ML19347F279

Answer Opposing Citizens for Fair Util Regulations (Cfur) 810428 Motion to Compel Answers to Cfur First Set of Interrogatories.Some Interrogatories Attempted to Improperly Broaden Issues of Contention 1.Certificate of Svc Encl

ML19347F279
Person / Time
Site:	Comanche Peak
Issue date:	05/13/1981
From:	Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8105180205
Download: ML19347F279 (12)

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May 13, 198 79, 133m

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NUCLEAR REGULATORY COMMISSION IEIF ' J"- ,[-

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s'p BEFORE THE ATOMIC SAFETY AND LICENSING BOARD jla

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In the Matter of )

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TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 COMPANY, et al. ) 50-446

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(Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating License)

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APPLICANTS' ANSWER TO CFUR'S MOTION TO COMPEL RESPONSIVE ANSWEP.S TO CFUR'S FIRST SET OF INTERROGATORIES Pursuant to 10 C.F.R. {2.730(c), Texas Utilities Generating Company, et al. (" Applicants" , hereby submit their answer to the motion to compel filed on April 28, 1981 by Citizens for Fair Utility Regulation ("CFUR") regarding CFUR's first set of interrogatories to Applicants.-1/ Applicants responded to those interrogatories on April 13, 1981. For the reasons set forth below, Applicants urge the Atomic Safety and Licensing Board (" Board") in the captioned proceeding to deny CFUR's motion.

CFUR raises several general objections regarding the Applicants' answers to its first set of interrogatories. Those

-1/ Although CFUR's interrogatories were dated February 25, 1981, they were not mailed to the Applicants until March 24, 1981. Applicants provided timely responses to the interrogatories based on the date the interrogatories were served.

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objections evidence an attempt to broaden improperly the issues raised in CFUR's Contention 1 and demonstrate CFUR's misconcep-tion of the proper scope of discovery in the instant proceeding.

Applicants discuss below CFUR's general objections.

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I. SCOPE OF CONTENTION 1 The Applicants have declined to answer interrogatories of CFUR which seek information concerning activities by entities other than Westinghouse and concerning matters other than the preparation of the Applicants' Final Safety Analysis Report

("FSAR"). Applicants contend that a proper interpretation of the scope of Contention 1 justifies their responses to the interrogatories, and CFUR's argument to the contrary is simply an attempt to broaden the scope of the contention impermissibly.

First, Contention 1 as admitted by the Board is directed solely at the sufficiency of Applicants' technical qualifica-tions in view of Westinghouse's contributions to the preparation of the FSAR. There is no suggestion in the contention or in the record that the Westinghouse contributions are merely an

" example" of the basis for the contention, as CFUR now claims.

2/ Contention 1 as admitted by the Board is as follows:

Applicants have not demonstrated technical qualifications to operate CPSES in accord-

, ance with 10 CFR $50.57(a)(4) in that they have relied upon Westinghouse to prepare a portion of the Final Safety Analysis Report (FSAR).

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In fact, the wording of the contention is taken verbatim from the wording proposed by CFUR in its April 10, 1980, Position on Each Contention. Further, CFUR has never otherwise indicated that its intended scope of Contention 1 was to include activities other than Westinghouse's contributions to the preparation of the FSAR. At the second prehearing conference held on April 30 and May 1, 1980, CFUR described its proposed contention, as follows:

MR. FOUKE: Well, as you know, contention one talks about the requirement that the applicant [ sic] demonstrate their technical qualifications and that because Westinghouse has prepared part of the FSAR they have failed to make this demonstration

[ Transcript of Prehearing Conference

- at 155 (emphasis added)]. ,

Also, in CFUR'a May 7, 1979, petition to intervene CFUR described the topic with which it was concerned, as follows:

"I. CORRECTIVE ACTIONS NECESSARY DUE TO PREPARATION AND DEFENSE OF COMANCHE PEAK FINAL SAFETY ANALYSIS REPORT BY '

WESTINGHOUSE IN LIEU OF PREPARATION AND DEFENSE BY THE APPLICANT [ sic]"

[CFUR's Supplement to Petition to intervene, May 7, 1979 at p.13 Accordingly, CFUR's attempt to broaden the scope of Conten-tion 1 must be rejected and the portion of its motion to compel which is based upon that broader scope should be denied.

II. PERMISSIBLF DISCOVERY CFUR argues that it is entitled to seek discovery on any matter which concerns the issuance of an operating license

for Comanche Fegk. Thus, CFUR would apparently have Applicants answer any interrogatories as long as they related to the t

issuance of an operating license for Comanche Peak, whether or not they concerned a particular contention.

