ML20005A449

Second Motion to Compel Answers to 810423 Second Set of Interrogatories Directed to State of Il.Interrogatories Require Clarification,Elaboration & Definition of Contentions.Certificate of Svc Encl.Related Correspondence

ML20005A449
Person / Time
Site:	Bailly
Issue date:	06/22/1981
From:	Shea K LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, NORTHERN INDIANA PUBLIC SERVICE CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8106300345
Download: ML20005A449 (15)

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BEFORE THE ATOMIC SAFETY AND LICENSING BO /

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NORTHERN INDIANA PUBLIC ) (Construction Permit SERVICE COMPANY ) Extension)

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- e 5 NORTHERN INDIANA PUBLIC SERVICE COMPANY'S A, SECOND MOTION TO COMPEL ANSWERS TO ITS 3, Y, SECOND SET OF INTERROGATORIES TO ILLINOIS s'. W 4 8

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Northern Indiana Public Service Company (NIPSCO) filed its "Second Set of Interrogatorier, to the State of Illinois" on April 23, 1981. Under NRC regulations, responses were due May 12, 1981. On May 11, counsel for Illinois requested by telephone that counsel for NIPSCO agree to an extension to June 16 of the time for filing Illinois' responses. On May 12, counsel for NIPSCO responded that he would not object to an ex-tention to June 1. On May 29, cuansel for Illinois filed a

" Motion for Extension of Time" requesting the Board grant an extensica o." " fourteen days from this date within which to file responses to NIPSCO's Second Set of Interrogatories" (i.e.,

June 15). NIPSCO oppored this motion by a response fJ.1.ed June 4. / Illinois filed its " Answers" to the Second Set of I

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-*/ Our pleading also requested an order campelling Illinois I to respond. That motion is superseded by this "Second Motion."

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Interrogatories on June 9, 1981, 47 days after the interroga-tories were served.

The " Answers" are in substantial part non-responsive and the objections to the interrogatories therein stated are not well taken; NIPSCO therefore files this Second Motion to Compel.

I. Illinois' Objections to Interrogatories

1. " Extended period of construction."

Illinois objects to a number of interrogatories */ which contain that phrase "on the ground that [they are] vague, in that the phrase ' extended period of construction' is not de-fined." The phrase is also used in other interrogatories which were not answered on other grounds.--/ The interrogatories are posed in a proceeding to consider NIPSCO's request for an ex-tension of the period for construction of Bailly Generating Station, Nuclear-1 from September 1, 1979, to December 1, 1989.

In this context it is clear that the " extended period of con-struction" refers to the period between those dates (i.e.,

September 1, 1979, to December 1, 1989) and the interrogatories are not vague. We note incidentally that Illinois has used

• / Chese include Interrogatories 8 (a); 9 (a) ; 14 (a) ; 18(a),

(b), (c), (d); 19(a); 21(e).

• • / These include Interrogatories 15; 17; 18(f); 23 (b) ; 24 (c) .

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similar terminology--e.g., " increased period of construction,"

" extended construction," " additional length of construction time," " additional period of construction time," " longer period of construction time." (Supplemental Petition of the State of Illinois, pp. 7, 8 (February 26, 1980).) The objections taken by Illinois are therefore contrived and foolish--as well as being entirely without merit. We request that Illinois .be required to answer fully these interrogatories and those which stem from the answers (including 8 (d) , 8 (e) ,

9 (d) , 9 (e) , 14, 15, 16, 17, 18 (e) , 18(f), 19(b), 21(f), 21(g)).

2. " Assessed."

This word is used in several interrogatories to which Illinois objects / "on the ground that it is vague, in that ,

the term ' assessed' is not defined nor is it stated by whom an assessment was made." The interrogatories in question use the term " assessed" with express reference to that action "in connection with issuance of Ponstruction Permit No. CPPR-104."

Thus, it refers to that action by.the Atomic Energy Commission including the Staff, Licensing Board, and Appeal Board, per-formed in accordance with the Nationai Environmental Policy Act and AEC's implementing regulations. Furthermore, the verb i

" assess" is (clearly, we believe) intended to be given a usual I

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• / These include Interrogatories 8(c), 9(c).

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dictionary meaning- "to analyze critically and judge defini-tively the nature, significance, status, or merit of; [to]

determine the importance, size, or value of . . . ." (Webster's Third New International Dictionary at 131 (1966).) In short, there is no vagueness and tne objection is without merit.

Illinois should be ordered to answer fully these interrogatories and those which stem from those answers, including Interroga-tories 8(d) and (e), 9(d) and (e) , 14, 15, 16, 17.

3. " Environmental assessment."

This objection is very similar to that described in para-graph 2 above. Interrogatory 10(a) explicitly refers to the

" environmental assessment at the construction permit stage."

