ML19352B270

Answer to Citizens for Fair Util Regulation 810610 Motion for Protection & Request for Oral Argument.No Good Cause Demonstrated for Protective Order Motion.No Objections to Requests for Oral Argument.Certificate of Svc Encl

ML19352B270
Person / Time
Site:	Comanche Peak
Issue date:	06/25/1981
From:	Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8107010393
Download: ML19352B270 (13)

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UNITED STATES OF AMERICA fi Senkt l NUCLEAR REGULATORY COMMISSION 4 Branch BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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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 Licenses)

)

APPLICANTS' ANSWER TO CFUR'S MOTION FOR PROTECTION AliD REQUEST FOR ORAL ARGUMENT Pursuant to 10 C.F.R. 52.730(c), Texas Utilities Generating Co., et al. (" Applicants") hereby answer the motion for protec-

\ tion and request for oral argument filed on June 10, 1981 by

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Citizens for Fair Utility Regulation ("CFUR") in conjunction

~ with CFUR's response to the Applicants' motion to strike CFUR contentions. For the reasons set forth below, the Applicants urge the Atomic Safety and Licensing Board (" Board") to deny CFUR's motion for protection. Further, although Applicants do not believe that CFUR's request for oral argument at the 3503 3

prehearing conference scheduled for July 8 and 9 is necessary /

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for the resolution of the issues presented, Applicants do not 8107010 39 3 e

object to that request if the prehearing conference is not 1/

cancelled.~

I. Background On May 26, 1981, Applicants filed a motion to strike CFUR Contentions 2, 7 and 8 for default, pursuant to 10 C.F.R.

{2.707. That motion was founded on CFUR's failure to comply with the Board's April 13, 1981 Memorandum and order granting Applicants' modified motion to compel CFUR.-2/ The history of pleadings leading up to Applicants' motion.to strike is set forth in Applicants' May 26 motion, and need not be recounted her.e. CFUR's response to that motion to strike contained the subject motion for protection and request for oral argument.

The NRC Staff also filed an answer to Applicants' motion to strike, dated June. 12,. 1981.

. II. Applicants' Answer to Motion for Protection CFUR presents its motion for protection as a " renewal" of a similar motion filed September 18, 1980 which the Board dealt with in its Denial of CFUR's Motion for Protection, 1/ Applicants yesterday moved the Board to cancel the pre-hearing conference as unnecessary. Applicants' Motion to Cancel Prehearing Conference (June 24, 1981).

2/ In its response to Applicants' motion to strike, CFUR indi-Eates its intent to " defer to the efforts of the Staff" on the issue of groundwater withdrawal (Contention 8). In view of CFUR's withdrawal of Contention 8 from this proceeding, Appli-cants hereby withdraw that portion of their motion to strike which dealt with Contentior. 8, and request that the Board issue an order dismissing Contention 8 from consideration in this proceedine.

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l dated Decemer 5, 1980.-3/CFUR now "further" moves the Board

. to issue an order " protecting CFUR from being subjected to misleading and patently unmeritorious motions by the Appli-cants." As demonstrated below, CFUR's motion for protection is unmeritorious and should be denied by the Board.

A. CFUR Has Misread the Board's April 13, 1981 Order and Has Misinterpreted Applicable Principles of NRC Practice 4/

1. Interrogatories 15, 20, 23, 39, 46, 52, 54, 56, 62, 108, 111, 112 (actually ll2.c.), 114, 125, 127, 129 and 132.

CFUR complains that the Applicants present misleading arguments regarding CFUR's responses to Interrogatories 15, 20, 23, 39, 46, 52, 54, 56, 62, 108, 111, 112 (actually 112.c.),

114, 125, 117, 129 and 132, each of which request that CFUR 3/ CFUR does not indicate in the instant motion whether it now seeks to have the same conditions imposed on the Applicants which it raised in its September 18, 1980 motion and which the Board completely dismissed in its December 5, 1980 Denial. In any event, absent specification of its~ claim and the relief desired, that aspect of this motion for protection is patently inadequate under the NRC Rules of Practice. 10 C.F.R. $2.730(b).

