ML19350C481
| ML19350C481 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/01/1981 |
| From: | Paton W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8104030356 | |
| Download: ML19350C481 (7) | |
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04/01/51 P00R ORIGINAL em,,1 1
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UNITE 7 STATES OF A" ERICA
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BEFORE THE AT0"IC SAFETY A'O LICE!:SI';F Pnt{
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N'I-'?T,h
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CA':SU"E'S DOUER Cnf*D2"Y
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Pocket Nos.
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E O-3??-0" & nl
("idland Plent, Units I and 2)
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TRC STAFF'S ANSE:ER 14 ODPOSITION v CONSUMERS POWER C0".PA'iY t'OTI0'. TO C0i'PEL ANSWERS TO INTERROGAT0 DIES Pursuant to 10 CFR % 2.730(c), the f:RC Staff answers Consu ers Pocer Co2 pany f*otion to Compel fiRC Staff to Answer Interrogatories 13 through 15.
The IMC Staff opposes the motion because (1) it is an atte'pt on Consurers Power Conpany (hereaf ter Consumers) part to force tne Sta#f to create a conpilation -_of a large volure of Consumers' data that is anilable to tnen but which does not presently exist in the specific fomat that Consumers has recuested and (2) the infornation sougnt is not
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relevant to the issues before this Board.
BACKGROUND On Fekuary 25, 1981 the NRC Staff filed answers to interrogatories that'had been submitted by ' Consumers on Novenber 12, 1980.
In a separate document filed on that same day, the NRC Staff ob.iected to Consu ers interrogatories 13 through 16' which read as follows:
13.
State with particularity each acceptance criteria which Consumers Power Company had'up until Dece.7ber 6, 1979
-provided to the Staff.
- 14. As _ of December 5,1979 with regard to each criteria identified inlyour answer to interrogatory 13 state whether Consumers had subnitted sufficient infornation to justify each 810.403.036(o
P00R ORIGINAL 2
i acceptance criteria.
If Consumers had not submitted sufficient infor13 tion, state with particularity which information Consu ecs had failed to supply.
15.
Excluding the acceptance criteria identified in response to interrogatory 13, state with particularity eac-acceptance criteria which Consumers has to date provided to the S ta f f.
16 Wito regard to each criteria identified in your answer to interrogatory 15 state whether Consumers has submitted sufficient infomation to iustify each acceptance criteria.
If Consumers has not subnitted sufficient infomation, state with particularity which infomation
' Consumers has failed to supply.
ARGUf'E':T A.
Consumers reauest is not within the limited scope of discovery against the Staff The' Appeal ~ Board recently discussed the limited scope of discovery against the NRC Staff. After discussing discovery fron parties other than the '4RC Staff, the Appeal Board stated that "[d]iscovery
. a;ainst the Staff is on a diffe ent footing.'M The. Appeal Board stated that the Rules of Practice allows interrogatories addressed to the Staff
'only where the infomation is. not obtainable elsewhere.
The infornation Consumers is requesting here is froa its own documents.
B.
The compilation of data Consumers seeks does not' exist and would have to be derived from Consurers' docurents Consumers asks for a coopilation'of-c;iteria they have provided the
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Staf f'both be' fore -and af ter December 6,1979.
They argue that the
-compilati_on of-. data that they are requesting "nust" exist.
At page 4 of
- their motion they state, "therefore, the infomation responsive to
- 1/.1 Pennsylvania Power and Light Coapany, (Susq'uehanna Steam Electric Station), ALAB-613, 12 NRC 317, 323 (1980).
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P00R ORIGINAL interrogatories 13 and 14 nust have been in existence as of December 6, 1979." Also on page 4 cf the notion states, "the NRC Staff nust also nave conpiled the requested infornation and data [recuested by interrogatories 15 and 15] in order to support that position."
In fact, the corpilation of data they seek does not exist.
Consuners' nation to conpel demonstrates their nisunderstanding of the ?PC Staff's regulatory role and review process.
The PC Ste#f does not design' nuclear power plants.
As a regulator, it reviews infor,ation sub-itted by applicants.
Applicants subnit :riteria for tneir ::esign
.Which the fRC audits in. their reviews to deternine acceptability.
tRC does not-review every criteria in an application.
Engineering judgment is' used to determine which portions of the application should be
-subjected to nore detailed review.- Thus, the infornation requested in Consurers' interrogatories 13 through 15.has never been co. piled by the NRC.
-If this Board.were to conpel the Staff to compile the data Consu ers is requesting, the Ecard would, in effect, be ordering the Staff to start the review process over again and review each and every criteria -
including criter_ia which in an auait review had not previously been reviewed. 1y-Section 33.20 of lioore's Federal Practice sets forth sone " general
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principles"? with respect to interrogatories calling for investigation or
- onpilation of data. One'of those general principles is that 22/ -In the event the Steff:were connelled to rake the' concilation which
- l Consumers has requested,:a'prelininary estinate is that.it would.
take several; nonths.
POOR BRIBlHR While a party nust furnish in his answer to inturrogatories whatever infornation is available to it, [ footnote critted]
ordinarily a party will not be required to "nake research and compilation of data not readily known to him" [ footnote omitted] - at least if the data is equally]available to the interrogating party [ citing nunerous cases.