Illinois objects "on the ground that (the Interrogatory] is vague, in that it is not stated whose ' environmental assess-ment' is being referred to." In context, there can be no ques-tion but that the interrogatory refers to the environmental assessment by the Atomic Energy Commission including the Staff, Licensing Board and Appeal Board. The objection is without merit and Illinois should be ordered to answer fully.* /

4. "I'ncremental environmental impact."

Illinois objects to Interrogatory 14(a) on several grounds.

One is that "it is vague, in that the phrases ' incremental I 1

• / The objection was taken to Interrogatory 10 (a)~ and answers to several other interrogatories are dependent thereon (eg. , 10 (b) and (c); 11 (a) , (b), and (c), 12, 13).

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I 5-environmental impact' and ' extended pericd of construction' are not defined." / Interrogatory 19(a) is also objected to because the phrase " incremental environmental impact" is not defined. Again, use of a dictionary might have assisted Illi-nois in responding to these interrogatories. " Incremental" is an adjective meaning "of, relatir.g to, constituting, or re-sulting from increments . "

. . . " Increment" is a noun meaning "something that is added or gained; an added quantity or char-acter . . . . (Webster's Third New International Dictionary at 1146 (1966).) Therefore, the Interrogatory clearly asks whether Illinois contends that there will be an additional (in quantity or character) environmental impact resulting from the enumerated or other causes. The nature and specifics of any such " incremental environmental impact" are not defined in the Interrogatory; that is the information which the Interroga-tory seeks.

Illinois' objection has no merit. The state should be

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, ordered to answer fully.- /

5. " Extra period of dewatering."

An additional objection to Interrogatory 19 (a) is based "on the ground that it is vague, in that the [ phrase] '

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• / The matter of defining " extended period of construction" is addressed in Paragraph I.l. above.

• • / Answers to Interrogatories 14 b), 15, 16, 17, and 19 (b) will also be required.

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period of dewatering' . . . [is] not defined." Essentially the same objection is stated with respect to Interrogatory 22 (j) . In context, it is clear, we submit, that the interroga-tories refer to the period of dewatering during the requested extended construction period.-/ There is no vagueness; the objection is without merit end Illinois should be ordered to respond to these and related interrogatories.- /

6.. In several instances, Illinois objects to interrogatories on the ground that they are " incomprehensible." These objections are incorrect and invalid. They may stem from a failure on the part of the drafter of the answer to consult anyone who under-stands the s- =ta.'ce of the matters addressed by the interroga-tories--and u..- -' .cance of contentions advanced by Illinois.

However well-intentioned and sincere the objections, they must be rejected.

In an effort to aid Illinois and expedite completion of its answers, we offer the following elaborations of the Inter-l i rogatories in question. We shall also be pleased to discuss them with Illinois representatives if they wish.

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-*/ Illinois may assume that dewatering continues throughout that period (i.e. , until December 1,1989) unless it con-tends that dewatering will be terminated sooner.

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' --**/ These include 19 (b) , 22 (k) , 22 (1) , 22(m), 22(n), 22 (o) ,

22 (p) , 22 (g) .

. Interrogatory 19(a). This interrogatory asks whether Illinois contends that dewatering for the additional period of time will cause an incremental environmental effect. It asks Illinois to distinguish between effects attributable to the additional period of time and changes in the parameters of the groundwater (see Interrogatory 18 listing of parameters) .

Interrogatory 23. This' interrogatory reminds Illinois of the earlier Licensing Board's conclusion in the coristruction permit proceeding that NIPSCO will not conduct dewatering dur-ing operation of Nuclear-1 (i.e., that dewatering will be con-ducted only during construction). It then asks a number of questions regarding Illinois' contentions about alteration of the soil conditions after dewatering has ceased.

Interrogatory 24. This interrogatory also reminds Illinois of the earlier Licensing Board's conclusion that NIPSCO will not conduct dewatering.during operation of Nuclear-1 (i.e., that dewatering will be conducted only during corstruction). It then asks a number of questions related to Illinois' contentions con-cerning effects on the load-bearing capacity of the foundation and effects of a " core melt."

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7. Illinois objects to Interrogato; 7 24 (e) / "on the ground i

that it is vague, in tnat it is not specified which Commission i

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• / In pertinent part, the Interrogatory asks, "Are you con -

i tending that the load-bearing capacity and foundations of Bail 3y are deficient under the Commission's regulations in a ' situation o~ altered water tables?'"

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. regulations are being referred to." That objection is evasive and ill founded. The Interrogatory asks whether a quoted por-tion of Illinois' contention 3.E. alleges a deficiency under NRC regulations--ang NRC regulations. Those regulations may be found in 10 C.F.R., Parts 1 through 170.

8. Interrogatory 20(a).

The interrogatory quotes Illinois' contention that the "additior:1 period of construction time (sought] is sufficient to cause some of the rare species, particularly the ' Bog indi-cator' plants to disappear from the dunes ecosystem . . . .-

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It then asks Illinois to identify the " rare species" referred to--i.e., the ones which Illinois alleges will be caused "to disappear." Illinois objects "on the ground that the identity of rare species existing in the Indiana Dunes National Lake-shore is provided in literature which is just as available to NIPSCO as it is to Illinois."

