ML20004F764
| ML20004F764 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 06/12/1981 |
| From: | Pollock M COMMITTEE TO BRIDGE THE GAP, POLLOCK, M. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8106220299 | |
| Download: ML20004F764 (37) | |
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- In *Ao Matter of )
) Docket:lo. 50-142 THE P.m a TS OF THE U';rERSITY )
CF CALIK PJ;IA ) (Proposed Renewal of
) Facility License (UCLA Research Reactor) ) lIu:aber R-71)
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MOTICN To CCIIPEL FURTFER xis.JERS FRC:? APPLICXiT TO I;TER'/E: CR'S SKCt;D SET OF EiTEPS.CGATORIES:
X!D RESPC!!SE TO APPLICA:!T'S PCTIO:1 WR A PRCTETTE CRDER Dated: June L2,1981
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TABLE OF CONTEITS I. Pre 14'4ney Statement II. 3ackground III. Discussion ,
fl. Items to .thich CM Requests an Order Compening Further Answers A. Items for '.thich Applicant Has :fot Requested a Protective OMer
- 3. Items for Which Applicant Has Requested a Protective OMer V. Opposition to Applicant's !!otion for Limitation or
!qimination of Future Discovery VI. Conclusion e
i-I. PRELIMINARY STAi>TW Intervonor hereby moves the Atomic Safety and Licensing 3oard to compel further answers by Applicant to certain of Intervonor's Second Set of Interro6atories. Intervenor hereby concurrently opposes Applicant's Motion far a Protective Order, dated May 28,1981, as to objections to answering certain of said Interrogatories. Furthermore, Intervonor hereby opposes those pertions of Applicant's Fotion proposing to limit documents to be produced in the procesiing to those offerai to date by Applicant and additionally proposing to sutstantially limit the number of folloe-up interrogatories. Fin, *1y, the Boari is requested to adjust the discovery schedult so as to accom W ate the situation attendant to Applicant's Protective Order Motion and Intervonor's current Fotion to Con.p-1 ,,
II. 3ACKCRCUND On September 25, 1980, the Atomic Safety and Licensin6 3 card granted the Committee to 3 rid 6e the Gap (C3G) intervener status and discovery rights as to four contentions admitted at that time as issues in the relicensing proceedin63. On Cetober 20, Intervenor submittai its First Set of Interrogatories. Applicant's answers were served en November 25 Intervener found the answers to be incomplete, non-responsive, and evasive, and 7.herefore moved the 3 card to ecmpel further answers to certain of those Interrogatories. *he 3oard granted said Fotion on December 22, 1980.
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On January 22, 1981, Applicant made Turther Answers to said Interrogatories, answers which Intervenor found as fully inadequate as the previous answers. In particular, information as to reactor usade which Applicant, in response te CBC's Intwrrogatories, Fad denied possessing, was found to have been submitted some acnths earlier by Applicant to NRC Staff. Therefore, Intervenor submitted a Supplemental Motion to Compel, which was granted by the Board on March 10.
When Applicant indicatei in a May 1 letter that, despi*a the Board Order of March 10, no furt.her answers would be forthcoming, Intervenor soved the Board for a Third Orier and for sanctions. On May 29 the Board granted the Third Motion to Compel ard directed Applicant to show cause within 10 days cf receipt of the Order why a sanction should not be imposed under 10 GR 2.707 and why its ccensel should not be cited under 10 GR 2.713 for refusal to comply with a 3oard direction.
Intervener submitted its Secced Set of Interro6atories on April 20, 1981. Unlike its First Set, which went enly to Contention II, the Secord Set went to the twenty (20) contentions that had been admittei by that date ani the roughly one hundrei ard twenty (120) subparts of those ccmtentions.
Applicant served itJ responses to those Interreptories on er abcut i
May 21,1960, having requested ani receiving a brief extensien of ti:ne in which to resperd.
Over half of the Interro6atories submitted by C3G in i+4 Second Set wero either objected to by Applicant, not answered at all, or answered in a fashien Intervencr views as evasive, non-respcesive, er incomplete.
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3 A week after sorrin6 its response to the Interrogatories, Set Two, Applicant served its Motion for a Protective Order as to certain of those Interrogatories to which it had objected. The F4 tion in 4ddition requested a sharp cur +milmant of dh. y (practically speaking, virtually ording it) by restricting document production for the entire procearii g to the 41 items it has offered to date for inspection and copyin6 ard by limiting follow-up interrogatories (alret@ served by Intervenor) to a total of 50 questions, determined by ecunting each subpart as an indtvidual quostion.
3ecause Applicant filed its Potion for a Protective Order a week Af tar its Interro6atory Answers, Intervenor's F4 tion to Compel Further Answers to those interro6atories and its Response to the Protective Ord m F4 tion were due a week apart, absent agreement by the parties otherwise.
By phone conversation June 2, confirmed by letteir' on June 3, the parties agrt.ed to having Intervenor combine its Potion to Compel and its Response to the Protective Order Motion into one filing to be served on June 12.
What follows, thus, is a combination of the two.
III. DISCUSSICN l
Discovery in NRC proceedings is given broad and liberal scope.
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I In general, parties "my obtain discovery rs6arding any atter, not privileged.
which is relevant to the . subject : natter involved in the proceeding, whether
- it relates to the chim or defense of the party seeking dicovery or to the claim e,r defense of any other party, includin6 the existence, description, nature, custody. conditien, and location of any tocks.
l l documents, or othe tangible things ard the identity ard location of persons having knowledge of any discoveable ::atter." 10 CF3 2.740(b)(1).
4 Furthermore. "it is not ground for objection that the inft stion sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible er.dence."
The scope cf discovery under the Commissien's Rules of Practice is similar to discovery urder tre Federal Rules of Civ.l Procedure. Pacific Cas and Electric Company (Stanislaus Nuclear Project, Unit 1). L3P-78-20, 7 NRC 1038, 1040 (1978). Part of the purpose of discovery in such proceedir6s is to ensure that ;arties have access to the facts they need for proper litigatien of the issues, and to reduce the possibility of surprise at hearing: "Futual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To trd. erd, either party may compel the other to disgorge whatever facts he FAs in his possession. The depcsition-di.s.covery procedure simply advances the stage at which the disclosura can be compelled frca the timu of trial to the period preceding it, thus reducing the possibility of surprise."
Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451 (1947).
Interrogatories are to be answered separately and fully in writing under oath ce affirmation, unless objected to, in which case the reasons for objection shall be stated in lieu of an answer. 10 CFR 2.740b(b).
j An evasive or incomplete answer er response is to be treated as a failure to answer er respord. 10 CFR 2.740(f).
Intervenor contends that numerous questions in its Secend 3et of l
Interrogatories have not been answered fully and completely, and that other answers are evasive, constituting a failure to respond.
Intervance will deal with said inadequate answers in two broad categories:
those for whis a protective orter has been sou6h t by Applicant, and those for which no protective crder has been requested. The latter cate6ary will be addressed first, as 10 CFR 2.740(f) makes clear that failure to answer or respond to an interro6atory "shall not be excused on the ground that the discovery sought is objectionable unless the person or party failing to answer or respond has applied for a protective crder pursuantto10CFR2.740(c)."
Intervenor will, af ter detailing inadequate answers for which no protection has been sought by Applicant and for which an Order compellin6 further answers is sou6ht by Intervenor, detail these interro6ateries for which a Protective Order has been requested, grant of which Intervenor opposes and a Compelling Order Intervenor requests. Intervenor does not oppose all itene for which Applicant has requested protection from answerin6 However, those which Intervencr dces oppcse are , interrogatories for which Applicant has failed to meet its burden of showing why discovery should be denied or are so generally applied as to fail to meet the standards of specificity for such objections. Under liberal discovery rules, those opposing discovery are required to carry a heavy burden of showing why discovery should be denied. 31ankenshit v. Fearst Core. CA CAL 1975 519 FS 967. Objections to interrogatories nust be specific and supported by detailed explanation as to why the specific interro6atcry is objectionable.
In re Folding Carten Antitrust Litigation EC Ill. 1979 83 FRD 260. l l
Intervence will demonstrate that Applicant has failed to meet such standards, and will in conclusien, af ter dealing with Applicant's proposal to prenaturely end discovery for all intents and purposes, propose a 3carti ruling that would, in Intervenor's view, ensure that discovery is conducted 1
d in such a way as to produce an adequate record on which to bass an effective judgment on the licensing application before the 3 card.
CBC views its role in these proceedings as bringing to the Board's attention inforsation useful in making such a judgment. C3G notes that a wide range of issues have been admitted as contentions in these proce6 dings and that, unlike licensing hearings prior to constructicn er operation, the facility in quest $on here has a twenty-year operating h. story of which many aspects are of probable relevance to the m tters before the 3 card. Thus, with twenty years of operating history and records and a wide range of admitted contentions, with their attendant subparts, the pool of discoverable' evidence of potential importance at hearing is very large. '
In addition, although the amount of discoverable evidence, for the reasons stated above, my be very large, the amount of information to be presented at hearing by the other parties 'Is likely to bo considerably less detailed than what is normily produced by Applicants and Staff at licensing hearings. UCIA's Applicatien is but ene volume compared to the many volumes of other facilities in licensing proceedingss furtherncre Intervencr has raised numerous questions abcut the adequacy of that Application. Staff has to date submitted no written interrogatcries to Applicant during the current discovery period, and to Intervencr's knowledge only subnitted a total of four pages of written questions about the Applicaticri prior to this time.
'"hus Intervenor has a substantial role to play, if so per=itted, in gathering, analyzing, and entering before the 3 card evidence that may be of substantial usefulness in the Board arriving at an infer:od judg ent about the matters before it. Intervener, however, cannot perform that function if other parties do not meet their disecvery obligations.
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And it appears to Intervenor that the failure of Applicant to meet j its discovery obligations evidenced in the protiscted struggle to get adoquate answers as to the First Set of Interrogatories has carried over, .with little change, to its answers to the Second Set.
Therefore, while Intervencr is reluctant to burden the 3 card with another tedious discovery dispute-snd it has chosen to let slide a large number of interrogatory answers it views as iradequate but which it has chosen not to burden the 3oard, the other parties, or itself with trying to compel answers to--Intervencr sees no way that an adequate decisional record can otherwise be obtained. Without answers to these questions, Intervenor's case will be severely constrained and the evidence possible to be placed before the 3oard for its consideration will be unduly limited.
It seems to Intervenor that Applicant has spent more time and energy evading Interrogatories than in answering them. .The pLttern of resisting disclosure evident in Applicant's performance regarding the First Set of Interrogatades has continued into the Second Set. Intervenor respectfully submits that without Board interventien at this juncture, this pattern of I
not cecperating fully in responding to discovezf requests will centinue in the future and the quantity anci quality of potential evidence to be eventually placei befers the 3cazd $ay be unduly limited. As the 3 card
,i said in its March 10, 1981, Orders This Paard is charged with the respcnsibility cf obtaining a complete I record on which to base a decisien. We will not allow this duty to '
be ecmpromised, or the procesiing to be further delayed, by gamesanship. Failure of the parties to fully cocperate in responding i to discovery requests in the future 9ay well result in the imposition cf sanctions by the 3 card under 10 CFR 2.707.
Intervenor has no desire to engage in protractoi disecverf disputes with Applicant. All Intervenor wants is the information necessary for it to
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perform a useful role at hearing.
IV. _ ITEMI TO WHICH CBG FSQUESTS AN CRIER CC.9EI. LING FLTr!GR ANSWERS _
A. Items M Which Anlicant [11 E21 recuested a, Protective h Intervenor found a very large portion of Applicant's answers to the Second Set of Interro6atories evasive, incomplete, and non-responsive.
