ML19347B413
| ML19347B413 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/09/1980 |
| From: | Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8010150008 | |
| Download: ML19347B413 (12) | |
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10/09/80 UNITED STATES OF AMERICA hTCLEAR REGULATORY COMMISSION BEFOPI 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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i NRC STAFF ANSk'ER TO CFUR'S MOTION FOR PROTECTION INTRODUCTION On September 18, 1980, Citizens For Fair Utility Regulation (C%'R) filed "CFUR's Motion For Protection" pursuant to 10 CFR 8 2.740(c).
In this motion CFUR requests that the Atomic Safety and Licensing Board (the Board) enter a Protective Order pursuant to 10 CFR a 2.740(c) which would:
1.
Relieve CFUR of any responsibility to supplement its
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answers to Applicants' First Set of Interrogatories to j
CFUR and Requests to Produce;
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2.
Prohibit Applicants from conducting any discovery against CFUR until allowed to do so by subsequent Order of the Board; 3.
Require that any future written discovery requests to CFUR from Applicants be limited to not more than thirty (30) Interrogatories and Requests to Produce, including subparts, for any forty-five (45) dav period; and 4.
Award CFUR such further relief to which it may be entitled.
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As stated below, the NRC Staff believes that CFUR's motion for protection should be denied.
DISCUSSION In support of its motion for protection, CFUR describes the discovery rcquests of the various parties in this proceeding, noting that "Applicanes* First Set i
of Interrogatories to CFUR and Requests to Produce consisted of one hundred sixty-seven (167) interrogatories and requests, not counting subparts and multiple inquiries." According to CTUR, it is "a substantial burden on j
CFUR to respond to such voluminous and burdensome interrogatories as were i
served on it by Applicants".
CFUR further asserts that it has been unable to prepare any of its own discovery requests or otherwise prepare for the hearings in this proceeding. As stated by CFUR, should it continue to receive discovery requests puch as Applicants' First set of Interrogatories, 4
it will be effectively precluded from any meaningful participation in this proceeding, which would violate not only NRC regulations, but also would violate CFUR's constitutional rights of due process and free speech.
Finally, CFUR maintains that before it can respond to inquiries regarding 1
its anticipated participation in the upcoming hearings, "it must first be given an opportunity to obtain information and prepare such anticipated participation".
The NRC Staff believes that the above arguments represent a misconception on CFUR's part as to the nature and purpose of discovery and CFUR's rights and responsibilities as a litigant in NRC proceedings.
In addition, as will be shown more specifically below, CFUR's arguments do not establish good i
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I-cause for the specific relief CFUR seeks in its motion for a protective 1
order.
As the Appeal Board has noted, discovery is the descriptive term for pro-j cedures available to help litigants learn the nature of an adversary's case t
in advance of tria). Pennsylvania Power & Light Company and Allegheny i
Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, NRC (September 23, 1980) slip. op, at 4.
"In modern administrative and legal practice, pretrial discovery is liberally granted to enabic the parties to ascertain the facts in complex litigation, refine the issues, and prepare adequately for a more expeditious hearing."
Pacific Gas and Electric Co. (Stainslaus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038, 1040 (1978).
It is not proper for a party to ignore a discovery request.
Interrogatories, for example, must either be answered or objected to in the time allowed.
10 CFR a 2.740b(b).
Objections may be accompanied r
by a motion for a " protective order" to modify or eliminate the obligation i
to respond, but the movant must establish " good cause" for issuing such an i
order.
10 CFR 8 2.740(c). As noted by the Appeal Board in Susquehanna, ALAB-613, supra, quoting from Moore's Federal Practice:
4 Challenges to interrogatories must be specific enough so that
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the (tribunal) can understand in what way the interrogatories are claimed to be objectionable. General objections, such as 4
the objection that the interrogatories will require the party to conduct research and compile data, or that they are un-reasonably burdensome, oppressive, or vexatious, or that they seek information that is as easily available to the interrogat-ing as to the interrogated party, or that they would cause annoyance, expense, and oppression to the objecting party with-out. serving any purpose relevant to the action, or that they are duplicative of' material already discovered through deposi-tions; or that they are irrelevant and immaterial, or that I
they call for opinions and conclusions, are insufficient.
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r The Licensing Board in Susquehanna also pointed out that an applicant needs discovery to prepare for trial:
The Applicants in particular carry an unrelieved burden of proof in Commission proceedings.
Unless they can ef fec-tively inquire into the position of the intervenors, dis-charging 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 tb ust at hearing w }dbepatentlyunfairandinconsistentwitha sound record Although the applicant carries the ultimate burden of proof, intervenors also bear responsibilities.