Further, for the reasons set forth in Applicants' October 3, 19AO Answer to CFUR's motion, and the Board's December 5, 1980 Denial, that aspect of this motion for protection is unmeri-torious.

4/ Generally, a moving party may not reply to the answer to Its motion. 10 C.F.R. $2.730(c). In the instant case, however, CFUR bases its motion for protection on the argument that the  ;

Applicants' motion to strike " misrepresented the true nature of l the interrogatories and answers complained of" and is mislead-ing in several aspects. Accordingly, in order t.o adequately respond to CFUR's motion for protection, the 7pplicants must discuss the ad=3uancy of their motion to strixe and of CFUR's response thereto. Applicants have tried, nonetheless, to limit their answer to matters raised in the instant motion and/or to matters which ber.c on that motion.

identify the bases for its responses to previous interr.ogator-ies. CFUR's answer to each of these interrogatories was that it has conducted " inadequate discovery at this time." However, the Board had ordered CFUR to provide " complete responses" to each.of these interrogatories (Memorandum and Order, at 4-5,

13) and CFUR's answers clearly were not " complete". Yet CFUR now argues that its answers to those previous interrogatories were, in effect, that the information requested was " unknown,"

and that the interrogatories were therefore properly answered.

CFUR's arguments regarding its answers indicate a misun-derstanding of the Board's Memorandum and Order regarding the .

meaning of the word " basis", as well as certain principles of NRC discovery practice. First, as the Board pointed out in its Memorandum and Order, answer to interrogatories request-ing the bases for CFUR's positions "may be in the form of technical information to support a particular technical posi-tion, or in the form of regulatory or statutory requirements which CFUR claims Applicants have not, but must, satisfy."

Memorandum and Order, at 5. If, however, CFUR had no knowl-edge of the requested information (as now seems evident from its answer to the motion to strike), its answers should have so stated (Boston Edison Co. (Pilgrim Nuclear Generating Sta-tion, Unit 2), LBP-75-30, 1 NRC 579, 583, n.10 (1975)), and l not that it has conducted " inadequate discovery at this time."

l Accordingly, CFUR's argument that its answers to these inter-rogatories are proper is without merit.

Further, under applicable principles of NRC practice, CFUR's " inadequate discovery" answers are insufficient absent CFUR's "specifying, in what manner or what facts or what dis-covery requests rare pending" that would affect the particular.

answer. Pilgrim, supra, at 585; see 10 C.F.R. {2.740(d). In addition, the Board has already ruled that answers to inter-rogatories which seek the basis for a position are " incomplete and insufficient responses" where such answers are that CFUR has not conducted adequate discovery. Memorandum and order, at 11 (ruling on motion for supplementation). Nevertheless, CFUR persists in giving the reasons for its lack of knowledge .

of the requested information., viz., " inadequate discovery at this time," rather than state the basis for its answers or ,

that it does not have any knowledge of the requested infor-mation. Thus, CFUR's answers to these interrogatories are inadequate responses in view of the Board's Memorandum and order and applicable principles of NRC practice. Accordingly, 5/

Applicants' motion to strike is meritoricus~ and CFUR's com-plaints in its motion for protection are unfounded.

5/ We cannot let pass without comment the increasing ten-dency of CFUR (in contrast to all other parties) to impugn the motives of another party seeking to pursue available procedures and protecting its rights. This proceeding to date has been characterized generally by amicable and pro-fessional interaction between opposing parties. Recently, however, CFUR has seemed intent on lowering that level by innuendo or direct attack on motives. Applicants hope that CFUR will avoid such unnecessary conduct in the future.

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2. Interrogatories 27 and 30 CFUR claims that Interrogatories 24, 27 and 30 are "du-plicate shades of the same inquiry," and thus its answer to Interrogatory 24, which is referenced in CFUR's answer to Interrogatory 30, should be read in conjunction with its an-s,wers to Interrogatories 27 and 30. Thus, CFUR argues, its answers are "in all things" proper. However, each of these interrogatories is a separate and distinct inquiry and CFUR's answers to Interrogatories 27 and 30, which are the subject of the motion to strike, are inadequate.

