ML20004B653

Response in Opposition to Citizens for Fair Util Regulation 810512 Motion to Compel Response to 810409 Second Set of Interrogatories.Motion Will Be Mooted by Applicant Forthcoming Response.W/Certificate of Svc

ML20004B653
Person / Time
Site:	Comanche Peak
Issue date:	05/27/1981
From:	Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8105290228
Download: ML20004B653 (10)

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UNITED . 7ES 4 5'RICA NUCLEAR REG COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 COMPANY, -et_al. ) 50-446 (Commanche Peak Steam Electric ) (Application for Station, Units 1 and 2) Operating Licenso)

APPLICANTS' ANSWER TO CFUR'S /

MOTION TO COMPEL RESPONSIVE ANSWERS TO CFUR'S SECOND SET {%y g .f g g . q" " ,

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Pursuant to 10 C.F.R. $2.730(c), Texas Utilities Generating Co., et al. (" Applicants"), hereby submit their answer to the motion to compel filed on May 12, 1981 by Citizens for Fair Utility Regulation ("CFUR") regarding CFUR's second set of interrogatories to Applicants, filed April 9, 1981. Appli-cants responded to those interrogatories on April 28, 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 to Applicants' i

answers to its second set of interrogatories, which objections are identical to those raised in its April 28, 1981 motion to compel responsive answers to its first set of interrogatories.

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CFUR's objections evidence the same improper attempts to broaden the scope 'of its contentions and the same misconceptions regard-ing the proper scope of discovery as were put forth in its first motion to compel. Applicants discuss below those objections.

I. PERMISSIBLE DISCOVERY CFUR argues that Applicants have not applied the " proper standard of relevancy" in determining whether particular inter-rogatories are. relevant to Contention 7. 1/ CFUR would apparently have Applicants respond to CFUR's discovery requests regardless of whether that request is shown to be relevant to a particular contention. CFUR's interpretation of the principles governing discovery is erroneous.

CFUR contends that in determining whether its inter- ,

rogatories are within the scope of permissible discovery, the standard to be applied is whether the interrogatory is " relevant to the ultimate issue in this proceeding of whether the Applicants should be issued an operating license." CFUR adopts by reference in this pleading the arguments it made in this regard in its first motion to compel.

Applicants submit that CFUR's interpretation of the proper scope of discovery in this proceeding is erroneous. Appli-cants hereby adept and incorporate by reference their discussion 1/ Contention 7 as admitted by the Board is as follows:

! Applicants have failed to adequately evaluate whether rock "overbreak" and subsequent fissure repair using concrete grout have impaired the ability of category I structures to withstand seismic disturbances.

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on this point set out in their May 13, 1981 response to CFUR's first motion to compel, at pp. 3-4. In sum, as Applicants pointed out in that response, the purpose of discovery is to determine those issues within the scope of_ admitted contentions which should be litigated. 10 C.F.R. $2.740(b)(1). CFUR should not be pirmitted "to roam the shadow zones of relevancy and to explore matter which does not presently appear germane [to the admitted contentions] 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 Services (Barnwell Fuel Receiving and Storage Station),

LBP-77-13, 5 NRC 489 (1977) .

Accordingly, Applicants submit that applying the above principles regarding the scope of permissible discovery demon-strates that Applicants' responses to CFUR's second set of in-terrogatories were proper.

II. SCOPE OF CONTENTION 7 i

The Applicants responded to CFUR's second set of inter-

rogatories based on the assumption that those interrogatories were directed solely at Contention 7. CFUR does not argue that those discovery requests concern any other contention admitted in this proceeding. CFUR only argues that its interrogatories l

are relevant to the general topic of issuance of an operating l

license for Comanche Peak. For the reasons discussed above in Section I, that argument is without merit. Accordingly, the only question of relevancy to be answered is whether the inter-rogatories are relevant to Contention 7.

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4-Applicants have answered CFUR's interrogatories to the extent they concern the question of whether Applicants have adequately evaluated the effect of rock overbreak and

> fissure repair on the ability of category I structures to withstand seismic disturbances. CFUR's arguments that it should be permitted to inquire into other matters is merely an impermissible attempt to broaden the scope of Contention 7.

j III. OBJECTIONS TO SPECIFIC INTERROGATORIES A. Relevancy of Interrogatories to Contention 7 The only objection CFUR makes to Applicants' inter- ,

pretation of the relevancy of a specific topic to Contention 7 is with respect to " loose rock and the foreign material being introduced into CPSES structures." Applicants' responses to .

Interrogatories 12 through 17 and 23 through 31 were premised on the Applicants' interpretation of Contention 7 as being concerned solely with the effects of "reck overbreak" and j " fissure repair." In contrast, those interrocatories involve pouring concrete for the foundations (Interrogatories 12-17 and 27-30), and material incorporated into the foundation it-self or placed above the bedrock when the foundations were constructed (Interrogatories 23-26). Applicants submit that those topics are separate and unrelated to that of repair of fissures in bedrock and Applicants' objections should be upheld.