To detail them all here would be an unreasonable burden on all parties, so Intervenor has chosen to focus on a small fraction of the questions which it believes were not adequately answerod. This should in no way be seen as an indication that Intervenor views the answers it did not request a Compelling Order en as adequate er respcnsive. It should nore ccrrectl)--
be seen as reflecting the limitwi resources and patience of Intervencr, esp 6cially the latter, coming as this filing does after three previous Motions to Compel. -
1 There are severa'. min kinds of inadequate answers outlined in what follows. Some questions were not answered at all, just skipped J
over without any respense whatsoever. Some questicns had part of a question answered, at least minimally, but another ; art of the question was ignored. Some answers- referred to equally unrespcnsive answers to other Inter 06atories. Yany responses gave no infor::ation as to the question, but referred the reader to an entire class of documents (for exarple, 20 years of operating legs) without so much as a volume number ar.d page number. Some ansvers vara circular, defining a term in a quotation by citing the quotatien as the answer. Sone didn't provide an answer, merely stat-i "Not Applicable." when the question was clearly applica'cl . Some said Applicant's staff .%d no * .culed c e,6 l cr the answer was unknown, or that staff didn't have the resources to l do a study to find out, when it was quite apparent that scme UCIA staff
e must have sose personal knowledge that could answer the question at least in part. Repeatedly Applicant failed to give what information it did have, referring instead to a class of documents or asserting it didn't have the resources to do an exhaustive study, when some information must have been in Applicant's possession, whether complete ce not.
And repeatedly Applicant appeared to play werd games, claining to not understand terms it was hard to believe its staffpecple did not recognize and cottprehend.
The discovery process to date with Applicant has been characterized by unceasin6 resistance to discovery, evasive and unresponsive answers, and 6amesmanship as to how much work Intervenor can be forced to do in order to get minial bLts of information, minute fractions of what it asked and of what the Board has a right to see. When a party resists discovery it can be presumed that the withheld material does not support its case.
But presumptions are not of much use at hearin6, 'only admissible evidence, and Applicant seems committed, despite the three Board Orders regarding cooperation with discovery, to obstructing discovery wherever possible.
Since Applicant has not requested a Protective Order en the Interre6ateries that follow, they cannot be objected to. The only question is whether they were fully, respensively, and truthfuIly answered. As will be demonstrated
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below, a great many of the answers are far less than adequate.
Intervenor hereby respectfully requests that the 3cari issue an Order compameg further answers to the following Interrc6atorie se
Contention I 24e. Unresponsive. Intervenor firds it hard to believe that none of Applicant's Staff knows or has information about the original purpose of any of these requirements.
261 Unresponsive. Doesn't say what is considered " negligible":
what the largest core damage and fission product release possible is.
26e- Doesn't answer. Says "not applicable": clearly is applicables no showir6 to the cottrary.
27e Evasien. The referenced page and paragaph are the precise statement Intervenor asked the question about. Purely circular answer.
28k Evasive ci.W. Question asks fcr all stwiles, articles, etc.
which support the statement in the 1980 Applications answer is the 1980 Application. Should either state directly that they know of no supporting studies, articles, etc. aside from the Application or identify those other studies, etc.
Contentien _II_
4 Answer doesn't answer the questien.
4a Says not applicable when it ist no a .swer provided.
J,6, No protective crder requested for this question, although answer to 6
which reader is referred is objected to. Cne cannot answer an interrogatory % reference to an equally evasive c: unresponsive answer. See ciscussion of XVIII.3-7. ,
1 9a,b Not answered at an. No response !
41 Unresponsive and evasive. Question asked specifically for table updated using sane categcries UCLA used when it nade table, including "Conmercial." UC'A's substitution of the evasive phrase "Extranural Users" violates the questien and the interrc6atcry instructions.
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42 No response given at alls question skipped. l 1
M No response giver a: ans question skipped.
50,a.b Substitutes the evasive phrase " extramural users" for the ters asked of it in the question and definsi in the introduction.
51.a Same as above.
Contention III 20 Skipped completely no response given.
38 Date of meetin6(s) not given.
43d No answer given at alla question skipped.
55-57, Response is exact same in each case, referring Intervenor to 59.62.
63 operating logs and visitors logs, without volu:se number, page number, date, or other identifying features some members of Applicant's staff must have personal knowledge if they could answer 54, they are likely to be able to provide at least.some info to at least one of these q.uestions 62a-d No answers given at all.
63a No answer at all.
68 Applicant doesn't answer part of question: " detail all facts which support such a contention."
. Contentien IV 9a Refers to an equa n y evasive answer. Simple -
question as to why no report to the NRC, Intervencr is instead referred to 5 documents, without volume or page number, that are collectively thousands of pages long. Some member of Applicant's s+4 f could answer question 9, thus has some info re 9a.
13a c Skipped no answers given. Reference to Interregatery 3 is equally evasive: no answer :serely a reference to documents eithout page number and volume
f 15a-o tro t answered at alla skippei over. P..ference to equally evasive answer.
17 Reference to equally unresponsive answer.
17a With several key staffpeople at !GL havin6 been there for far in excess of a decade, answer of ignorance is difficult to believe.
18 tio details givent reference to Int. 3 equally unresponsive.
These interro6atories evidence a pattern of evasion.
22 Evasive and unresponsive implies they have knowledge but no recoris likely some staffperson(s) have personal knowledge, can provide at least some information.
24a, Staffpeople who were at facility during that period are still there todays it is unlikely that no staffpersen has any informtion about the referenced statement.
Contention V 13-18 UCLA mkes no showing as to what is assertedly "va6uely described" about the interrogatories: they are, to the contrary, quite specifiot some inforation relevant to the questions asked must be in possession of Applicant, or else they are running the reacter with mssive unknowns about highly dangerous safety matters.
44 This question calls for infornation in the possession of NEL Director Cattong he sust have the informtion because it was he who made the cited statenent. Answer is evasive and unresponsive.
Contention VI Sc Evasive. Statament says nothing about the data nor its interpretation.
An empty ar;swer. .
11a question skipped no answer.
l 21a,b question skipped no answer 25 question skipped no answer 36c Intervenor asked a simple questions obviously in personal ' cowled68 of some staffperson, for NEL staff was involved in determining staff times reference to documents is without title of document, date, page, as required by interro6atory intro.
