ML19350C635

Response in Opposition to Intervenor Citizens Association for Sound Energy 810317 Motion to Compel & to Require Supplementation to 810217 Fourth Set of Interrogatories. Motions Lack Merit & Are Unnecessary.W/Certificate of Svc

ML19350C635
Person / Time
Site:	Comanche Peak
Issue date:	04/01/1981
From:	Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8104060500
Download: ML19350C635 (13)

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- UM ORE THE ATOMIC SAFETY AND LICENSING BOARD'2 2 N

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TEXAS UTILITIES GENERATING COMPANY, en al.

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Docket Nos. 50-445 50-446

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

APPLICANTS' ANSWER TO CASE'S MOTION TO COMPEL AND TO REQUIRE SUPPLEMENTATION WITH RESPECT TO CASE'S FOURTH SET OF INTERROGATORIES TO APPLICANTS Pursuant to 10 C.F.R. $ 2.730(c), Texas Utilities Gen-erating Company, et al. (" Applicants") hereby submit Applicants' response to the motion to compel and to require supplementa-tion, dated March 17, 1981, filed by Citizens Association for Sound Energy (" CASE") in the captioned proceeding. Appli-cants submit, as demonstrated below, that the Atomic Safety and Liccasing Board (" Board") should deny CASE's motions as lacking in merit and/or as unnecessary.

I. BACKGROUND On February 17, 1981. CASE filed its " Fourth Set of Inter-rogatories to Applicants and Requests to Produce." CASE's Interrogatories dealt with Contention 22 (emergency planning) and Contention 25-(financial qualifications). Applicants submitted timely answers to those interrogatories in a 9503

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filing dated March 9, 1981. Also, Applicants filed on March 24, 1981 their timely response to CASE's requests for. production of documents, wherein Applicants indicated the availability for inspection and copying of documents requested in CASE's February 17 requests to produce.

II. -APPLICANTS' RESPONSE TO CASE'S MOTION TO COMPEL A. General Scope of NRC Licensing Proceedings.

CASE's motion to compel reflects an apparent misunder-

. standing of the requirements which Applicants must satisfy

'to receive an operating license for the Comanche Peak facility, and the permissable scope of the Intervenors' contentions and the responsibilities of Intervenors in litigating their contentions. Accordingly, Applicants discuss below some of

.tne basic principles applicable to this' proceeding regarding Appli-ants' demonstration of compliance with NRC' requirements for power reactor operating ~ licenses and CASE's responsibilities concerning its contentions.

i The Atomic Energy Act of 1954, as amended, 42 U.S.C.

s $$_2011 jui sec., .provides, in part, that an. application for-a license to authorize operation.of a nuclear power reactor shall'specifically state.such information as the Commission, by~ rule or regulation, may

-determine to be necessary to decide such of

'the' technical and financial qualifications l -of the applicant-. . ..uns the Commission

' may -deem appropriate for the license

[42 U.S.C. $12232 (a) (emphasis added)].

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Accordingly, for an applicant to receive a license to operate a nuclear power reactor the Atomic Energy Act requires that the applicant demonstrate compliance with the NRC rules and regula-tions and such other qualifications as the Commission determines to be appropriate.

Also, the scope of individual. licensing proceedings is 1.4mited to such matters as the Commission may direct. 42 U.S.C.

{ 2241(a). In this regard, the notice of opportunity for

. hearing in the instant proceeding indicated that matters involved in authorizing operation of the Comanche Peak facility would be (1) submittal of certain reports required by the rules and regulations of the NRC (viz., a favorable safety evaluation by the NRC Staff, completion of the required environmental review and receipt of the report of the Advisory Ccmrittee on Reactor Safeguards), and (2) a finding by the Commission that the application complies : with the Atomic Energy Act and the

-Commission's regulations. 44 Fed. Reg. 6995 (February 5, 1979). Thus, the scope of litigable issues in this proceeding

.is limited to a determination of whether the Applicant has demonstrated compliance with such rules and regulations as the Commission has established..

With' respect to the determination of the scope of CASE's

. contentions, CASE has the responsibility to specify its position on and the meaning of its contentions. See Northern-States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37,.5 NRC 1297,

.,1 ,n. ,

1300-01 (1977). Thus, Applicants are not required to speculate as to the meaning of CASE's contentions. In view of that fact, and that Applicants are required to demonstrate compliance with such rules and regulations as the Commission may establish for issuing an operating license, Applicants clearly are not required to demonstrate that they satisfy the concerns of CASE's general contentions to the-extent that those contentions seek consideration of matters beyond the scope of applicable NRC requirements.

.B. Applicants' Answers Regarding Specific Objections.

Applicants set forth below their answers to each of CASE's objections regarding Applicants' responses to CASE's interroga-tories. The interrogatories, Applicants' answers and CASE's

.,jasitions.are set forth in CASE's motion. The discussion below is arranged according to the numbers of CASE's Interrogatories.