Interrogatory 24 asks what CFUR contends the Applicants -

must do to have the computer codes and reports which are the subject of Contention 2 suitably verifie.d. Interrogatory 27 asks what CFUR contends the Applicants must do to have those computer codes and reports formally accepted. And finally, 4

Interrogatory 30 asks what Applicants must do to demonstrate that the computer codes and reports were, in fact, suitably verified and formally accepted. Applicants' motion to strike clearly concerns only CFUR's answers with respect to what Applicants must do to have the computer codes and reports for-mally accepted (Interrogatory 27) and what Applicants must do ,

I to demonstrate-6/that such formal acceptance has been achieved 6/ In its answer to Interrogatory 24, CFUR states that some type of demonstration by the Applicants must be made with res- I pect to the " suitable verification" of the computer codes and reports. Thus, CFUR's failure to recognize the inquiry in In-terrogatory 30 as being aimed at identifying what CFUR contends is involved in such a demonstration regarding formal acceptance is puzzling, at the least.

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(Interrogatory 30). CFUR's reliance on its answer to Inter-rogatory 24 as also being responsive to Interrogatory 27 and the portion of Interrogatory 30 is misplaced since Inter-rogatory 24 concerns the separate topic of " suitable verifi-

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cation.." Therefore, CFUR's characterization of Applicants' position on the answers to these interrogatories as "attemp-ting to mislead the Board" is untenable. Accordingly, Ap-plicants reaffirm the discussion in their motion to strike as demonstrating the inadequacy of CFUR's answers to Inter-rogatories 27 and 30.

3. Interrogatories 29 and 32. .

With respect to Interrogatories 29 and 32, which seek the baa s for CFUR's answers to Intsrrogatories 27 and 30, ,

respactively, CFUR evidently relies on its answer to Ih-terrogatory 26 (which is referenced in the answer to Inter-rogatory 32 and which seeks the basis for Interrogatory 24),

as constituting a complete and proper response. Again, CFUR does not accurately distinguish the distinct and separate in-quiries in Interrogatory 24, Interrogatory 27 and Interrogs-tcry 30. Thus, for the reasons discussed above, CFUR's fail-ure to make those distinctions has resulted in inadequate responses to Interrogatories 29 and 32 to the extent they con-cern " formal acceptance," which is the scope of Applicants' concern in its motion to strike. Accordingly, Applicants reaffirm the discussion in their motion to strike as demon-trating the inadequacy of those answers.

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In sum, the focus of the Applicants' inquiries in Inter-rogatories 27, 29, 30 and 32 is simply to determine what CPUR would have the Applicants do to have the computer codes and reports " formally accepted" and to demonstrate to the Board that formal acceptance has been achieved. CFUR has raised this issue in its contention, and Applicants have merely re-quested that CFUR spell out the specifics of its concerns.

Applicants are entitled to that information and the Board has directed that CFUR p'rovide complete responses to these inter-rogatories. Thus, Applicants' motion to strike is meritorious.

4 4. j Interrogatories 33 and j35 .

CFUR also argues that the Applicants' complaint with re-gard to CFUR's an'swers to Interrogatories 33 and 35 is base-less and misrepresents the inquiry of Interrogatory 33'. That interrogatory seeks identification of sne particular "conclu-sions" which are the subject of Contention 2 and which CFUR ,

contends are invalid. In the first instance, CFUR does not identify any such misrepresentation except insofar as it claims its response to Interrogatory 33 was proper. To the contrary, CFUR's response to Interrogatory 33 identifies only the par-ticular conclusions with which it is "most concerned." As for other conclusions, CFUR simply says that it "does not ac-knowledge the validity of any conclusion" based on reports not suitably verified and formally accepted. Not recognizing the validity of any conclusion does not, however, mean that CFUR plans to contend at the hearing that all conclusions are

invalid. Applicants are rimply trying to determine through Interrogatory 33 if CFUR has identified specific instances of invalid conclusions based on those codes and reports which it intends to challenge in the atjudication of Contention 2. If CFUR intends to challenge all such conclusions then it need only say so, rather than waffling by saying it "does not rec-ognize the validity of" those conclusions. As for CFUR's claim that it has properly resporided to Interrogatory 35, Applicants reaffirm their motion to strike as demonstrating that CFUR's answer is inadequate.

