ML19341C890
| ML19341C890 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 03/02/1981 |
| From: | Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8103040405 | |
| Download: ML19341C890 (9) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION A
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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TEXAS UTILITIES GENERATING
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Docket Nos. 50-445 COMPANY, ET AL.
50-446 (Comanche Peak Steam Electric
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Station, linits I and 2)
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NRC HAFF ANSWER TO CASE'S MOTION FOR POSTP0NEMENT OF RESPONSES TO INTERR0GATORIES REGARDING CONTENTION 22 PENDING RECEIPT OF CERTAIN INFORMATION FROM APPLICANTS I.
INTRODUCTION On January 19, 1981, the NRC Staff (Staff) filed "NRC Staff's First Set of Interrogatories To, and Request for the Production of Documents From Intervenor CASE" (hereafter " Staff's Interrogatories").
The Staf f's Inter-rogatories relate to the admitted consolidated contentions for which CASE has been designated lead intervenor.
(Contentions 22, 24 ard 25.) On February 9,1981, CASE.iled " CASE's Motion for Postponement of Responses to M ending Receipt o'f Certain Infor,
Interrogatories Regarding Contention 22 P
mation from Applicants." (hereafter " CASE's Motion for Postponement").
In CASE's, Motion for Postponement, CASE requests that the Atomic Safety and
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Contention 22 states that " Applicants have failed to comply with 10 CFR Parf 50, Appendix E, regarding Emergency Planning" because of a number of alleged deficiencies in Applicants' Emergency Plan, which are enumerated in subparts (a) through,(f) of Contention 22.
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0 1 Licensing Board (hereafter the Board) grant it "a postponement from answering further interrogatories by the Applicants and the StaffU (after our prelimi-nary response to the NRC Staff's First Set of Interrogatories...U) until we have received tha infomation in CASE's February 9 letter to Nicholas Reynolds, which was not provided in CASE's copy of Applicants' Emergency PlanN..."
CASE's Motion for Postponement, supra, at 2.
CASE also requests that its pleading be considered "a Motion to Compel Applicants" to supply the requested infomation if CASE has not received the infomation by liarch 9.
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As explained below, the Staff opposes CASE's Motion for Postponement.
In so far as CASE's Motion for Postponement also incides a request that such motion be considered a r,Uon to compel Applicants to provide CASE with certain infomation, the Staff ces no position with respect to that motion,
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Although CASE requests a " postponement from answering further inter-rogatories by the Applicants and Staff," the Staff is assuming here that CASE's request for postponement relates only to answering inter-rogatories regarding contention 22 (as is stated in the caption of C*.SE's flotion for Postponement).
Interrogatories C22-1 through C22-7 of the Staff's Interrogatories, supra, relate to Contention 22.
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On February 17, 1981, CASE filed " CASE's Answers to NRC Staff's First Set of Interrogatories and Request for The Production of Documents" (hereafter " CASE's Answers"). CASE's answers to the Staff's inter-rogatories were due on February 9,1981.
However, as CASE notes in CASE's Answers, supra, in response to CASE's request (to which the Staff did not object), the Board granted CASE an extension of time, until February 17, 1981, in which to file its answers to the Staff's interrogatories.
CASE provided some informatSn in response to two of the Staff's inter-rogatories relating to Conteition 22, but cited its Motion for Post-ponement, supra, in response to the majority of the Stat.*'s interroga-tories relating to that contention.
The Staff intends to file a flotion to Compel Responsive Answers relating to certain cf CASE's answers to the Staff's interrogatories.
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We assume that CASE is referring to Applicants' Emergency Plan (as revised in Amendment 12 to Applicants' Final Safety Analysis Report, October 8,1980.)
s because the Staff views that motion to be a matter between CASE and the Applicants.
II. DISCUSSION CASE's Motion for Postponement of Answers tc interrogatories Regarding Contention 22 Should Be Denied In CASE's Motion for Postponement, supra, CASE asserts that the infor-mation in its copy of Applicants' October 8,1980, Emergency Plan was incom-plete and " effectively precludes our responding to interrogatories fully and accurately," CASE's Motion for Postponement, at 2.
