ML19346A357

Motion for Order Compelling Citizens for Fair Util Regulation to Provide Responsive Answers to Some of Applicants' 810423 Third Set of Interrogatories & to Suppl Responses.Certificate of Svc Encl.Related Correspondence

ML19346A357
Person / Time
Site:	Comanche Peak
Issue date:	06/12/1981
From:	Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8106190209
Download: ML19346A357 (9)

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FORE THE ATOMIC SAFETY AND LICENSING BC,

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TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 COMPANY, et - _al. )' 50-446 (Comanche Peak Steam Electric ) '

(Application for S t ati .'n , Units 1 and 2) ) Operating Licenses)

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APPLICANTS' MOTIONS (1) TO COMPEL RESPONSES, AND (2 ) TO REQUIRE SUPPLEMENTATION OF RESPONSES TO INTERROGATORIES IN APPLICANTS' THIRD SET OF INTERROGATORIES TO CFUR Pursuant to 10 C . F . R . $2.740(f) , Texas Utilities Generating Co., et al. (" Applicants") hereby move the Atomic Safety and Licensing Board (" Board") in the captioned proceed- ,

ing to order Citizens for Fair Utility Regulktion ("CFUR")

(1) to provide responsive answers to certain interrogatories in Applicants' Third Set of Interrogatories to CFUR, filed April 23, 1981, and (2) to supplement its responses to certain of those interrogatories when the information requested is developed or obtained.

I. Background on April 23, 1981 Applicants served their third set of interrogatories and requests to produce on CFUR. Those in-hterrogatoriesconcernedContention3 (computer code prediction 810619^hOf b

'a of the TMI sequence 'of events), Contention 4 (accident se-quence probabilities and analysis), and Contention 9 (health effects of radioactive releases). On May 12, 1981, CFUR filed a motion for a three-week extension of time (until June 2, 1981) in which to respond to Applicants' third set of inter-rogatories. Applicants opposed that motion in their May 18, 1981 answer. The Board did not rule on that motion, and CFUR filed its answers on June 2, 1981, three weeks late.

II. Applicants' Motion to Compel Applicants hereby incorporate by reference the discussion of law and NRC practice regarding discovery that was set forth in Applicants' September 30, 1980 motions to compel and to require suppleneatation of responses to Appli-cants' first set of interrogatories to,CFUR. In addition, the decision by the Appeal Board in Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-619, 12 NRC 317 (1980), discusses the principles of-discovery in NRC proceedings and reinforces Applicants' sum-1/

mary of applicable principles in their September 30 motion.~

Further, the Board, in its April 13, 1981 Memoran-dum and Order granting Applicants' modified motions to compel l

l 1/ Copies of that decision were forwarded to the Intervenors

! on November 17, 1980 by the NRC Office of the Secretary at the request of the present Board Chairman.

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CFUR te respond to Applicants' first set of interrogatories, noted its general approval of the Applicants' summary discus-sion of discovery in their September 30 motion and commended that discussion to CFUR. Memorandum and Order at 3. The Board also referred CFUR to the Susquehanna decision cited above. Accordingly, CFUR should be well-informed of its re-sponsibilities regarding responses to discovery requests in this proceeding.

Applicants submit that many of CFUR's answers to Applicants' discovery requests are inadequate responses under pertinent case law and the NRC Rules of Practice governing discovery. Accordingly, Applicants move the Board to issue an order compelling CFUR to respond 'to the following inter-rogatorie s .

1. Interrogatories 26-3, 28-3, 30-3, 32-3, 34-3 and 36-3 These interrogatories request that CFUR describe the details and consequences of certain " parameters" which it contends should be included in the computer codes which are the subject of Contention 3. These parameters are "oper-ator error" (Interrogatory 26-3), " maintenance error" (Inter-rogatory 28-3 ) , " hydrogen formation" (Interrogatory 30-3),

" single failure criterion interpretation" (Interrogatory 32-3),

"PORV problems" (Interrogatory 34-3), and " misleading indica-tions" (Interrogatory 36-3). CFUR',s responses to these inter-rogatories fail to describe any of the consequences which it

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attributes to these " parameters." Thus, CFUR's responses are

, incomplete. Accordingly, Applicants' move the Board to order CFUR to provide complete and responsive answers to Interrog-

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atories 26-3, 28-3, 30-3, 32-3, 34-3, and 36-3.

In addition, Interrogatories 26-3 and 28-3 request that CFUR identify the particular operator errors and main-tenance errors with which CFUR is concerned in Contention 3.

CFUR's answer merely provides " examples" of such errors. Such an answer is obviously an incomplete response. Accordingly, Applicants also move the Board to order CFUR to identify all operator errors and maintenance errors with which CFUR is concerned.

2. Interrocatories 45-3 throuch 83-3.

These interrogatories all deal with Contention 4.

The interrogatories seek specification Sf the issues in Contention 4 and request information concerning the bases for CFUR's claims. CFUR has responded to these interroga- '

tories, as a' group, as follows:

CFUR is unable to proceed at this time with responses to Applicant's [ sic] In-terrogatories pertaining to Contention 4.

CFUR provides no justification for its total failure to pro-vide responses to Applicants' interrogatories addressed to Contention 4. Neither does CFUR object to any of these in-terrogatories.

Applicants are entitled to seek the particular de-ficiencies which CFUR clains.in Contention 4 to exist, and

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to ascertain the bases for CFUR's claims. Boston 3dison Co.