Contention 25

1. - -Interrogatory 1. CASE contends that Applicants

. ignored that-portion of the interrogatory concerning Appli-cants' coa.pliance with the Atomic Energy Act of 1954, as

- ame nd ed . To the' contrary,-Applicants indicated that they have Lprovided or will provide the information concerning financial qualifications as required by. the Commission's rules and regulations and such other-information as the.NRC Staff may requ'est. As discussed above, a demonstration _of 9 * =

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compliance with the Commission's rules and regulations consti-tutes compliance with the Atomic Energy Act. Thus, Applicants' answer-is totally responsive to the interrogatory.

2. Interrogatories 2(a), 2(b) and 2(c). CASE objects to Applicants' answers as being " unresponsive." Applicants' answers are completely respons've. Applicants identified ,

in its answers to Interrogatories 2(a) and 2(c) all the docu-ments Applicants had provided to the NRC to date concerning financial qualifications to operate the Comanche Peak facility, viz., the Application for Operating License, dated April 2,

.1978, and the annual financial reports. Further, in response to question 2(b), Applicants have made those documents avail-able to CASE for inspection and copying. See " Applicants' Response to CASE's Requests for Production of Documents,"

March 24, 1981. CASE's objections are, therefore, without merit.

3. Interrogatories 3, 4, 5, 6 and 7. CASE objects to Applicants' answers to Interrogatories 3 and 4 as being " evasive and' inadequate." .To the contrary, Applicants responded to these

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_ interrogatories in the context of and consistent with the NRC requirements concerning financial-qualifications. The thrust of CASE's inquiry is. premised on'the erroneous assumption 1that

' Applicants must demonstrate to the NRC the same particular capabilities regarding-financial qualifications to operate

Comanche Peak as may be relevant in proceedings before rate-making agencies.

The NRC reqaires that each of the Applicants demonstrate that it has or has " reasonable assurance" of obtaining its share of the funds necessary to cover the estimated operating costs for each.of the first five years of operation plus the estimated costs of permanently shutting down the facility and maintaining it in a safe' condition. 10 C.F.R. $ 50.33(f) and Part 50 Appendix C. Applicants believe that they have submitted (or will submit in response to NRC Staff questions) the information to make the demonstration required by the NRC, and responded

.accordingly to CASE's' interrogatories. Applicants' answer was, therefore,: responsive and adequate.

As to Interrogatories 5, 6 and 7, CASE alleges that Applicants' answers are " incomplete and inadequate and un-

. responsive."' CASE's objections to Applicants' answers are

, premised on the same misconceptions evidenced-in CASE's objec-tions-to Applicants' answers to Interrogatories 3 and 4, in:that Interrogatory 5 builds on the response to Interroga-tory 3, and Interrogatories l6-and 7 build on the response-to Interrogatory 5. Thus, 'for the same reasons Applicants'

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.answersfto' Interrogatories 3 and 4 are proper, the-answers

'to' Interrogatories 5, 61and 7 are adequate and CASE's objections

'areLwithout merit..

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4. Interrocatory 8. CASE objects to Appl.icants' answer only on the grounds that Applicants' answers to questions 2(a),

3, 5 and 7 were inadequate and thus, CASE argues, the answer to question 8 "is not necessarily correct" since the interrogatory beilds on those previous answers. Applicants demonstrated above that its responses to previous interrogatories were responsive and adequate. Thus, CASE's objections are without merit.

5. Interrocatories 9, 10 and 11. CASE objects to Applicants' answers to these interrogatories because they refer to Applicants' answers to Interrogatories 2(a), 2(b)

- and 2(c), and CASE believes those enswers were inadequate.

- As Applicants demonstrated above, their answers to Interrega-

. tories 2(a), 2(b) and 2(c) were responsive and adequate.

Thus, _ CASE's objections to Applicants' answers to Interroga-tories 9, 10 and 11 are without merit.

Contention 22

6. Interrogatory 12. CASE' argues that Applicants have misinterpreted interrogatory '12 which asks that Applicants

'" state'in [their] own words_the meaning of ' emergency planning'."

. Applicants objected to the interrogatory as " irrelevant" in that Applicants are not required to explain.the meaning of CASE's T

contentions. CASE states that the interrogatory is directed'at the." broader ~concent" of emergency planning.and.not as the term is used inLthe contention. Applicants interpretation of the e

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question is reasonable. Applicants believed that the term

" emergency planning" referred to Contention 22, and as such did not undertake to explain that contention.