CFUR's interpretation is of course completely at odds with 10 C.F.R. {2.740(b)(1), which provides as follows:

In a proceeding on an applicantion for ...

an operating license for a production or utilization facility, discovery ... shall relate only to those matters in controversy which have been identified by ... the presiding officer in the prehearing order ...

[10 C.F.R. 2.740(b)(1) (emphasis added)].

. Thus, the " subject matter" involved in this proceeding is cir-cumscribed by the contentions admitted by the Board. Accord- .

ingly, the Board should disallow CFUR's attempt to discover matters outside the scope of the contentions admitted in this proceeding. CFUR should not be permitted through this devico "to roam in shadow zones of relevancy and to explore matter 4

which does not presently appear germane [to the admitted con-tentions] on the theory that it might conceivably become so."

Broadway & Ninety-Sixth St. Realty Co. v. Loew's, Inc., 21 F.R.D. 347, 352 (S.D.N.Y. 1958); accord, Allied-General Nuclear 4

Services (Barnwell Fuel Receiving and Storage

• Station) LBP 13, 5 NRC 489 (1977).

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III. OBJECTIONS TO PARTICULAR INTERROGATORIES Interrogatories 2.b and 2d: CFUR complains'that Applicants' i responses are evasive and incomplete. On the contrary, Appli-cants have referred CFUR to all " documents, representations and other information" which Westinghouse provided and upon which i Applicants have relied in the preparation of the FSAR. Appli-cants have identified the particular sections of the FSAR where such information is to be found or referenced (see response to [

Interrogatory 17). Applicants have identified the requested information with sufficient specificity for CFUR to derive easily such information from the FSAR, which CFUR has in its possession. Applicants' responses are complete and forthright.

Interrogatory 2.c: CFUR argues that Applicants should I provide the " approximate time of reliance" for each document, representation and other information. Applicants' answer is responsive to the question in that Westinghouse's involvement in the preparation of the FSAR began in approximately 1977.

Interrogatories 3 and 4: CFUR objects to Applicants providing other than an " unqualified" yes or no answer to Interrogatory 3. CFUR does not, however, refute Applicants' objections to portions of this interrogatory on grounds of l relevancy. Based upon the foregoing discussion, to the extent Applicants object to the interrogatory, CFUR's motion should be denied. With respect to the remainder of the interrogatory,

1 Applicants' answer is "no", although Applicants do provide additional (i.e.," unrequested) information to CFUR for clarifi-cation regarding Applicants' role in the use of Westinghouse topical reports in the FSAR. Applicants' answer to Interroga- ,

tory 3 is proper and responsive. As for the answer to Interroga-tory 4, since Applicants' answer to Interrogatory 3 is a "no",

further response is not required.

Interrogatories 5 and 6: With respect to Interrogatories 5 and 6, CFUR complains that' Applicants should answer Interroga-tory 6 since the response to Interrogatory 5 " appears to be in the affirmative." Again, CFUR does not refute Applicants' specific objections to Interrogatory 5 on grounds of relevancy, . ;

. and thus Applicants' objections should be sustained. Further, Applicants have clearly provided a negative answer to Interroga-tory 5, although they have again added additional informaticn for clarification. In view of that negative response, Applicants properly dad not provide any further answer to Interrogatory 6.

CFUR's argument is, therefore, without merit.

Interrogatories 7 and 8: As for Interrogatories 7 and '

8, Applicants have interpreted CFUR's use in Interrogatory  ;

7 of the broad and undefined term " agree with" to mean " accept as appl! able and appropriate." If CFUR meant something else by that term it should have so stated in the subject motion. Thus, based on Applicants' reasonable interpretation of the interrogatory, the response to Interrogatory 7 is l

proper and so, therefore, is the answer to Interrogatory 8.

Also, CFUR fails' to refute Applicants' specific objection to Interrogatory 7 on grounds of relevancy, and thus, Applicants' objection should be sustained.

Interrogatories 9 and 10: CFUR disputes Applicants' objec-tion to Interrogatory 9 on grounds of relevancy. Applicants rely on the objection as stated in their answer and as discussed above in Parts I and II, supra, to demonstrate that CFUR's argu-ment is without merit. Applicants also objected on grounds of vagueness to a portion of interrogatory 9. Since CFUR does not clarify the issue in its motion to compel, Applicants rely on 3

their previously stated objection. Applicants' answer to Inter-

. rogatory 10 (which relies on a response to Interrogatory 9) is, therefore, also proper in view of the objection to Interroga-tory 9.