In Webb v. Westinghouse Elec. Corp., 81 F.R.D. 431 (1977), a class action discrinination suit, plaintiff moved to compel answers to n fendants objected to reouests for cogilations n'
-interrogatories.
e inforation on the ground that the docunents fron which the compilations were to be derived had already been nade available to plaintiffs.
The court refused to conpel defendants to compile the information holding that plaintiffs were, in effect, asking the court to shif t the cost of triel' preparation. to the defendant.
In;the instant proceeding, the documents from which the conpilation sought were not merely made available to Consuners - they were created by consumers. This Board should not compel the Staff to create a conpilation of data fron Consumers' own documents.
C.
T_he information Consuners seeks is irrelevant to the issues.
The Decenber 6,1979 Order fiodifying Construction Pernits states, at page 3, that the _information provided by Consumers fails to provide acceptance criteria necessary for the Staff to evaluate the-technical adequacy. of Consumers' proposed remedial actions.
In the Staff's February 25, 1981 voluninous answers to Consumers' interrogatories, we identify the-information needed by the Staff for further review of
-renedial actions _ proposed byL Consumers.
We identify in response to-interrogatories 2,-6, 7 and 8 and appendices A and B where we have found criteria to be inadequate.
P00R ORIGINN.
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Tne Staff's dissatisfaction with identified criteria is what is at issue here.
Those natters are fully discussed in the Staff's answers to Consumers interrogatories.
-lhet Consumers is seeking to discovery is not really relevant to the issues before the Bosrd.
The Staff has identified, as discussed ab0ve.
-alI cri.teria 'found to be unacceptable and has indicated the reasons for Junacceptab'ility.. The-only other criteria within the Staff's possessicn are:
(1). criteria that have-been found acceptaSle and (2) criteria that have.not been reviewed. These other criter:a are not relevant to the
. issues befor'e the Poard. What is relevant is the dispute regarding
! criteria that have~ been ' submitted and have been found unacceptaMe.
00!;CLUSIO':
For the reasons stated above, Consumers notion to compel sho;1d be disnisset-Respectfully submitted,
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j05s (5911111an D. Paton-Counsel for fiRC Staff (Dated latiBethesda, Maryland this - lst day;of April,19S1.-
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Ut!ITED STATES OF AMERICA fiUCLEAR REGULATORY COMMISS10t
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BEFORE THE ATOMIC SAFETY AtiD LICEt:SIriG BOARD In the Matter of
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C0;;SUMERS POWER COMPA!;Y
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Docket tios. 50-329-0" & OL
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50-330-0" & OL (Midland Plant, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of fiRC STAFF'S A!!SWER If: OPPOSIT 10 : TO CO';SU"ER5 POWER COMPA!!Y. MOT 10fi TO COMPEL A!;SWERS TO IliTERR0GATORIES in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or,m indicated by an asterisk, through deposit in the fluclear Regulatory Commission's internal mail system, this 1st day of April,1951.
- Charles Bechhoefer, Esq..
Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Sumerset Street U. S. fiuclear Regulatory Commission Mid'and, Michigan 4E540 Washington, D.C.
20555 Philip P. Steptoe, Esq.
Administrative Judge Ralph S. Decker Michael I. Miller, Esq.
Route =4, Box 190D Ronald G. Zamarin, Esq.
Cambridge,ftD 21613 Alan S. Farnell, Esc.
Isham, Lincoln & Seale One First !!ational Plaza Dr. Frederick P. Cowan 42nd Floor 6152 fi. Verde Trail Chicago, Illinois 60603 Apt. B-1-25 Boca Raton, Florida' 33433
- Atomic Safety and Licensing Board Panel Frank J. Kelley _
U. S. fiuclear Regulatory Comission
~ Attorney General.of the State Washington, D.C.
20555 of Michigan Steward H.~ Freeman
- Atomic Safety and Licensing
' Assistant Attorney General Appeal Board Panel Gregory T. Taylor-U. S. fiuclear Regulat0'"r Comission Assistant Attorney-General-Washington, D.C.
20555
-Environmental Protection Division 720 Law Building-
- 0ocketing and Service Section Lansing, Michigan 48913' Office of the Secretary U.-S. liuclear Regulatory Commission Myron M. Cherry, Esq.
' Washington, D.C.'
20555 1 IBM Plaza
' Chicago, Illinois '60611:
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O P00R ORIG NAL Ja~es E. Brunrer. Esq.
Jeann Linsley
- Consu,ers Po.ser Company Bay City Tires 212 '.;est f"-Sican Av -
311 Fifth Street J3tison. l*ichigan 43.
Bay City, Michican 4 E7 ?f I?s.-Earbara Sta-iris 5795 !;. Rivcr i
Frecland. !*.ichigan 48623 "r. Steve Gadice 2120' C arter Aven..e St. Paal, :iinnescia 55108
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';er tell H. Marshall, Vice President
idc:est Environ ental Protection t
'Assreiates cra Jr
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h-7.3 : e s 2:.13 hasningten Avenue i
Saginaw, Michigan.48605
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eys.hilliam D. Paton Counsel for f4RC Staff.
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