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(Pilgrim Nuclear Generating Station, Unit 2), LBP-75-30, 1 NRC 579, 582 (1975). To permit CFUR to make skeletal con-tentions, to keep the bases for them secret, then require the Applicants to meet any conceivable thrust at the hearing would be patencly unfair. Northern States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298, 1301 (1977). In any event, CFUR is required either to answer or to object to

each interrogatory in a timel/ manner, 10 C.F.R. {2.740b(b).

CFUR's response to Interrogatories 45-3 through 83-3 is, there-fore, completely inadequate. Accordingly, Applicants move the i Board to order CFUR to provide complete and responsive answers j to each of Interrogatories 45 3 through 83-3.

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III. Applicants' Motion to Recuire Supplementation 4

i CFUR responds to numerous interrogatories (listed below) involving Contentions 3 end 9 by stating that the an-swers are " unknown at this time" or that further information or the balance of the requested information will be provided at a later date. Also, some answers rely on responses to pre-vious interrogatories for which CFUR indicates it will provide information at a later time. CFUR does not object to any of those interrogatories.

The subject interrogatories all request the bases for CFUR's claims in Contentions 3 ,and 9 and/or seek specif-ication of the issues which CFUF intends to raise. Applicants 4

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t are entitled to such information. Pilgrim, supra at 582.

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. Further, Applicants must be able to inquire effectively into the positions of CFUR on its own contentions. Tyrone, supra at 1301. Without supplementation of CFUR's response to these interrogatories, Applicants will be precluded from making such an inquiry. .

In order to promote the ef fective inquiry into CFUR's positions on Contention 3 and 9, Applicants move the Board to order CFUR to supplement its responses to the interrogatories listed below as soon as the information requested is developed or obtained.-2/ The Board is vested with the authority to issue the requested order in its discretion. 10 C.F.R. 52.740(e)(3).

Such an order would be proper in these circumstances since a

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general requirement for supplementation of responses should eliminate the need for Applicants to resubmit interrogatorias on a periodic basis in order to determine the status of CFUR's position. Accordingly, Applicants' move the Board to order 2/ Applicants do not move to require,CFUR to supplement re-sponses for which a duty to supplement is already clearly imposed pursuant to 10 C.F.R. 552.740(e)(1) and (2).

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CFUR to supplement its responses to the following interroga-o tories whenever the requested informatics is deve3 cped, or 3/

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. obtained.

Interrogatories 6-3, 11-3, 12-3, 15-3, 19-3, 20-3 through 23-3, 27-3, 29-3, 31-3, 33-3, 35-3, 37-3, 39-3, 96-3, 104-3, and 115-3.

Res'pect ly submitted,

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Nichola~ QJ Reynolds 1

V William A. Horin

. DEBEVOISE & LIBERHAN 1200 Seventeenth Street, N.W.

Washingtoni.D.C. 20036 (202) 857-9817 Counsel for Applicants June 12, 198,1 3/ Applicants are merely requesting that the Board require CFUR to supplement its answers to the subject interrogatories in the same manner in which the Board has ordered CFUR to supplement its answers to interrogatories which concern Contentions 2, 7 and 8. See April 13, 1981 Memorandum and Order regarding CFUR, at pp. 10-13.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

, BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4

In the Matter of )

)

TEXhS UTILITIES GENERATING ) Docket Nos. 50-445 COMPANY, et al.

) 50-446 (Conanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating License)

CERTIFICATE OF SERVICE

. I hereby certify that copies of the fcregoing " Applicants' Motions (1) To Compel Responses, and (2) To Require Supplemen-tation of Responses to Interrogatories in Applicants' Third Set of Interrogatories to CFUR" in the above-captioned matter were served upon the following persons by deposit in the United States mail, first class postage prepaid this 12th day of June, 1981:

Valentine B. Deale, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U.S. Nuclear Regulatory 1001 Connecticut Avenue, N.W. Commission Washington, D.C. 20036 Washington, D.C. 20555 Dr. Forrest J. Remick, Member Marjorie Ulman Rothschild, Esq.

Atomic Safety and Licensing Cffice of the Executive Board Legal Director 305 E. Hamilton Avenue U.S. Nuclear Regulatory State College, Pennsylvania 16801 Commission Washington, D.C. 20555 Dr. Richard Cole, Member Atomic Safety and Licensing David J. Preister, Esq.

Board As;istant Attorney General U.S. Nuclear Regulatory Environmental Protection Commission Division Washington, D.C. 20555 P.O. Box 12548 Capitol Station Chairman, Atomic Safety and Austin, Texas 78711 Licensing Board Panel . ,

U.S. Nuclear Regulatory Mr. Richard L. Fouke Commission CFUR Washington, D.C. 20555 1668B Carter Drive Arlington, Texas 76010

Arch C. McColl, III, Esq. Dwight H. Moore, Esq.

701 Commerce Street West Texas Legal Services Suite 302 100 Main Street (Lawyers Bldg.)

Dallas, Texas 75202 Fort Worth, Texas 76102 Jeffery L. Hart, Esq. Mr. Chase R. Stephens 4021 Prescott Avenue Docketing & Service Branch Dallas, Texas 75219 U.S. Nuclear Regulatory Commission Mrs. Juanita Ellis Washington, D.C. 20555 President, CASE ,

1426 South Polk Street Dallas, Texas 75224

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William A. Horin cc: Homer C. Schmidt Spencer'C. Relyea, Esq.

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