5. Interrogatories 105, ll2.f., ' ,

116, 118, 121 and 123 Finally, CFUR claims that its answers to Interrogatories

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105,. Il2.f., 116, 118, 121 and 123 are." proper" and Applicants

' fail "to state with particularity" how CFUR's responses are deficient. Again, however, CFUR has apparently misunderstood the ' meaning of the word " basis" which each interrogatory re-quests, and has provided only unsupported statements and sus-picions in its answers. Those answers clearly do not provide any technical information to support its technical positions i or any regulatory or statutory requirements to support its legal positions, as required by the Board's Memorandum and j Crder. Accordingly, Applicants' assertion that those answers are insufficient is clearly meritorious.

For the reasons discussed above, the Applicants' motion to strike is clearly meritorious and does not mislead the l Board or misrepresent any aspect of CFUR's responses to the

l Applicants' interrogatories. Accordingly, CFUR's motien i I

for protection is without merit and should be denied, l B. CFUR Has Not Demonstrated Good Cause for Its Motion CFUR has not, as required by 10 C.F.R. $2.740(c), demon-strated " good cause" for the protection which it seeks. The Applicants have accurately set forth in their motion to strike the issues regarding CFUR's responses to the Applicants' in-terrogatories and CFUR's compliance with the Board's Memoran-dum and Order. Thus, contrary to CFUR's arguments in its mo-tion for protection, the Applicants have not misrepresented,

, distorted or mislead the Board with respect to those issues.

Accordingly, CFUR's motion for protection should be denied.

Further, CFUR's claim that the Npplicants' motion to strike is unmeritorious, and that CFUR should be protected from such motions, is invalid. First, while a party may ar-gue that a motion is unmeritorious and should be denied, that argument is not " good cause" for a protective order. In any event, as demonstrated above, CFUR has not shown that the Applicants' motion is unmeritorious. In fact, CFUR does not take dispute with the Applicants' discussion of the relevant case law regarding default set forth in its motion to strike.-7/

7/ Also, in its answer to the Applicants' motion to strike, the NRC Staff does not deny that striking CFUR's contentions from the proceeding is a remedy available to the Board for CFUR's default. Rather, recognizing the default, the Staff posits that the Board should impose lesser sanctions on CFUR for its default. See NRC Staff Answer to Applicants' Motion to Strike CFUR Contentions for Default, June 12, 1981, at pp.

3, 13.

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Accordingly, Applicant.; urge the Board to deny CFUR's motion ,

for protection in its entirety.

Respec fu ly submitted,

^

I h Nicho Lp . .. Reynolds 0"

William A. Horin

a. %

DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202)857-9817 Counsel for Applicants June 25, 1981 e

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY 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 Licenses)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Applicants' Answer To CFUR's Motion For Protection and Request For Oral Argument," in the above-captioned matter were served upon the following persons by deposit in the United States mail, first .

class postage prepaid this 25th day of June, 1981:

Marshall E. Miller, Esq. ,

Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Marjorie Ulman Rcthschild, Esq.

Dr. Forrest J. Remick, Member Office of the Executive Atomic Safety and Licensing Legal Director Board U.S. Nuclear Regulatory 305 E. Hamilton Avenue Commission  ;

State College, Pennsylvania 16801 Washington, D.C. 20555 i Dr. Richard Cole, Member David J. Preister, Esq.

Atomic Safety and Licensing Assistant Attorney General Board Environmental Protection U.S. Nuclear Regulatory Division Commission P.O. Box 12548 l Washington, D.C. 20555 Capitol Station Austin, Texas 78711 Chairman, Atomic Safety and Licensing Board Panel Mr. Richard L. Fouke

. U.S. Nuclear Regulatory CFUR Commission. 1668B Carter Drive Washington, D.C. 20555 Arlington, Texas 76010 i

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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 fkl N '

William ~A.~Horia cc: Homer C. Schmidt Spencer C. Relyea, Esq.

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