40,a evasive info in staffpeople's knowledge, but not provided referred to a file without title of particular docunent nor pa6e.
40c only answers for partitions, not for walls, ceilin6s and floors.
4Cd doesn't answer why it need not be considered.
41b claims not applicable hen it ist no centrary showin6 47a the fact that a calculation has not been done does not mean it cannot readily be done some information is likely to be available to at least partly answer the question 52 a,b. evasion as to other liquid effluents; id ~they can answer for secorA ry, they can answer for other effluents; reference to annual reports without citation to year is unresponsive staff likely has info beyond what is in annual reports, because they write the annual repcrts.
Contentien VII 5,6.7 unresponsive: if no precise definitions, provide such general definitions as can and the ter :s used; refers to general english or general nuclear engineerin6 usage, tut doesn't tell us what that ist evasive Intervenor needs to know Applicant's operating terms to understand and request relevant docunents.
9c skipped no answer at all l
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Contention VIII
$a unresponsive refers to previous answer which doesn't provide the information requested.
7d,e-h sose inforntion must be available by which the question can be answered in parts it is very hard to believe that UCIA has vtrtually no informtion about aximum fissica product inventory for 1*.s reactor.
11,12 evasive and unres;.onsiver phrase about technical judgment provides no information.
14, Doesn'tanswerquestion(yes/no.)
18,a-h Intervenor finds it astonishing that Applicant would have no infor mtion with which to provide even a partial answer 'A this most central of question about its cwn reactor-the maximum fission product inventory. Some information must be in it; possession.
19b,e Same as above. ,,
30 unresIxmsive, evasives phrase about technical judgment WJes no informtion.
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- 3. Itema .f_gg which Acelicant han reouested g P otective Ctder Applicant has requested a Protective Order to protect itself from being required to answ(r certain Interrogatories to which it objects.
Many of ihese objections Intervenor finds to be without foundations furthermore Applicant has not made the requ . site shcwing, in Intervencr's view, to qualify for said Protective Order. A discussion of the sta.M to be met for qualifying for a Protectivi Order in discovery follows.
The procedures for resc1ving discovery disputes set forth in the Code of Federal liegulations, Title X, and in the Federal Rules of Civil Procaiure provide a system of ob$acticns, protective orders and motions to compel by which the infcrmation necessary to notify the parties of the dispute and necessary to allow the arbiter to resolve the dispute in an informed fashion is placei before the Board. This system requires that a party moving for a protective crder in support of its objections to interrogatories must establish " good cause" for the granting of the protective order. 10 CFR 2.740 (c). General objecticns do not establish good cause and will not support the issuance of a protect 1/e order.
Pennsylvania Power & I.i.tht Co. and Alledenv Electric Ccererstive Inc.
12 NRC 317 (1980).
1 As will be demonstrated in the folicwing recitation, the Applicant I has repeatedly based its protection request on general =axims and ncn-specific recitaticus of legal rote. Such answers have teen found insufficient in NRC proceedings /5caton_ Edisen Co.1 NRC 579 (1c7517 and catch-all language such as " vague, cypressive and heiensene" has been found to be virtually meaningless by other federal ecurts. In re Foldins Car.on
7 Antitrast Litimation 83 FRD 260, (D.C. ILL. 1979). Consistent with that zuling Intervonor hereby requests that the Board at each such general objection, where specific showing of relevance to the interro6atory in question is not made, treat such general largua6e as a waiver of the objection.
Althou6h in many instances the Applicant has not even nade a showird sufficient to support the protective request it is necessarf in response to thces other instances to set forth the applicable standards by which such a request should be jud6eds Relevaner 10 CPR 2.740(b) states that relevancy is measursi by whether information appears reasonably calculated to lead to the discover / cf namissible evidence. Relevancy is satisfied when it relates to the claim or defense of any other party in addition to the claims or defenses of the party seeking discovery. Pacific Cas and Electric Coreany 7 NRC 1038 (1978).
While the requesting pa.:ty has the burden of showing minimal relevance
[ Jupiter Painting Centracting Company. Inc. v. U.S., 87 FRD 593 (D.C.
E.D. Pa.1980)J the objecting party has the buzden of clarifying and explainin6 its objections ani providir4 sup;crt therefer. Roesberr Core, v Johns Nnville 85 FRD 292 (D.C. Pa 1980). Unless the objecting party can clearly show that the evidence sou6h t can have na possible bearing on the issue the test fer relevancy will be easily satisfied. Commenwealth 3disen Co. (Zion Station Units 1 & 2) 6 AEC 2h0 (1979).
U l .due Bui-len Applicant has made a general objection to the interrogatories as burdensome and has made the same objection to several specific objections.
2e number of detail of the questions a.d the fact that ansu d s them
will be turdensome is not in itself reasons for refusing discoverf which is otherwise appropriate. In re Folding Carton stora, Roesberg v Johns fev.111.9. supra. To evaluate the burden of interrogatories the 3oard should balance the interests of the parties in obtaining the information with the burden involved in securing the information. Ia striking this balance relevancy carries more weight than mere fact of burden. 3cston Edisen Co. supra, 10 CFR 2.740 indicates that to qualify for a protective order a showing of undue burden is required. All interrogatorf answers involve some burden all are burdensome in some fashion. The question at hand is whether the burden is an undue burden if relevant, significant i
burdens nay be required.
Extensive Studv Necessarr Where Applicant complains that extensive study ani analysis is needed, which it doesn't have the resources to undertake, said objection as used in response to the Interrc6atories, Set Two, is generally improper.
As stated in Pennsv1vania Pcwer. suprs: "Where a party being interrogated ieuld have to 6ather such informtion before trial in any event the only burden i= posed is to advance that compilation date to an earlier (time)." (pg. 334). Further, the ecurt in Fleur Mills of America Inc. v Pace, 75 m 676 3.C. E.cckl.1977), held that "a party cannot refuse to answer
! an inte w tory simply because he would have to ocnsult books er documents I in crder to prepare a response."
