts and infomation sought.
Such a response can constitute a proper interrogatory response.
Pilgrin, supra, 5 NRC at 537. While a party nust furnish, in its answer to interrogatories, whatever l
l infomation is available to it, ordinarily it will not be required to "nake research and compilation of data'not readily known to hin".E Thus, it appears that CFUR cannot be required to obtain the infomatinn necessary to l
respond to these interroaatories.
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In addition, CFUR clearly cannot be required to prepare'or cause to be prepared, any report, study or analysis
_related to a contention.
Nevertheless, should the infomation sought by i
Applicants in these interrogatories later become available to CFUR, CFUR would appear to be under a. duty to supplement responses to these interrog-atories pursuant to 10 CFR S 2.740 (e)(2).8_/ 10 CFR $ 2.740(e)(3) provides:
i 1
(e)
Supplementation of responses. A party who has responded to a request for di.scovery with a response that was complete when made is i
under no duty to supplement his response to include infomation there-after acquired except as follows:
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(2) A party is 'under a duty seasonably to anend a prior response'if he obtains infomation upon the basis of i
- U Pilgrin, LBP-75-30, supra, 5 NF,C at' 584, quoting Moore's Federal Practice, at p.33-103, Notes.10-11.
3/ The response stating " unknown at this tine" (emphases added) inplies that CFUR nay later obtain the infomation sought by Applicants.
. which (i) he knows that the response was incorrect when nade, or (ii) he knows that the response though correct when nade is no longer true and the circunstances are such that a failure to anend the response is in substance a knowing concealment.
Thus, where CFUR becones aware of infomation that would allow it to answer interrogatories for which its previous response was that it could rot answer the interrogatories, it would appear that CFUR would be bounJ to supplenent its previous response (which would no longer be correct) under 10 CFR
% 2.740(e)(2).
Even though Applicants recognize that CFUR nay be required to supplement its responses to these interrogatories pursuant to 10 CFR % 2.740(e)(2), the Staff believes that Applicants' have denonstrated that their request for a Board order compelling supplenentation should be granted.
As Applicants state:
Unile CFUR nay nonetheless be required to supplenent its responses to each of the above interrogatories pursuant to the requirenents of 10 CFR % 2.740(e), Applicants believe that a clear and precise requirenent imposed by order would serve to elininate the potential for disagreenent between CFUR and Applicants as to the tining and substance of supplementing responses.
Further, a nore efficient discovery process would be created if CFUR would supplement as necessary, the infomation requested by Applicants in clearly proper interrogatories as such infomation is developed and ascertained by CFUR.
If the Board grants this notion, un-necessary resubnission of interrogatories would be avoided and CFUR would not hcVe to resubmit responses to interrogatories until infomation becane available for it to do so.
Granting this notion would clearly be a means to Nmit Applicants to effectively inquire into the positions or CFL7, ta prepare its case for the hearing and to more likely assura the developnent of a sound record. Tyrone, supra, 5 NRC at 1300-C1.
Appl icants '
Motions, at 21-22.
. 3.
'The Board Should Require, In Accordance With 10 CFR 5 2.740(e)(2),
.That CFUR Supplement Its Response's To Interrogatories 65 and 94-Interrogatories 65 and 94 both pose the following question:
'What is your basis for Contention Please list all docunents not elsewhere identified in.those interrogatories on which you rely for your position on Contention ~
Please provide these documents for inspection and copying.
- CFUR responded to each interrogatory by listing as documents upon which it intends to rely, CFUR's May 7,1979 Petition For Leave to Intervene, its April 10,1980 Report on Each Contention, and the Prehearing Conference Transcript of April 30,1980.. CFUR does not object to these interrogatories.
Applicants request that the Board order CFUR to supplement its responses to these interrogatories because they find CFUR's responses to be " incomplete and insufficient responses to proper discovery requests." See Applicants' Motions, at 19.
Applicants state that "nere reference by an Intervenor to its petition for leave to intervene is not a sufficient response to dis-covery requests in NRC licensing proceedings," citing Pilgrin, supra,1 NRC
-at585.1/'
f EI In the particular ruling of Pilorin cited by Applicants, the Licensing Board held that:
With regard to Applicant's interrogatories to Intervenor Ford' and his objections thereto, the Board is of the vieu that the Applicant is properly seeking the information and facts being relied upon by the Intervenor in support of his contentions, and the nature of the evidence which Ford proposes to use~at the hearing. The Board feels' that the references by Intervenor,-in response to. specific interrog-atories, to the pages of its petition to intervene in which is contained auch argunentative and conclusory material, is
-(FOOTNOTE CONTINUED.0N NEXT PAGE) l i
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It-is the flRC Staff.'s opinion that CFUR's responses to these interrogatories isinadequate.EI If the. data, infomation or documents upon which CFUR intends to rely later becone available to CFUR,10 CFR S 2.740(e)(2) would require CFUR to supplement its responses. Since Applicants are clearly entitled to the infomation, data or documents sought in these interrog-atories, CFUR should be required to provide fully responsive answers to these interrogatories. Accordingly, the Board should grant Applicants' request-for an order requiring supplementation by CFUR of its responses to theseinterrogatories.El El (FOOTNOTE C0i4TINUED FR0:1 PREVIOUS PAGE) not sufficient in tems of the purposes of the discovery
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process.
