ML20004D081

Answer Opposing Citizens for Fair Util Regulation 810519 Motion to Compel Responsive Answers to Interrogatories. Interrogatories Attempt to Broaden Scope of Contentions Impermissibly.W/Certificate of Svc.Related Correspondence

ML20004D081
Person / Time
Site:	Comanche Peak
Issue date:	06/03/1981
From:	Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8106080327
Download: ML20004D081 (12)

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June 3, 1981 s

UNITED STATES OF AMERICA ./; 7:-. m ;(%-p NUCLEAR REGULATORY COMMISSION

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARDf "

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In the Matter of ) \ O ~Q R,

) 's- . , ' ' ,' J' Docket Nos. 50-445 TEXAS UTILITIES GENERATING )

COMPANY, _et _al. ) 50-446 (Comanche Peak Steam Electric ) (Application for

, s ation, Units 1 and 2) ) Operating Licenses)

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,.a, n it.U nf LJ G a APPLICANTS' ANSWER TO CFUR'S

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\1 :ew a:c4 f,N Pursuant to 10 C.F.R. $2.730(c), Texas Utilities

'Ut i'j7 rating Co., et al. (" Applicants"), hereby submit their answer to the motion to compel filed on May 19, 1981 by Cit-izens for Fair Utility Regrlation ("CFUR") regarding CFUR's ,

third set of interrogatories to Applicants, filed April 15, 1981. Applicants responded to those interrogatorit.s on May 4, 1981. For the reasons set forth below, Applicants urge the Atomic Safety and Licensing Board (" Board") to deny CFUR's motion.

CFUR raises in the subject motion to compel sev-eral general objections to Applicants' responses which ob-jections are identical to the positions taken by CFUR in its motions to compel responsive answers to its first and second sets of interrogatories, dated April 28 and May 12, 1981, respectively. As discussed below, CFUR's objections 95*3 gFf 81060803Z

represent'a continued attempt'to broaden the scope of its contentionsLimpermissibly. Accordingly, Applicants urge the Board to deny promptly the subject motion (as well as CFUR's previous motions to compel) in order to facilitate the ex-peditious conduct of meaningful discovery in this proceeding.

I. PERMISSIBLE DISCOVERY CFUR again misreprasents the permissible scope of discovery'in this proceeding. CFUR argues that so long as its interrogatories are relevant to whether Applicants are qual-ified to be issued an operating license, the interrogatories should be answered. To the contrary, CFUR's interrogatories must be relevant to the matters in controversy identified by the presiding officer, viz., the contentions admitted in the .

prehearing order (June 16, 1980 Order). 10 C.F'.R. $2.740(b)(1).

Applicants hereby adopt and incorporate by reference its dis-cussion on this point set out in thpir May 13, 1981 response to CFUR's first motion to com;+st; et pp. 3-4.

Further, in the p L;4 r.ption CFUR (for the first time in any of its interrogatories to Applicants or its motions to compel) identifies par'.icular contentiens at which it claims its interrogatories are directed. CFUR states that its third set of interrogatories "has direct applicability to Contentions 2 and 4." 1/ CF.UR does not itate which specific interrogatories i

1/ CFUR also states that "the quality of the Applicants' answers have some bearing on Contention 1." Since this is not a claim that the interrogatories are relevant to Contention 1, and thus has no bearing on the instant motion to compel, Applicants do not respond to that statement.

1 are directly applicable to those Contentions, nor does it dis-cuss in whatimanner it contends those interrogatories are rele-vant to Contentions 2 and 4. Applicants submit that their interpretation of CFUR's thirdiset of interrogatories as being solely applicable to Contention 3 is reasonable and, in the absence of any demonstration to the contrary by CFUR, should be upheld. Neither the Board nor the Applicants should have -

to make CFUR's arguments for it since, as the ptoponent of an order to compel, CFUR has the burden of proof. 10 C.F.R.

{2.732. 1 In any' event, Applicants submit that those inter-rogatories are not relevant to either Contentions 2 or 4.

, Contention 4 is concerned with the probability of certain types of accidents which CFUR claims should be evaluated as cred-ible ace'idents at Comanche Peak. CFUR's third set of inter-rogatories on the other hand concern the question of whether Applicants' accident sequence analysis computer codes accur-ately predict the results of certain tests of accident se-quences or predictions made by the NRC Staff codes, without regard to the probability'of such accident sequences ever occurring. Cc'UR does not mention once in its interroga-tories the question of accident probabilities. Further, Contention 2 concerns acceptance and verification of the l reports used in the computer codes for Comancho Peak. Yet CFUR's third set of interrogatories address the accurate prediction of plant behavior, which Applicants interpret as

directly applicable to Contention 3 which concerns prediction of plant behavior for accidents involving the sequence'of events at TMI. Specifically, in interpreting the relevancy of CFUR's interrogatories to Contention 3, Applicants objected to interrogatories which were not relevant to the sequence of events at TMI. (Interrogatories 1 through 6). Notably, CFUR does not .:ontradict those specific objections or identify those interrogatories as being relevant to any other contention.