Production cf Rece:ds in Lieu of Answer l
Where App Mcant states it exercises its cption to answer pursuant j to Rule 33(c) by producing business records in lieu of a direct answer,
Applicant has failed to follow the Rule in that it has failed to specify the record.s sufficiently and uses the offer of receris as evasion of responsibility to pro ~ide additional information not in those, records.
In connection with the option of producing records, Applicant asserted on page 6:20- 21 of its protective order motion that "intervenor is in the boet position to search for that inforr.ation which it finds interesting."
This is incorrect. A respendant may not impose- on the interrogating party a mas of roccrds as to which research is feasible only for one famO42-with the records. U_.S. v. (8.16 Acres of T.ard. 66 FRD 570, 573 (D.C. Ill.1975).
Specification of documents shall be in sufficient detail to permit the interrogatina party to locate and to identify, as readily as can ths party served, the records from which the answer may be ascertained, ard shall be produced in lieu of interrogatory answere only if the ht.Tien of deriving the answer is substantially the uma for the party serving the interrogatory as for the party served. F.R.C.P. 33(c).
Applicant has, however, offered in place of answers 20 volumes of legs, without reference to volume er page, in many respenses.
Furthermore. Applicant has apparently withheld information in the possessicn of its Staff, or of their personal knowledge, substituting instead reference to a broad class of unspecified documents which do not have all the informatien requested. Rule 33(c) cannot te usmi to shift the obligation of ascertaining information from one party to another.
The respondent nust identify which documents 4111 provide the infornation from which the answer ay be obtai .ed. Eudget Rent-A-Car of M.isscuri
- v. Her+s c m ., 55 fad 354 (W.D. F.iss. 1972).
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Privilene Applicant objects ta some interrc6atories on the ksis of privilege. Once again, blanket objections based en privile6e are insufficient to sustain a protective order. Ceneral Dvramics Corp. v.
Selb Manufacturing Co., 481 F. 21205 (C. A. Mo.1973) (cert, denied).
The party m:st set forth with encu6h particularlity to enable the Court to make an informed decision the nature of the material withheld and of the threat should it be revsaled. Kinov v. Mitchell. 67 FRD 1 (1975).
Re6a d "6 Applicant's assertion of privilege based on " invasion of privacy" of students, it ndst be de::enstrated that:
- 1) the infornation in question is of a type custo:arily held in confidence by its originator
) there is a rational tmsis for havir4 customarily held it in cerfidence
- 3) it has, in fact, been kept in confidences and s ec
- 4) it is not fourd in public sources, hsas ,
In+ervenor notes that the identity ard research projects of students associated with the UCIA reactor have been routinely published by UCIA in Annual Repcrts to the NRC, by location of their theses in public sections of libraries, ard phone numbers and a61resses of students published by the university. The " confidentiality" assertien does not neet the above four standa=is.
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MCPICN TO COMPEL ANSVEPS TO CERTADT INTERPCCATORIES FCR WHICH A PRUTECTIVE CSDER MAS EEET REQt."ESTED 3Y APPLICAL"O Intervenor hereby requests a compelling Order as to the following Interro6atories for which Applicant has requested protection from answering. Intervenor considers the objecticris iaptupat and the withheld information likely to lead to adnissible evidence.
So as to reduce the burden to both it and the 3 card, Intervenor hereby only requests a ce=pelling Order for a portion of the Interrogatories objected to by Applicant. Intervencr considers some of the unopposed objections to be merely attempts at resistir4 legitimate discovery, but will rephrase interro6atcries so as to attempt to meet objections and resubnit then for others Intervenor will attempt to obtain the necessary information throu6h other means.
Some, however, require in Intervenor's view assistance from the Boari in compelling answers from Applicant. Those interro6atories are identified below. Intervenor respectfully requests a compelling Order as to the following Interro6atries:
Contentien I_
18 Identity of potential witnesses is not privileged; identity of particular students doing research at the reactor is not ncr ally kept confidential by Applicant (it has in the past published sene of their names and projects in Annual Repcrts; ard is not irrelevant in that Applicant has requested a class 104 license, clainir4 in the Applict, tion quotation at issue in this contention that the reacter will be used fer l l
education of graduate students ard for their research projects.
Co-firmation cf thtt chb is ::nde very difficult withcut knculedge cf potential witnesses to those alleged facts.
4 28h Applicant relies heavily on the Sarax and Spert tests to demonstrate the safety of its facility. How can Applicant's assertion of safety due to those testn have validity if it says it does not know the similarities and differences between the Sport and 3orax reactors and the UCIA reactor and claims it doesn't have the resources to find cut? Applicant must have some infor: nation relevant to the question, short of hav94 to conduct a comprehensive analysis and study.
Contention II
$4 and 55 Applicant claims the siudents receivai educational ,
benefit from the paid employment for Uranium Vest and Emil Kalil. How can validity of said claim be checked without centacting these students to deter =ine precisely what the supposed educational activity was?
Identity of prospective witnesses is not privileged.
60 Applicant makes no showing that the burden is urbaly burdenseme as required by lo CFR 2.740(c): data on trends and levels of student research use is clasrly hi8hly relevant to the cententions if it was not unduly turdensome to produce charts far 1960-1968, it can't be urhaly burdensome to repcrt the data for 1968-1980.
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Contention III h.1 the norml location within the facility and the means by which a staffperson obtains access to key safety written procedures is cleely relevant to the Contenticn if the procedures are inaccessible the mna6erial contrcls we poors custodian of saici reccrds is relevant to document production request.
18,. Applicant claims unlicensed operators haven't run the reactor and that controls during tours are adequate: interrogatery is clearly relevant to contention, no specific showing of undue burden has been made, and not even partial inforation personally 'cown to Applicant's staff has been provided.
Contention IV .
20 What was not admitted as an issue in the hearings was whether Applicant's shipment precautions are adequate. .:Non-ccmpliance with regulations is clearly relevant to this contention, which was admitted, and is calculated to lead to potentially admissable evidence rega.riing the contention.