Interrogatories 11 and 12: CFUR complains that th3 Appli-cants did not respond to all aspects of these interrogatories.

However, CFUR again does not distinguish between Applicants' objections to portions of those interrogatories and Applicants' responses to the unoppoced portions. Since CFUR has not refuted Applicants' objections, those objections to Interrogatories 11 dnd 12 should be upheld. Applicants' answers are responsive to 3/ Applicants' use of the term "to review" is clear in the context of its answers to Interrogatories 3 and 11. Thus, contrary to CFUR's assertions, those instances have no bearing on the meaning of the term in Interrogatory 9.

the unobjected to portions of the interrogatories and CFUR's objections should be overruled.

Interrogatories 13 and 14: Applicants c bjected to interroga-tory 13 on two grounds. First, the interrogatory seeks informa-tion which is irrelevant to Contention 1, viz., a review of topical reports "to insure that safety function [s] will be accomplished." Since CFUR does not refute this objection, the Board should sustain it. Second, Applicants contend that the mea'.ing of the phrase "to review...to insure that safety func-tion [s] will be accomplished" is not apparent from the context of the interrogatory. CFUR argues that this is a "well under-stood concept," citing 10 C.F.R. $50.34 (b)(2). However, Appli-cants objection is with respect to the use of that terminology in the context of the interrogatory and Contention 1. Applicants maintain that the interrogatory is unduly vague, and the Board should sustain Applicants' objection.

Regarding interrogatory 14, that question depends o.. the response to interrogatory 13. In view of Applicants' objections to interrogatory 13, no response is required.

Interrogatories 15 and 16: CFUR's motion to compel with respect to interrogatory 15 is another example of CFUR's failure to distinguish between objections and information supplied in response to the unobjected to portions of the interrogatory.

CFUR does not respond to Applicants' objections, which should,

therefore, be sustained by the Board. Instead, CFUR seeks a simple "yes" or*"no" answer. To the extent Applicants did not object to the interrogatory, they responded in the negative, and CFUR's objection to the response should be overruled. Finally, since interrogatory 16 is answered on the basis of the negative response to interrogatory 15, no further answer is needed.

Accordingly, CFUR's objection thereto should be overruled.

Interrogatory 17: CFUR objects to Applicants' response to this interrogatory as not identifying any entity other than Westinghouse on whom Applicants relied for preparation of the FSAR. For the reasons discussed above in Parts I and II, and as set forth in Applicants' objection to the interrogatory, Applicants believe that the information sought with respect to (1) entities other than Westinghouse and (2) activities other than the preparation of the FSAR is irrelevant to Contention 1.

Accordingly, the Board should overrule CFUR's objection.

Interrogatory 20: CFUR wants to know why Applicants do not attach requested documents to the answer to interrogatories.

Applicants respond by quoting guidance on point from the Appeal Board:

The Commission's rules, like the correspond-ing Federal Rules, simply do not impose that requirement. A demand for documents is satisfied before the Commission as in court by producing them for inspection and copying.

[ Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317,338 (1980) (footnote omitted)].

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IV. OATH QR AFFIRMATION The form of oath or affirmation to accompany responses to interrogatories is not prescribed by the NRC Rules of Practice.

The affidavit provided by Applicants with respect to their answers to CFUR's interrogatories is in the form typically used in NRC proceedings and is proper. In any event, CFUR itself has used the same language for its oath or affirmation in answering Applicants' interrogatories. See CFUR's Supplement to Answers to Applicants' First Set of Interrogatories, May 8, 1981. Thus, CFUR cannot now be heard to complain that Appli-cants' affidavit is in any way inadequate.

Respectfu ly submitted, h

I A NicholqbS Reynolds VJ William A. Horin DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 857-9817 May 13, 1981 Counsel for Applicants

t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAHTY AND LICENSING BOARD In the Matter of )

) .

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

) 50-446

)

(Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating License)

CERTIFICATE OF SERVICE I hereby c rtify that ccpies of the foregoing "Appli-cants' Answer to CFUR's Motion to Compel Responsive Answers to CFUR's First Set of Interrogatories" in the above-captioned matter were served upon the following persons by deposit in the United States mail, first class postage prepaid this 13th day of May, 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 Office 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 Assistant 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 l Cce.imis sion CFUR l Washington, D.C. 20555 1668B Carter Drive Arlington, Texas 76010

Arch C. McColl,*III, Esq. Mr. Geoffrey M. Gay 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 i Commissica Mrs. Juanita Ellis Washington, D.C. 20555  !

P'res ident, CASE 1426 South Folk Street Dallas, Texas 75224

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

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