In a ruling that has received explicit Supreme Court approval, the Commission has stressed that an intervenor must come forward with evidence " sufficient to require reasonable minds to inquire further" to insure that its contentions are explored at hearing. Suequehanna, ALAB-613, supra, quoting Consumers Power Co. (Midland Plant, Units 1 and 2),
CLI-74-5, 7 AEC 19, 30-32 and fn. 27 (1974), remanded sub nom., Aeschliman
- v. NRC, 547 F.2d 622, 628 (D.C. Cir. 1976), remanded sub nom., Vermont Yankee Nuclear Power Corp. v. NRC, 435 U.S. 519, 553-54 (1978).
In light of these basic discovery principles, it is apparent that CFUR has not established good cause for the type of relief it seeks, as explained more fully below.
-1/ Pennsylvania Power & Light Company and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 and 2), Memorandum 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).
A.
CFUR Should Not Be Relieved of the Responsibility To Supplement Its Answers To Applicants' First Set of Interrogatories to CFUR and i
Requests to Produce CFUR seeks relief from the requirements set forth in 10 CFR 2.740(e)2/ regard-ing supplementation of discovery responses.
It is the Staff's position that CFUR has not established good cause for such relief.
CFUR claims that it is impossible for it to respond to Applicants' Interrogatories and make any progress in its own preparation. However, the parties to this proceeding have been engaged in informal discovery since July 1979 and CFUR has in fact 10 CFR 82.740(e) provides:
(e) Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereaf ter acquired except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (i) the identity and location of persons having knowledge of discoverable matters, and (ii) the identity of each person expected to be called as an expert witness at the hearing, the subject matter on which he is expected to testify, and the substance of his testimony.
(2) A party is under a duty seasonably to amend a prior response if he obtains infor-mation upon the basis of which (i) he knows that the response was incorrect when made, or (ii) he knows that the response though correct when made is no longer true and the circum-stances are such that a failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the presiding officer or agreement of the parties.
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been an active participant in such informal discovery. ! In addition, there
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was a two-month period between June 16, 1980, the date formal discovery com-1 j
menced,4/ and August 1% 1980, when Applicants filed their first discovery j
requests of CFUR, in which CFUR, if it chose, could "make progress in its i
i own preparation for the upcoming hearings in the matter".
However, as of the date of the Staff's response, CFUR has not made any formal discovery f
requests of Applicants.
Prior to the Applicants' August 13 interrogatories l
of which CFUR now complains, CFUR could have sought formal discovery and worked on its case preparation. The fact that it did not do so and now, as i
i a result, must both respond to interrogatories and carry on its own formal discovery does not justify relieving CFUR from its duty under the regulations to seasonably supplement its previous responses to interrogatories. CFUR's 4
j arguments evidence a belief that a Iftigant with " limited manpower and even j
more limited financial resources"5/ may disregard the provisions of the Rules of Practice.
CFUR seeks to have the Board relieve it of its responsibility For a chronology of the informal discovery between the NRC Staff and CFUR, see "NRC Staff Answer to CFUR and CASE Responses to NRC Staff's Status Report on Proposed Stipulations and Their Requests That the NRC Staff Be Ordered to Provide Documents and Conduct Further Negotiations,"
dated March 10, 1980.
-4/ In its " Order Subsequent to the Prehearing Conference of April 30, 198C,"
(hereafter " Order") issued on June 16, 1980, the Board ruled upon the admissibility of Intervenor's contentions.
In its Order, the Board noted:
We are aware that to a degree informal discovery has been proceeding for some months.
Considering the fact that the Staff documents are not expected to be released until "early 1981", we do not believe a tight schedule is re-quired or appropriate at this time.
We have not bem asked by the parties to adopt a set schedule for discovery requests and responses but would urge that discovery requests be submitted with reasonable promptness and also responses thereto.
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See "CFUR's Motion for Protection", p.4.
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i to supplement its discovery requests while other parties to this proceeding remain under an obligation to comply with the regulations on supplementing answers. As the Appeal Board observed in Susquehanna, ALAB-613, supra at 38, "[s] imply as a matter of fairness, a licensing board may not waive the discovery rules for one side and not the other",
s B.
The Board Should Not Grant CFUR's Request That Applicants Conduct No Discovery From CFUR Until Allowed To Do So By Subsequent Order of This Board CFUR seeks to restrain Applicants from engaging in further discovery requests unless prior approval from the Licensing Board is obtained.
In evaluating this request, if should be first noted that the Board's Order, supra, did not contemplate that there would be only one round of discovery or that Board approval would be necessary in order for a party to engage in more than one round of discovery.
In order for Applicants to carry their ultimate burden of proof, it may be necessary for Applicants to engage in more than one round of discovery to determine what (if any) evidence underlies an intervenor's contentions.
Similarly, inadequate responses to first round discovery requests may require more than one round of discovery requests.