Centention V 11 Cler_rly relevant to questien of whether large reactivity insertions are possible at this reactor if facility staff doesn't 'cew the answer, or at least have some infernation as way of partial answer, then this constitutes an awesone admissien as to their inability to deternine whether a particular sample is dangarcuss objection does not specify what informtien is lacking, burden of proof thus not net.
?,o, h3,hC,h7,48,_and CO If Applicant cannot presently ansuer the questions without extensive studies which it doesn't have the rescurces to
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undertake, such information should not be permitted at hearing withcut showing of " good cause."
Contention VI 32-f1_The Board made no ruling about the sdnissibility of evidence related to the lasis for the c:ciginal shipment contention being admissible or not admissible regarding other contentions that were admitted.
This contention goes to the questicn of protection of the public from radiation in rega:ds to excessive exposures and poor radiation monitoring. The cause of the Applicant's alleged failure to detect 100,000 cya of Co-60 in an unrestricted area of its f acility, and questions as to whether Applicant was responsible for the con +2*= tion incident to begin with, and radiation protection measures and monitoring a notification efforts undertaken after being notified of the incident are all relevant to the admittei contention as to radiation exposures to the public through inadequate radiation control ard monitorir4 M if Applicant's radiation protection practices are inadequate at ene facility that may readily lead to admissible evidence as to la-radiation practices that make license of another facility unwise.
If indeed Applicant's control of Argen41 at one of its research reacters outside of I.cs Angeles has led to dangerous expcsures to the public.
then that raises significant questiens about its abilities to control Argen41 emissions at its CCIA reacter, which is a central issue here.
Contentien VII l
3A 8(e) and 15-The question is by no means vague, but very specific.
1 It asks which of a series of terns are used by Applicant and fcr definitions and related documents as to those terns. Intervencr does not ask Applicant to convert its experience into Intervencr's categories, but to tell Intervenor what are Applicant's categories.
6 Contention VIII f, Precisely the opposite of vagues specific conditions indicated:
Applicant has rade no showing as to what is vague in the questions to claim that Applicant doesn't know what its license permits but only the NRC Staff know raises serious questions about how Applicant's staff can be capable of obeying its licenses answer does not indicate that the licenso or tech specs prohibit any condition: " applicant's method of annual averaging" does not address question of license or tech spec limitation, and' practical matter... ' portion of answer does not go to question.
22(e), 23(c) and (d), and 24 If Applicant cannot answer the question, or provide a partial answer, without doing "extensives studies" which it "has neither the time, nor the personnel, ner the resources to conduct",
then how can it possibly make a shewing as to acceptability of dose rates in an accider.t? If you don't knew the maxinum radioactive ccre inventory, you can't predict in any fashion env nnental effects of accidents. Aplicant should ei+2er answer or be cens+xained from providing said answers at hearing absent a showing of ' good cause."
23, not vague, does not deal with general engineering W ciples but with properties of this particular reactor and its p rticular fuel to minimize fission product escape. The ansvar given does not infors Intervencr whether that is the sole infer::ation Applicant possesses or cnly part of its if it possesses other information, that shculd be
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H Applicant makes generic clais of vagueness but gives no suppcrt nor identify what is vagues questien is clears if Applicant doesn't have the rescurces to get the answer, that informatien should not be mAmissable at hearing absens a showing of good cause.
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Sect:aITY CCitrrr*IOi XX Interrogatories 1-46 Applicant has objected to all Interro6atories as to Qntention XI and has requested a Protective Orier for all said Interrogatories.
Wile Protective Orders na to security atters are common practice in NRC proceedings where a security contention has been admitted, the form of Protective Order requested by Applicant-not permitting the discovery in any fashion-has no tasis in law or practice.
Commission regulations centempIAte that sensitive information such as matters related to physical security may te turned over to interrencrs in the procaeding under appropriate protective crders.
10 CFR 2.790. Security plans are subject to discovery in Commission adjudicatory proceedings but cnly urAer certain conditions. AIA3-410, 5NRC1398(1977). Those conditions may be proper subject of a Protective Order, tut no such Protective Order hus been requested by Applicanu rather Applicant requests total protection from disclcsure of such information, and has done so without showing as to why such total protection is le6al cr proper. Security plans are sensitive documents, and informtien about security issues is likewise sensitive, but not " classified. "
Intervenor is cogni:: ant of the sensitive nature of the information l
being sought and would entertain discussion anong parties and the Board I as to a Protective Order that wculd adequntely protect the informaticn '
while ensdag that tne disecvery rights of Intervencr are protected l l
or the security conem of Intervenor adequately mM essed.
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4 Applicant also objects to the security interrogatories on the grounds that "this information is not relevant to the proceedir4."
No specific basis for this assertion is given with re6ards any specific interro6atory. However, Applicant bases its entire argument on the asse ction that the 3 card sly, at some time in the future rule en the NRC Staff Potion fcr Summarf Disposition as to Contention IX, and if ruled on favorably, the contention would no longer be in the preceeding.
Such a convoluted argument could, of course, te raised about any contention, for all are sabject to summr/ daposition motions discovery ceases to exist if it is denied on the basis that the m tter at issue to which disecvery is relevant may at some future time cease to be at issue. Furthermore, waiting until resolution of summry dispcsition motions would, by virtue of the discovery schedule in force for this proceeding, andate that no discovery at all would exist even were the summary motien denied, which Intervenor has ccnfidence will be the case, given the nature of the oppcsing facts in the atter.
In short, security atters are sensitive, but not classified.
They are subject to discovery in NP.C proceedings, ur:dar appropriate safe 6uards. Protective crders relative to security information are necessary to protect the sensitive in. formations but the form of protective order propcsed by Applicant, which would elidnate d.iscovery fcr all intents arti purposes en security atters adnitted as cententions in this proceeding, is an irproper form of protection that does not properly N12nce discovery rights with the need to protect sensitive informtion.
The two rights must meet somewhere Applicant's proposal throws out ene set of the rights entire.,
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V. CPPCSITICN TO APPLICA5"r'S MCTION FOR LIMITATIW CR ELIMINATICN CF FUTJRE DISCCVERY A. Intrvduction Applicant, in its Motion for a Protective Order, makes two requests that would ammmt to a virtual elimination of future discovery.