(CFUR simply argues generally as to the relevance of "many" (unspecified) interrogatories to Contentions 2 and 4). Thus, CFUR fails to dispute the Applicants' interpretation of the thrust of CFUR's interrogatories.

Accordingly, Applicants submit that their interpre-tation of CFUR's third set of interrogatories as being appli-cable solely to contention 3 is reasonable.

II. REQUESTS FOR PRODUCTION OF DOCUMENTS CFUR contends that Applicants should produce for inspection and copying all documents which were the subject of interrogatories seeking identification of documents. CFUR argues that its statement in the introduction to its inter-rogatories that Applicants should "make available for inspec-tion and copying all documents subject to the requests set forth below," coupled with its interrogatories regarding iden-tification of documents, constitute requests for production of 1

documents. CFUR's position is contrary to usual discovery prac-tice and past practice in its own previous discovery requests.

First, it is standard discovery practice that an interrogatory as to the existence of doc'2ments is not gro tanto a request for their production, and careful practice requires that the request for production be made prior to filing a motion to compel production. See Howard v. Seaboard Coastline Railroad Co., 60 F.R.D. 638 (N.D. Ga. 1973). 2/

Thus, in the absence of a request for production of documents, as opposed to an interrogatory seeking identification of docu-ments,. Applicants properly responded to CFUR's third set of interrogatories.

Second, Applicants note that each of CFUR's previous sets of interrogatories also containe.d the same language rn-garding Applicants making available for inspection and copying the documents " subject to the requests set forth below." How-ever, in each of those earlier sets of interrogatories CFUR had included separate requests for the production of documents, which documents CFUR had also asked Applicants to identify in separate interrogatories. Thus, Applicants reasonably believed that CFUR distinguished, as it should, between identification of documents and requests to produce. In short, there were no specific " requests" for production of documents set forth by CFUR in its third set of interrogatories, and CFUR's failure 2/ Judicial interpretations of analogous provisions of the Federal Rules of Civil Procedure ("FRCP") serve as guidance for interpreting particular NRC rules of practice. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 581 (1978). In this instance, 10 C.F.R.

$2.741 is analogous to FRCP 34.

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to do so cannot be corrected by a motion to compel the pro-duction of documents for which proper requests to produce have not been submitted to.the Applicants.

III. OBJECTIONS TO SPECIFIC INTERROGATORIES A. Interrogatories 7 through 12.

CFUR objects to Applicants' responses to inter-rogatories 7 through 12 as being "wholy [ sic] inadequate."

Specifically CFUR argues that Applicants ' did not answer those interrogatories separately and did not answer "many of the inquiries" in those interrogatories. Applicants submit that their answers were proper and responsive to each of Interrogatories 7 through 12.

To_tegin with, Applicants provided separate re-sponses to each of_CFUR's interrogatories. In response to Interrogatories 8, 10 and 11, Applicants referred to the answer to Interrogatory 7. It is proper to refer to answers to previous interrogatories in a particular response where the reference readily permits evaluation of the response for adequacy, particularly where the objecting party has itself used that technique (see CFUR's May 8, 1981 Supple-ment to Answers to Applicants' First Set of Interrogatories).

See 4A Moore's Federal Practice T33.25[1], p.33-130, n.9.,

and cases cited therein. Applicants' answers to these in-terrogatories are sufficient in that they are readily seen to be adequate and responsive.

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I With regard to Interrogatories 7 and 10, CFUR con-tends that Applicants should have responded simply "yes",

"no" or "do not know" to the questions as to whether there ar3 "any inconsistencies" between Applicants' computer codes and the Semiscale (Interrogatory 7) and LOFT (Interrogatory 10) small break test series. Applicants' response to those inter-rogatories is obviously in the affirmative, although Applicants provide additional information for clarification. Specifically, Applicants note that the subject computer codes conservatively predict the results of the LOFT and Semiscale small break test series, and a report on the differences between the predicted result of the codes and the actual results of the tests is to be transmitted to the NRC by the Westinghouse Owners Group.

Applicants' answer to these interrogatories is adequate and responsive. ,

CFUR also argues that Applicants should provide " full and complete" answers to Interrogatories 8, 9, 11 and 12 as appropriate depending on whether Applicants ' answers to Inter-rogatories 7 and 10 are in the affirmative (answer Interrog-atories 8 and 11) or negative (answer Interrogatories 9 and 12). As explained above, Applicants' responses to Interrog-atories 7 and 10 are in the affirmative. Thus, responses to Interrogatories 9 and 12 are not necessary and Applicants properly answered those interrogatories as "not applicable."