CASE therefore requests that it be granted a postponement from answering further interrogatories by the Applicants and the NRC Staff until it receives the information it requested in a letter of February 9,1981, to Applicants' counsel, Nicholos S. Reynolds.5_/
In response to CASE's request for infonnation, by letter dated February 12, 1981, (hereafter Applicants' Letter) Applicants' counsel, Nicholos S. Reynolds, advised CASE of the status and availability of the requested appendices.
As Applicants note in their response to CASE's request, Appendix K, " Emergency Plan Procedures" is not available at this time since it is not yet required to be submitted to the NRC.N With respect to Appendix M, " Appendix 3 to 5/
In CASE's letter of February 9,1981, CASE requested certain "Appendi-ces" to Applicants' Emergency Plan, supra, ( Appendix K, " Emergency Plan Preparedness"; Appendix M, " Appendix 3 to Annex L - Texas Radiological Emergency Response Plan for Fixed Nuclear Facilities"; Appendix N, "Somervell and Hood Counties Emergency Plans", and Appendix Q, "EPZ Evacuation Time Estimates").
6f Applicants cite 10 CFR Part 50, Appendix E, " Emergency Planning and Preparedness for Production and Utilization Facilities,"Section V,
" Implementing Procedures," whicn provides that an Applicant must submit detailed implementing procedures for its emergency plan no less than 180 days prior to the scheduled issuance of an operating license.
Annex L - Texas Radiological Emergency Plan for Fixed Nuclear Facilities,"
Applicants state that it is not available since "the Texas Plan has not yet been finalized." Applicants' Letter at 1.E Applicants transmitted to CASE a copy of Appendix N, "Somervell and Hood Counties Emergency Operations Plans."
According to Applicants, the information covered by Appendix Q, "EPZ Evacua-tion Time Estimates," is included in the Hood and Somervell Counties Emergency Operations Plans.
It is thus evident that all of the information sought by CASE which is presently available ( Appendix N and the information covered by Appendix Q) has been transmitted to CASE.E Accordingly, CASE's Motion for Postponement is moot insofar as the infomation covered by Appendices N and Q is concerned.
To the extent that CASE seeks a further delay in responding to the interrogatories regarding contention 22 pending receipt of the other "Appen-dices", CASE's Motion must be denied. CASE's Motion indicates a misunder-standing on the part of CASE regarding the nature and purpose of discovery and CASE's rights and responsibilities as a litigant in NRC proceedings.
CASE asserts that "the information supplied to it in our copy of the Appli-cants' October 8,1980 Emergency Plan was incomplete and effectively pre-cludes our responding to interrogatories fully and accurately." CASE's Motion for Por.tponement, at 2.
However, the fact that further appendices to Applicants' Emergency Plan may be submitted later and are therefore not now 7f The Staff has confimed the status of Appendices K and M.
8f The Staff understands Applicants' statement that Appendices K and N are not available to mean that they do not exist in final fom. Of course, at such time as the infomation requested by CASE exists in final form, and therefore is available to Applicants, it would appear reasonable for CASE to be provided with such infomation.
available, does not relieve CASE of its responsibility to respond to the interrogatories filed regarding Contention 22.
These interrogatories are intended to determine the precise claims and issues raised with respect to the alleged deficiencies in Applicants' Emergency Plan.
As such, these interrogatories clearly are proper. Pennsylvania Power and Light Company and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317 (1980); Pacific Gas and Electric Co.
(Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038,1040 (1978);
Northern States Power Company, et al. (Tyrone Energy Park, Unit 1), LBP-77-7, 5 NRC 1298,1300-01 (1977); Boston Edison Company (Pilgrim Nuclear Generating Station, Unit 2), LBP-75-30, 1 NRC 579, 582 (1975).
As a party in the proceeding, CASE has a responsibility to specify the facts, i.e., the data, infomation and documents, if any, upon which H intends to rely and upon which H has relied in raising the issues contained in Contention 22, so that the other parties may be advised in advance with regard to the nature of its case.
Pilgrim, supra, 5 NRC at 586.
In essence, CASE seeks a delay in discovery regarding Contention 22 until it completes discovery against the Applicants regarding Contention 22, i.e., until Applicants provide CASE with all of the information CASE seeks in its letter to Applicants.
However 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 9 2.740(d)).