! Citing the Board's April 13, 1981 Order compelling CFUR to respond to Applicants' discovery, CFUR argues that the t

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Board has "hcid" that inquiries concerning " loose rock material" I

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which are the subject of Interrogatories 23-26, are relevant to Contention 7. To the contrary, Applicants sought in their motion to compel and the Board ordered in its April 13, 1981 order that CFUR provide more specific responses to Applicants' interrogatories concerning fissure repair at Comanche Peak, to which CFUR had merely responded that it had " reason to believe that loose rock material wns thrown into the excavation prior to the pouring of concrete." Applicants did not argue, and the I Board did not address, the question as to whethef CFUR's concerns regarding " loose rock material" were relevant to the issue of fissure repair raised in Contention 7. Applicants sought further specification of CFUR's responses because those responses did not I provide adequate information as to the nature of CFUR's claims regarding " loose rock material" so as to permit Applicants to prepare for the hearing if the topic was relevant to Conten-tion 7, or to take whatever action was necessary if the subject was not relevant to Contention 7. Thus, contrary to CFUR's assertion, the Board has not already determined that the topic of " loose rock material" is relevant to Contention 7. For the above reasons, the Applicants submit that that subject is not relevant to Contention 7 and Applicants' objections to Interrog-atories 23-26 should be upheld.

With respect to Interrogatories 12-17 and 27-31, l

Applicants objected to those interrogatories as seeking infor-l mation which is irrelevant to Contention 7, viz., the pouring of concrete for the foundations of Comanche Peak. CFUR does i

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not make any showing in its motion to compel as to how it believes that topic is relevant to Contention 7. CFUR simply argues, as discussed above. that all interrogatories should be answered if they are relevant to the issuance of an operating license. As demonstrated above in Section I., that argument is without merit. Accordingly, Applicants submit that their objections to Interrogatorier 12-17 and 27-31 should be sus-tained.

B. Other Interrogatories

1. Interrogatories 2.b., 7, 8, 9, 10, 18, 19, 21 and 22.

These interrogatories request that Applicants identify certain documents, reports, photographs and other tangible items.

Applicants respon.d by identifying the particular categories of documents that exist and which are being provided for inspection and copying by CFUR. See Applicants' response to CFUR's second request for production of documents, May 14, 1981. CFUR requests in the subject motion that the Board order Applicants to identify separately each document. CFUR's request should be denied since Applicants have already made available the requested documents which CFUR may itself review. Applicants should not be required to do CFUR's work for it.

2. Interrogatories 2.d., 3 4, 5 and 6.

These interrogatories seek the identity of all persons who "have knowledge" of each instance of rock overbreak and fis-sure repair or who were involved "in any way" with the excavation

for the foundations for Units 1 and 2 of Comanche Peak. Applicants have identified each organization that was involved in the excava-tion for those foundations or the evaluation of rock overbreak and fissure repair. Applicants submit their answers are adequate responses to CFUR's interrogatories.

For example, Interrogatories 3 and 4 request that Ap-plicants supply the identities of persons who were " involved in any way" with the excavation for the foundations for Units 1 and

2. CFUR's inordinately broad request is not consistent with the

! provisions of 10 C.F.R. $2.740(b)(1) which authorizes inquiries as to the identity and location of individuals "who have knowledge of any discoverable matter." Persor.s who were " involved in any way" with the excavations do not necessarily "have knowledge of" the issues raised in Contention 7. Thus, CFUR's inquiry is not permitted by the NRC Rules of Practice.

Nevertheless, in order to expedite the protracted discovery process, Applicants have endeavored to determine the names of the principal individuals involved in the rock overbreak and fissure repair activities. We emphasize that Applicants have done so not in recognition that CFUR's interrogatories are con-l l sistent with the Rules of Practice, but rather to provide CFUR with information voluntarily in the hope that endless discovery l

requests can be foreclosed.

Accordingly, Applicants will voluntarily provide shortly the names and affiliations of the principal individuals involved in the rock overbreak and fissure repair activities.

4 In these circumstances, CFUR's motion to compel responses to these interogatories is unnecessary, since the motion will be mooted by the Applicants' forthcoming response. "hus, the Board should deny CFUR's motion to compel with respect to Interrogatories 2.d., 3, 4, 5 and 6. 2/

Respectuqlysubmitted, I

Nichol, h4

{JReynolds d'

William A. Horin O.. W .

D E B E V O 1 3 E & L I B E.R M J LN

,1200 Seventeenth Street, N.W.

Washington, D.C. 20036 .

(202)857-9817 Counsel for Applicants May 27, 1981 l

l 2/ CFUR also moved the Board to compel adequate responses to CFUR's third set of interrogatories. That request is super-fluous in that CFUR has since filed a separate motion to compel with respect to its third set of interrogatories. Applicants will respond to that latest motion to compel on the schedule provided for in the Rules of Practice.

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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 License) r CERTIFICATE OF SERVICE 4

i I hereby certify that copies of the foregoing " Applicants'

Answer To CFUR's Motion To Compel Applicants To Hold Design l

Audit Near Comanche Feak," in the above-captioned matter were served upon the following persons by deposit in the United States mail, first class postage prepaid this 27th day of May, 1981:

Valentine B. Deale, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensi Board U.S. Nuclear Regulatory 1001 Cennecticut Avenue, N.W. Commission 4 Washington, D. C. 20036 Washington, D.C. 20555 Dr. Forrest J. Remick, Member Marjorie Ulman Rothschild, Esq.

l 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.

I Board Assistant Attorney General

' U.S. Nuclear Regulatory Environmental Protection Commission Division i

Washington, D.C. 20555 P.O. Box 12548 i

Capitol Station Chairman, Atomic Safety and Austin, Texas 78711

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Licensing Board Panel

- U.S. Nuclear Regulatory Mr. Richard L. Fouke Commission CFUR Washington, D.C. 20555 1668B Carter Drive Arlington, Texas 76010

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

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