Applicants responded to Ins.errogatories 8 and 11, which seek specific information concerning the " inconsistencies" between  !

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1 the code predictions and the Semiscale and LOFT small break test results by referring to the response to Interrogatory 7, where it is explained that a report on that subject is to be submitted to the NRC. Since that report should provide the .

'nformation i requested in Interrogatories 8 and 11, Applicants ,

will supplement their responses when the requested information becomes available. Accordingly, Applicants' responses to Interrogatories 8, 9, 11 and 12 are proper and responsive and CFUR's objections should*not be sustained.

B. Interrogatories 19 and 20.

CFUR objects to Applicants' answers to Interroga-tories 19 and 20 on several grounds, each of which is without merit and CFUR's motion to compel with respect to these in-terrogatories should be denied.

First, CFUR argues that the Applicants should iden-tify and produce all documents " inquired about" in Interroga-tories 19 and 20. As Applicants' answer to Interrogatory 19 clearly indicates, to the extent that interrogatory is rele-vant to Contention 3, Applicants are not aware of any documents which fall within the scope of that request for identification of documents. Thus, Applicants' answer to Interrogatory 19 is completely responsive, as is the response to Interrogatory 20

("not applicable"), which seeks information only if there are any documents which fall within the scope of Interrogatory 19.

As for CFUR's argument for producing the documents requested in Interrogatories 19 and 20, since there are no documents to be 1

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identified, that argument is meaningless. Even if there were such documents Applicants need not provide for inspection and copying documents which CFUR merely requests be identified.

See Section II, supra.

CFUR further argues that Applicants have failed to answer Interrogatory 19 with respect to documents pertin-ent to Interrogatories 2, 3, 5, 6, 8, 9, 11 and 12. Inter-rogatory 19 asks whether there are any other docu:ents (not previously identified) which concern the consistency or in-consistency between the Applicants ' computer codes and the "i; quired about" categories of test series, experiments and NRC Staff codes. Applicants' response to Interrogatory 19 addresses each such test series (" inquired about" in Inter-rogatories 1, 4, 7 and 10) and NRC Staff codes (" inquired about" in Interrogatories 13 and 16). There were no inter-rogatories addressed to other " experiments." CFUR's argument is puzzling in that Interrogatories 2, 3, 5, 6, 8, 9, 11 and 12 are merely four sets of follow-up questions to Interroga-tories 1, 4, 7 and 10, and concern the same test series ad-dressed in Interrogatories 1, 4, 7 and 10. Thus Applicants' answer to Interrogatory 19 does address each test series, experiment and NRC Staff code which CFUR has " inquired about." Accordingly, CFUR's objection is without merit.

Finally, CFUR also asserts that insofar as Appli-cants' response to Interrogatory 19 concerns Interrogatories

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7, 10, 13 and 15, that response " bears heavily on Applicants' qualifications to receive an operating license." This. state-l l ment does not raise any further objections to Applicants' answer to Interrogatory 19 and thus requires no response from Applicants.

For the foregoing reasons, Applicants urge the Board to deny in its entirety CFUR's motion to compel responsive answers to its third set of interrogatories.

Respect #ul submitted, I i NicholaW S4' Reynolds

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William A. Horin DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202)857-9817 Counsel for Applicants June 3, 1981 l

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

) i TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 CO MP AN Y , . _e t _al . ) 50-446

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

CERTIFICATE OF SERVICE.

I hereby certify that copies of the foregoing

" Applicants' Answer to CFUR's Motion to Compel Responsive Answers to CFUR's Third Set of Interrogatories" in the above captioned matter were served upcn the following per-sons by deposit in the United States mail, first class pos-tage prepaid this 3rd day of June, 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 Commission 16801 Washington, D.C. 20555 Dr. Richard Cole , Member. David J. Preister, Esq.

Atomic Safety and Licensing Assistant Attorney General Board Environmental Protection U.S. Nuclear Regulatory Division Commiss ion P.O. Box 12548 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 L

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Arch C.:McColl, III, Esq.

Mr. Dwight H. Moore, Esq.

701' Commerce Street West Texas Legal Services Suite 302- 100 Main Street (Lawyers Dallas, Texas- 75202 Building)

Fort Worth, Texas 76102 Jeffery L.. Hart, Esq.

-40211Prescott-Avenue Mr. Chase R. Stephens Dallas, Texas 75219 Docketing & Service Branch U.S. Nuclear Regulatory Mrs. Juanita Ellis Commission President, CASE Washington, D.C. 20555 1426 South Polk Street Dallas,-Texas 75224'

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

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