None of the arguments advanced by CFUR establish good cause for the restrie-tion it seeks to have the Licensing Board impose upon Applicants and no other party. The theme of CFUR's arguments is that any obligation on its part to respond to further discovery from Applicants will prevent CFUR from engaging in discovery against the other parties and will undermine its parti-cipation in this proceeding. However, as has been shown in the preceding discussion regarding CFUR's duty to supplement its responses to discovery requests, CFUR has had ample opportunity to engage in discovery and prepare
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its case.
Absent a demonstration to the contrary, CFUR's request that Appli-h cants be barred from engaging in further discovery against CFUR must be denied.
t c.
The Board Should Deny CFUR's Request That Any Future Written Discovery Request To CFUR From Applicants Be Limited To Not More Than Thirty Interrogatories and Requests To Produce, Including Subparts, For Any Forty-Five Dav "
'od CFUR also asks that Applicants be limited in the number of discovery requests j
' hey may make within a certain time frame.
CFUR's request is based merely on the same general objections to discovery by Applicants, which, in the 1
Staff's view are insufficient to warrant the relief which CFUR seeks.
In this regard, it should be noted that the NRC Rules of Practice (like the Federal Rules on which they are based) set no limit on the number of inter.og-atories parties may ask one another provided that they relate to the issues in controversy.
10 CFR R 2.740(b)(1).
CFUR does not assert that any of Applicants' previous interrogatories and requests to produce are irrelevant, it merely objects to their number and seeks to limit the number of Applicants' future interrogatories and requests to produce. As the Appeal Board in Susquehanna, ALAB-613, supra, at 24, noted, it is against the number and nature of the issues actually raised, not a count of formal contentions, f
that the reasonableness of Applicants' discovery requests must be balanced.
In addition, a single contention can cover many subjects fet inquiry.
Such is the case with the nine admitted contentions which are cert ed from the l
contentions advanced by CFUR.
For example, Contention 5, which concerns alleged inadequacies in Applicants' quality assurance / quality control pro-visions, raises a minimum of twelve issues related to specific construction i
practices of Applicants.
In like manner, Contention 6 consists of four 1
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subparts, each of which raises a separate issue. Absent a demonstration by CFUR that the number of Applicants' interrogatories and requests to produce are excessive, when balanced against the number of issues raised in CFUR's contentions, the relief sought by CFUR in item 3 of its motion should be denied.b i
i D.
The Licensing Board Should Deny CFUR's Request For Such Further Relief To Which It May Be Entitled CFUR has not established good cause for "such further relief to which it may be entitled" nor even identified the relief it seeks.
This request for re:ief as part of a protective order is
,o general and vague that it is not
-6/ CFUR's request for a protective order limiting the number of written discovery requests by Applicants must be evaluated with the recognition that:
In responding to discovery requests, a party is not required to engage in extensive independent research.
It need only reveal information in its possession or control (although it may be required to perform some investigation to determine what information it actually possesses).
Assuming truthfulness of ti.e statement, lack of knowledge is always an adequate response.
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Pennsylvania Power & Light Company nd Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 and 2), Memorandum and Order on Sched-uling and Discovery Motions (August 24, 1979) at 8 (unpublished).
In addition, as the Appeal Board in Susquehanna, ALAB-613, suir3L, observed (quoting Wright & Miller, Federal Practice and Procedure (Civil -- 1970 ed.), 982001 et seq.:
" 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 t,o the parties to narrow those issues through use of i
various discovery devices so that evidence need be produced at the hearing only on matters actually con-troverted.
This is why curtailing discovery tends to lengthen the trial -- with a corresponding increase in expense and inconvenience for all who must take part.
1 possible to discern the type of relief which CFUR seeks. Accordingly, this request should be denied.
CONCLUSION For the reasons set forth above, the NRC Staff urges that the Board deny in its entirety CFUR's Motion For Protection.
Respectfully submitted, f)1d7 M-Ma*I4 2
0 Marjorie Ulman Rothschild Counsel for hTC Staff Dated at Bethesda, Maryland f
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UNITED STATES OF AMERICA NUCLEAP. REGULATORY COMMISSION BEFORE THE ATC"IC SAFETY AND LICENSING BOARD In the Matter of TEY,AS 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 herely certify that copies of "NRC STAFF ANSWER TO CFUR'S MOTION FOR PRO-TECTION" 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 9th day of October, 1980:
Valentine B. Deale, Esq., Chai man David J. Preister, Esq.
Atomic Safety and Licensing Board Assistant Attorney General 1001 Connecticut Avenue, N.W.
Environmental Protection Division 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 Comerce 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 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
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Docketing and Service Section (7)*
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 l s10U ldw% Shcklck Marjofie Ulman Rothschild Counsel for NRC Staff i
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