Ford, as a party in the proceeding, has a responsi-bility to specify the facts, i.e., the data, infomation and documents, if any, upon which he intends to rely and upon which he has relied in support of his intervention, so that the parties nay be advised in advance with regard to the nature of Intervenor's case.
(footnote onitted and enphasis added) 5 fiRC~at 586.
El As so viewed, CFUR's response night more properly be the subject of a notion to conpel a full response, rather than a motion to require suppl enentation.
El It is conceivable that the bases for these contentions are linited to the docunents cited by CFUR in its response. Applicants state Inter-venors should recognize that discovery requests in Connission proceed-ings apply to information and bases to support a clain or contention in addition to whatever infomation served as a basis #or admitting the contention.
See Applicants' fictions, at 4.
Nonetheless, Applicants recognize that "if no further infomation is intended to be relied upon L
in support of a contention,:the Intervenor should so respond".
Id.., at 4.
CFUR cannot be required to provide bases or docunents that do not
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exist.
If all the infomation and documents intended to be reli.ed upon
.by CFUR in support of Contentions 5 and 7 are as set forth in'the
, documents cited by CFUR in its responses, CFUR should so state.
w 6 -
- E.
The Board Should Not Grant Applicants' Request For an Order Compelling Supplementation' of-CFUR's Responses to Interrogatories 76(a) and (b),
81, 82 and 112(e)
. Interrogatories 76(a) and (b),- 81, 82 and 112(e) are also covered by Appli-l
- cants' flotion to Conpel.
CFUR : responses indicate that it nay provide
- additional information in the future (interrogatories 76(a) and (b), and 112(e)) or that it nee'ds to complete discovery in order to answer (inter-rogatories 81 and 82). As stated in Section A.5., CFUR has also objected to I
interrogatories 81 and 82 on the grounds that they require disclosure of f
CFUR's legal theories, contrary _to 10 CFR _s 2.740(b)(2).E/
It is not clear whether Applicants are seeking an order requiring supplementation by CFUR of l.
its present answers or an order requiring supplementation by CFUR of the answers to be given in the future, in response to an order granting Appli-cants' notio1.to compel responsive answers.
If it is the latter, thcn Applicants' notion for an order requiring supplementation is prenature, l
.since.it'is. not possible now to determine whether those future responses
-would require supplementation.- :If on the other hand, Applicants' notion to compel responsive answers is not granted, and Applicants' notion for supple-nentation is'thus limited to the present answers because those answers are inconplete-when give*, CFUR would have an implied duty to supplement its l
present answers.
l l
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- Eb As the Staff states'in Sections A.2 and A.5., this type of interrogatory
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- does;not' appear to. require that CFUR disclose its legal theories.
v
Because these' interrogatories are also the subject of Applicants' notion to compel r'esponsive answers and in view of the anbiguities and uncertainties discussed above, the -Staff believes Applicants' notion to require ' aple-
'nentation'of these interrogatories is inappropriate and premature and should-be~' denied.
C0!!CLUSIO?!
.For the reasons set forth above, the Staff supports
- 1) Applicants' notion to compel -CFUR to provide responsive. answers,.except with respect to inter-rogatory 6, and 2) Applicants' notion to require CFUR to supplenent its responses, except with respect to interrogatories 76(a) and (b)~, 81, 82 and 112(e).
Respectfully subnitted,
- bla, (d A 11Tbc GId liarjorie Ulnan Rothschild Counsel for f!RC Staff
. Dated at Bethesda, tiaryland this 20th day of October, 1980 A
t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATCtIC SAFETY AND LICENSING BOARD In the Matter of
)
)
TEXAS UTILITIES GENERATING COMPANY, ET AL.
)
Docket Nos. 50-445
)
50-446 (Comanche Peak Steam Electric Station,
)
Units-1 and 2)
)
CERTIFICATE OF SERVICE 1 hereby certify that copies of "NRC STAFF'S ANSWER TO APPLICANTS' MOTIONS TO COMPEL AND TO FEQUIRE SUPPLEMENTATION" in the above-captioned proceeding have been served on the following 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 20th day of October, 1980:
l Valentine B. Deale, Esq., Chai rnan David J. Preister, Esq.
Atomic Safety and Licensing Board Assistant Attorney General l
1001 Connecticut Avenue, N.W.
Environmental Protection Division Washington, DC 20036 P.O. Box 12548, Capitol Station Austin, TX 78711 Dr. Forrest J. Remick, Member Atomic Safety and Licensing Board Mr. Richard Fouke l
305 E. Hamilton Avenue 1668-B Carter Drive f
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 & Liberr.an 4021 Prescott Avenue 1200 17th Street, N.W.
Dallas, TX 75219 Washington, DC 20036 Atomic Safety and Licensing Mrs. Juanita Ellis Board Panel
- President, CASE.
U.S. Nuclear Regulatory Commission 1426 South Polk Street Washington, DC 20555 Dallas, TX 75224 Atomic Safety and-Licensing Appeal Mr. Geoffrey M. Gay Panel (5)*
West Texas Legal Services U.S. Nuclear Regulatory Commission 100 Main Street (Lawyers Bldg. )
Washington, DC 20555 Fort Worth, TX 76102
g.,
Docketing and Service Section (7)*
Office of the Secretary
'U.S. Nuclear Regulatory Commission Washington, DC-20555 Pry (w; (4mu MieM(f Marjorie Ulman Rothschild Counsel for NRC Staff
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