Applicant requests that it not be required to producw any documents besides those 41 itsas it has offered in " Attachment A" of its Answers to the Secord Set of Interro6mteries. And Applicant requests that follow-up Interro6atories be limited to a total of 50 questions, eacn subpart counting as a separate question. Intervencr suggests that these proposals represent an attempt by Applicant to prevent disclosure of information potenHally d==ging to its case. The only result of such a drastic limitation on discovery can be a diminutica in the quality arvi quantity of admissible evidence available for Board review in comin6 to its rulings.
- 3. The "renosed Limitation cn Documents to be Produced Ihis proposal is completely contrary to normal discovery rules.
Applicant is attempting to be perdtted to produce for review and copying only those documents which it wishes to produce. It attempts to obtain the equivalent of a protective order on all documents C3G has requeste d to date that do not appear on Applicant's list of " offered documen+a" i
without follcwing the required procedure of objecti 6 to each individually l l
and specifying valid reason for production being denisi. It also attemp+4 to obtain the equivalent of a " blank check" protective erder for all documents C3G may request in the future. "short-cutting" the requirsi procedure of snowing valid reason fer each item not been produced. The proposal amounts to a kind of Mer restraint en future docunent production requests, I
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without regard to the specifics of the discoverable s torial requested.
It is an extrsozdinarily speculative proposal, assuming without any basis I that no document requested for production, aside from those Applicant offers for production, can have any possible evidentiary value or lead to any admissible evidence. Furthermore, Applicant has in now way met its burdan of showin6 why it should be protected from these future discovery requests and current discovery .mues*a, nor can it possibly -
so demonstrate, at least with r*6ards .the for:ner, absent some kind of foolproof " crystal ball" that can give assurance that no possible future request for production of documents can relate to relevant information useful at hearing. A more detailed discussion of Applicant's burden regardir4 such a request is fourd in Section C below, which applies equally to the document limitation proposal.
C. The Provosed Limitation on Follow-Up Interresatories On March 10,1981, the 3oard admitted sixteen (16) contentions, bringir4 to a total of twenty (20) the cententions admitted to date in this proceeding. Each of these 20 contentions FAs an average of 6 subparts each for a total of censiderably more than one hrnd-M separate cognizable issues in this proceeding. It io eminently reascnable that Intervenor in discharge of its role in this proceeding and in preption cf its case would have ques'tions to ask of Applicant concernin6 its twenty years of operation as they relate to the admitted contentiens, s
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In fact, an Appeals Board, ruling on rararkably sinilar circumstances held that "2700" interro6atories were not objectionable circumstances.
Pennsvivania Power and Lizht Co and A11eaheny Elec.. Coeverative. Inc.
12 NRC 317 (1980). In that case a party claimed that 2700 separate questions (Applicant here has throu6h its own method of counting charged Intervenor with ar, kin 6 2280) were " extraordinarily burdensome, cypressive, and utterly pointless." In denying the requested protective'erder and upholding the Motion to Compel, the Scard found that a mere statement cf numbers of subparts to questions was meanin61ess without consideration of the number ani seriousness of the contentions. They found that there si6ht, be 10 subjects per contention and 12 separate contentions. Furthermore, a substantive count of the questions numbered only about 150.
Intervence in the UCLA case has 20 major cententions and rou6hly 120 subcontentions. Intervenor asked its interro6ateries in the following fashien:
- 1. Question?
- a. What facts support the anuwer to the above question?
- b. What studies, reports, calculations, references ani other reports, document the answers above?
- d. Who is the custodian of said receris?
- e. Will Applicant produce said reccrds absent a for:nal Motion to Produce?
Applicant counts the above Interrogatory as 5 Interregatories. And preposes to limit follow-up Interregatories to 50, using the same nethod of calculation.
The point here is not to play nunbers ganes but to recogni::e that these proceedings and therefore the discovery process is extrenely broad in ita secpe of issues and time. Applicant's assertions that the Interregatories as a whole are burtiensene and should be linited nerely
begs the issue and does not properly relate to the fact that the NRC rules give them the right and procedure to not answer those questions that are legitimate)y objectionable.
Applicant has numerous remedies other than the pre-emptive proposal it has made. Applican* -ttculated to a discover / schedule at the pre-hearing conference and prope . limit Interrogatories should rightly have been raised thers. Certainly it is inappropriate to raise the request for limitation as to numbers of follow-up interrogatories a party may serve so late as to necessitate parties sorting follcw-up interrogatories prior to the Board's ruling on the protective order motion. If subsequent interrogatories are properly objectionable, the time to object ard request protection from the Board is when the objection is real, not hypothetical.
Furthermore, Applicant has done nothirg in the course of this proceeding to reduce its own burden or that of Intervencr or the Board as to discovery workload. Intervencr prepared i+4 interrogatories with thw kncwledge that its first set of Interrogatories on Contentien II, a relatively clear area of issues, had never been adeq'uately answered.
Over the preceding six months ard through three motions to cot:pel the Applicant has managed to avoid and evade complete disclesure to Interrenor. In the face of this attitude by the Applicant Interrener has been forced to be very meticulous in the :nanner in which it asks its questions and in its attempts to be sure that every avenue of objecticrt is anticipated. Naturally, this takes time and space.
To illustrate this phenomenon ard the fact that there is no justification
, in this case for setting artificial limits on disecverf, the Applicant has succeedesi in adequately and responsively answering only a ver/
small portion of the interrogatories in the Secord Set.
In sua, Intervenor has uked reasonable questiens desi6ned to illicit relevant infor: nation from the Applicant. Such quantities of interrogatories have been r sid in prior proceedings. 2e real issue is the quality of the questions, the seriousness of e.e issues, and not the quantity of questions. Intervenor has not in t 11s ::mtien asked for compulsion on even a small fraction of the interrogatories that were objected to or inadequately answered. Bere is no effort to burden, only a lawful effort to obtain relennt infernation under the :ules governing this proceeding. For an adequate record to be made for the Boari to base its decisicas one discovery should be strictly enforced, compelling answers where responses were evasive of inadequate restricted discovery at this juncture can only have the effect of reducing the quality and quantity of evidence available for Board to pass judgment on.