Manifes tly, CASE has not shown that justice, in fact, requires that discovery regarding Contention 22 be delayed.
In this regard, the Staff's interrogatories to CASE regarding Contention 22 cite the sections of Applicants' Emergency Plan
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which address CASE's concerns regarding the alleged deficiencies in Appli-cants Emergency Plan, as set forth in Contention 22.
Notwithstanding the Staff's specific references to those sections in Applicants' Emergency Plan which address the alleged deficiencies in that Plan, CASE maintains that "its ability to respond adequately to interrogatories depends upon the response it receives from Applicants." CASE's Motion for Postponement, at 3.
CASE itself alleged deficiencies in the emergency plan in its Contention 22.
To allege sisch deficiencies, CASE mast have had some bases for the allegations. Tha Staff's interrogatories directed to Contention 22 seek an explanation of the bases for the concerns raised in that contention. While the additional infomation sought by CASE from Applicants may allow CASE to provide additional details or more complete answers in response to the Staff's interrogatories, such infomation should not be needed by CASE to respond unless CASE never had any basis for Contention 22 from the start.E In our opinion, neither the Staff, Licensing Board nor parties should have to await answers to the interrogatories regarding Contention 22 unitil such time as CASE considers Applicants to have provided sufficient information to enable CASE "to adequately respond to interrogatories," or until such time as CASE determines that Applicants' Emergency Plan is no longer "incompl ete. "E In these circumstances, there is no merit to CASE's y
If and when additional infomation sought by CASE is provided by the Applicants, CASE may update and supplement the answers that it now should provide in response to the Staff's interrogatories.
10f In this regard, the Staff notes that Applicants are not even required by NRC regulations governing Emergency planning to submit to the NRC at this time all of the infomation sought by CASE.
10 CFR Part 50, Appe. dix E,Section V, supra.
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request for postponement of answers to interrogatories regarding contention
- 22. Accordingly, CASE's Motion for Postponement should be denied.
t III. CONCLUSION For the reasons set forth above, the Staff opposes CASE's Motion for Postponement and urges that CASE's Motion for Postponement be denied.
Respectfully submitted, i
MQ kw kthcMt tiarjorie Ulman Rothschild Counsel for NRC Staff f
Dated at Bethesda, fiaryland this 2nd day of tiarch,1981 i
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o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 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. 50-445
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50-446 (Comanche Peak Steam Electric Station,
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Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER TO CASE'S MOTION FOR POSTPONEMENT OF RESPONSES TO INTERROGATORIES REGARDING CONTENTION 22 PENDING RECEIPT OF CERTAIN INFORMATION FROM APPLICANTS" in the above-captioned pro-ceeding 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 2nd day of March,1981 :
Valentine B. Deale, Esq., Chairman Mr. Geoffrey M. Gay Administrative Judge West Texas Legal Services Atomic Safety and Licensing Board 100 Main Street (Lawyers Bldg.)
1001 Connecticut Avenue, N.W.
Fort Worth, TX 76102 Washington, DC 20036 David J. Preister, Esq.
Forest J. Remick, Administrative Assistant Attorney General Judge Environmental Protection Division Atomic Safety and Licensing Board P.O. Box 12548, Capital Station 305 E. Ham ton Avenue Austin, TX 78711 State College, PA 16801 Mr. Richard Fouke Richard Cole, Administrative Judge
- 1668-B Carter Drive Atomic Safety and Licensing Board Arlington, TX 76010 U.S. Nuclear Regulatory Commission Washington, DC 20555 Arch C. McColl III, Esq.
701 Commerce Street Nicholas S. Reynolds, Esq.
Suite 302 Debevoise & Liberman Dallas, TX 75202 1200 17th Street, N.W.
Washington, DC 20036 Jeffery L. Hart, Esq.
4021 Prescott Avenue Mrs. Juanita Ellis Dallas, TX 75219 President, CASE 1426 South Polk Street Dallas, TX 75224
. 's Atomic Safety and Licensing Board Docketing and Service Section (7)*
Panel
- Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Appeal Panel (5)
U.S. Nuclear Regulatory Commission Washington, DC 20555 Q.E & % 5N&
Marjofie Ulman Rothschild Counsel for NRC Staff I
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