However, even as reinterpreted by CASE, the interrogatory remains .crelevant in that it would apply requirements beyond those which are imposed by the NRC concerning emergency planning and preparedness. CASE states that "the reason for CASE's question is that we believes [ sic] that Applicants do not clearly understand the concept, reasons and intentions of emergency planning." Of course, CASE may not interject its own understanding of that " concept" into this proceeding as a licensing requirement,-and questions in that direction are irrelevant' to 'this proceeding.

7. Interrogatory 14. CASE objects to Applicants' answer to Interrogatory 14 apparently as not being responsive.

Applicants' answer dealt with their compliance with NRC require-ments concerning emergency planning. CASE indicates that it

. sought in question 14, in effect, for Applicants to identify the " criteria" in Contention 22 which Applicants believe are beyond'the scope of NRC requirements. CASE has thus taken the erroneous (and unique) position that the Applicants are to define-and particularize CASE's position as~ set forth in CASE's contentions. To the contrary, CASE must specify its concerns as set.forth'in its' contentions. Pilgrim, supra, 5 NRC at 1300-1301.

_9-CASE's objection to Applicants' answer is, therefore, without merit.

III. APPLICANTS' ANSWER TO CASE'S MOTICN TO REQUIRE SUPPLEMENTATION Applicants' do not cbject to CASE's motion to require supplementation to the extent CASE requests that the Board require supplementation of responses to proper interrogatories posed in accordance with the NRC Rules of Practice. However, Applicants fo not believe it is necessary for the Board to issue the requested order. .The Rules of Practice impose a duty on a party to supplement responses to discovery requests. 10 C.F.R. 5 2.740(e). Applicants intend to supplement their responses to CASE's interrogatories as required by 10 C.F.R. $2.740(e).

~ Applicants.also believe it-is unnecessary for the Board to burden itself-with considering requests to require supplementatien of answers to interrogatories which a party has indicated it will supplement. Thus, Applicants will. rely on CASE's representations that it will.suppiament its answers co' Applicants' interrogatories.

1Accordingly, Applicants withdraw their February 23, 1981 motion to frequire CASE to supplement its answers.

If the Board should nevertheless decide to address CASE's motion to compel .cn1 the merits-(which Applicants emphasize they do not believe is necessary), Applicants make the following comments.

The Board should impose a_ duty to require supplementation only

on a case-by-case basis, pursuant to 10 C.F.R. 2.740(e)(3).

Applicants believe that such instances would not occur frequently.

With respect to CASE's instant requests for supplementation,

' Applicants believe that the blanket request for supplementation of'all past and future answers to interrogatories should be denied. .Such requests lack specificity and are speculative.

Regarding CASE's requestr for supplementation of answers to ,

particular interrogatories, Applicants respond, as follows:

1. Interrogatories 3, 4, 5, 6 and 7. Applicants urge that the - Board deny the request for supplementation for the reasons discussed.above, viz., the questions are premised on erroneous assumptiens regarding the application of the NRC rules and regulations concerning financial qualifications. Again, the Applicants'believe an order requiring supplementation is unneces-sary,'in that Applicants intend to supplement, as necessary, their answers already-provided, or as revised should the Board

- require-additional information from Applicants in ruling on b

CASE's-instant mction to compel.

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2. Interrogatories 9 and 10. Applicants believe that t

requiring supplementation of answers to these questions is

- unnecessary in that documents to be submitted to the NRC in the future.on this question will be done.in conjunction with the information sought in Interrogatory 2(a)1and CASE's Fifth Set of Interrogatories, which~information Applicants have made available or intend to make available to CASE.

IV. CONCLUSION

'For the foregoing reasons, Applicants submit that the Board should deny CASE's motion to compel and for supplementation of responses with respect to CASE's Fourth Set of Inter-

- regatories to Applicants and Requests to Produce.

Respectf l'y submitted, o

h 0, (

Nichol J Reynolds

)

( '

William A. Horin DEBEVOISE & LIBERMAN.

1200'- 17th Street, N.W.

Washing on, D.C. 20036 (202) 857-9817 Counsel for Applicants l ,

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Apri111,.1981' L

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UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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

et ) 50-446

)

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

CERTIFICATE OF SERVICE I hereby. certify that copies of the foregoing "ApplicTnus '

Answer to CASE's Motion"to Compel and to Require Supplementation With-Respect to CASE's Fourth Set of Interrogatories to Appli-cants," in the above captioned matter were served upon the following persons by deposit in the United States mail, first class postage prepaid this 1st day of April, 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 i . Washington, D.C. 20555 Dr.. Richard Cole, Member Atomic Safety and Licensing David J. Preister, Esq.

L 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

'. Commission CFUR Washington,-D.C. 20555 1668B Carter-Drive Arlington, Texas 76010-L__ _ _

Arch C. McCall, 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 Commission

.Mrs. Juanita Ellis Washington, D.C. 20555 President, CASE 1426 South Polk Street Dallas, Texas -75224 i

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

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