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.TlICN TO CCMPEL FURTHER A!3 VERS AS TO TE FCLLCWDG L~ITECCATCRIIS (Applicant has requested no Protective Order as to These)
I.24.,26d,26.,273,28k II.4,ha,5,6,8,9a,9b,41,42,46,50,a,b, 51,a l In.20,38,43d,55-57,69,62,63,62a-d,63a,68 IV. 9a , I3a-c , I5a-o , I7, I7a , I8, 22, 24a
! v.I3-I8,44 VI. Sc , na, 2Ia, b,25a ,36c ,40, a ,400,4cd,4Ib,47a,52, a, b.
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VII.5,6,7,9c, vin. fa,7d , e-h, n, I2, I4, I8, a-h,19W,30 l
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MCIICN TO CCMPEL FURTHER ANSWERS AS TO THE FCLLCWUG INTERROGATCRIES l
l (.'7plicant has requested Protective Crder a4 to These)
I.18,28h II.54,55,60 In.43,58 IV.'20 v.n,39,43,45,47,48,50 i
l VI.53-61,66 vn.3,4,8 c 15 vin.8,22e,23e,d,24,28,35 l
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VI. CCNCLUSICtf Intervenor respectfully moves the 3 card for a Compelling Crder as to the Interro6atories identified on the previous page. Certain of these Interrogatories were the subject of a Potion for a Protective Crder submitted by Applicants Intervenor asserts Applicant has not nat its bud en with re6ard its objections and answers should be ce=pelled. Others of these Interregatories were not covered by the Protective CMer Potion, are un2*sponsive, incomplete, or evasive, ard shodd likewise to faced with an Crder Compelling Further Answers. D e remainder of the Interrogatories i
that were subject to Applicant's Potien for a Protective CMer are not the subject of an attempt to compel further answers by Intervener, thus making that aspect of Applicant's request far protection fro.4 answering those particular Interrogatories moot. Intervenor moves the 3oad for a Compelling CM er reluctantly and would hope that parties will begin to meet discovery obligations more rigorously, i:aking future such otions unnecessarf.
Intervenor opposes Applicant's Protective Order request with re6 ads its proposal to limit production of documents in the proceeding to these offered to date by Applicant. Intervenor has outstanding document production requests that have not been cet ' oy Applicant, requesting documents not included in the " Attachment A" Applicant offerst elininatien of future document production can do nothing but 1cuer the quality and quantity of the evidentiary inse from which the Board will draw its decisions.
Intervencr likewise oppcses the Applicant's request for linit en follow-up interrocatories, interregatcries which were served two days previous to service cf this respense.
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Finally, Intervenor requests that the Boari adjust the discovery scheiule to accommodate the strainc placed on it by this current discovery dispute between Applicant ard Intervenor. As 30eri said in i'4 Eay 29,1981, Omier A tight discovery schedule can remain in place without adjustment only if no disputes dsvelop between parties. If disputes arise and motions to compel are filed tsith response tir.e permitted, then the schedule r.ust be adjustod. If a party does not get answers to interrogatories and is forced to file a motion to compel, there is no way that party can file follow up questiens within a shor+, time schedule. An adjustment will have to be made to the schedule to accennodate each situation.
It is always the expectation -f a 3 card that disec,very reqta ats will he answered in a tini y and complete mnner and disputes will ret arise.
Since a dispute has c. rise, Inte: recor requests that the schedule be adjusted accordin61y so that Intervenor's right to follow-up questions on any further answers that the 2cani chooses to ccepel is not waived.
Respectitblysubmitted.
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"aric' Pollock Dated at Los An6eles, CA /Atterney COEM TO fer3RCGS Inte: tenor THE CAP
/ I June 12, 1981 1
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U:i!T7D EATES OF ARERICA
- iUCLEAR REQU1.ATORT CC;2IISSION 2y0RE THE ATOMIC SAFCY KID LICEiSrfG SOA?p In the Matter of )
) Docket :lo. 50-142 THE REGE!TS OF THE Uttr/ERSITY )
0F CALIWiOIIA ) (Proposed Renewal of
) Facility License)
(UCLA Research Reactor) )
)
CERTITICATE OF SER'CCE I hereby eyrtify that cepies of "YOTION TO COMPEL WRTER ANSWERS FROM APPLICANT 2 I"*ERVHiOR'S SEC0 tid Sr 0F riTERPCGATORIES: A:lD P.ESPONSE TO APPLICANT'S MOTIO:I MR A PROTECTr/E ORDER" in the above-captioned proceeding have been served on the following by deposit in the United Stat 3s : nail, first class, this 12th day of June,1981:
Elizabeth S. Bowers, Esq. , Chair: nan Docketing and Service Section (3)
Atomic Safety and Licensing 3os.rd Office of the Secretary U.S. Nuclear Regulatory Comission U.S. Nuclear Regulaton Ccmission Washington, D.C. 20555 Washington D.C. 20555 Dr. Emeth A. Luebke, Judge Counre7, o for NPC Staff Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Jashington, D.C. 20555 Jashington, D.C. 20555 -
Dr. Oscar H. Paris, Judge . Rodger Holt, Esq.
Atonic Safety ar.d Licensing 3 card Office of City Attorney U.S. Nuclear Regulaton Comission 200 North Main Street hfashington, D.C. 20535 City Hall East, Roon 1700 Los Angeles, CA 90012 Willia:s H. Comier, Esq.
Office of Ad=%istrative Vice Chancellor University of Califomia 405 Hilgard Los Angeles, CA 90024 Christine Helvick, Esq.,
Glenn R. Woods, Esq.
Office of General Counsel 27.00 University Avenue 590 University Hall Berkeley, CA 94720 _ p
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MARK
.touns,PcLLcCx el for Intervenor
, [C01InEZTOSPaczTEEcAp l
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