Illinois has apparently misunderstood the question and objected to a question which was not asked.- / It should be required to answer the interrogatory.

-*/ " Supplemental Petition'v2 ~ the State of Illinois," Contention 2.A., p. 8 (Feb. 26, 1980).

• • / We note that the objection would be invalid even if the ques-tion had been asked. Illinois is obliged to furnish infor-mation concerning its allegations and its case; a general response to the effect that NIPSCO knows or can find the in-formation is insufficient. Pennsylvania Power and Light Co.

et al. (Susquehanna Steam Electric Station) , ALAB-613, 12 NRC 317, 323 (1980) ; Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), 1 NRC 579, 587 (1975); 4A Moore's Federal Practice (1980 ed.) 133.27 at n. 18.

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II. Other De.?icient Answere

1. Interrogatory 20(c).

Illinois vss raquested to furnish the bases for its con-tantion (quoted in 20 (a)) that rare species will be caused to disappear. Its answer is " Literature including that listed in the Environmental Impact Statement for Bailly, February 1973, and the Final Panel Report submitted to the National Park Service, November 26, 1900."

Illinois should be required to identify any and all

" literature which it maintains constitute a basis for its contention; identification of two documents can not suffice if, as the answer implies, there are additional materials. The reference to "that listed in the Environmental Impact Statement ,

'for Bailly" is imprecise; Illinois must specify which of the

" literature" listed there are bases for its contention since, clearly, not all can be. The remainder of the sentence is ambiguous--one can not be certain whether Illinois is referring to the " Final Panel Report" or to literature listed therein.

We have some difficulty understanding how a report submitted November 26, 1980, could have been a basis for a contention filec by Illinois in February 1980. Furthermore, in the case of lengthy documents, Illinois should be required to identify the portions thereof which support its contention.

2. Interrogatory 21(b).

Illinois was asked to specify the numerical values which it uses as a reference for determining whether a deficiency,

_ surplus, or change in " water"-*/ would adversely affect the en Iakeshore. The answer- j is not responsive. NIPSCO's inter-rogatory is designed to discover the " reference" points used by Illinois for determining whether a deficiency, surplus, or change accurs. If Illinois has no reference points, it may of course say so but it should be required to answer this and re-lated interrogatories (e.g., 21(d), (e), (f), (g), (h)).

3. Interrogatory 21(g) requested, inter alia, that Illinois identify documents upon which it relied in answering Interroga-tories 21(b) through 21(f). Among the '-documents" listed is the " record in the Bailly construction permit proceeding."

That record is extensive; the certified index furnished to the l Court of Appeals in 1974 was an 82-page list which indicated

! that the record consisted of 31,883 pages. Illinois should be l

required to specify the individual documents within the " record" upon which it relies.

• / Illinois' answer to Interrogatory 21(a) states that the

" water" to which it refers is "[a]11 groundwater and surface water in, under, and adjacent to the Indiana Dunes National Lakeshore."

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That answer is: " Illinois uses as a reference any change '

from what would occur in the absence of dewatering at the Bailly site and seepage from NIPSC7's ash ponds. "

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4. Interrogatory 22(a) requested Illinois to identify the bases for its contention that "[d]ewatering can alter subsoil structure in such a way t_.t it can change the reaction to seismic occurrences." The response, in its entirety, is "Longwell, Flint & Saunders, Physical Geology," a college text book. Illinois should be required to cite the specific pro-visions within that volume upon which its contention is based.

5. With respect to several Interrogatories / Illinois states:

"This Interrogatory apparently requests a mere definite and particular statement of contention 3E in Illincis' supplemental petition, February 26, 1980. Fcr the limited purpose of making Contention 3E more definite and particular, Illinois answers:

Ye.." We appreciate receiving the answers given by Illinois but the meaning and purpose of the limitation is unclear. In any event, we know of no basis upon which answers may be limited in this way. If there is another answer (or answers) to be i

given for other " purposes," Illinois should be required to do so.

6. Interrogatory 24 (g) (2) requested identification of the bases for contending that there would be significant differences be-twean environmental impacts of a core melt at Bailly in the presence of " altered water tables" and in the absence of " altered l

• / Interrogatories 22(b), (c), (f), (h) ; 24 (g) .

water tables." Illinois' answer, in its entirety, is "' Reactor Safety Study, ' WASH-1400, NUREG 75-014, October 1975, and Ap-t pendices." The Peactor Safety Study itself has approximately 200 pages (including the Addendum) and there are 11 appendices in 7 additional volumes. Illinois should be required to cite the specific provisions within those volumes upon which its j contention is based.

III. Observation We submit that the " Answers of the People of the State of Illinois to NIPSCO's Second Set of Interrogatories" fall sub-stantially below the standard which is required of parties in NRC proceedings, particularly those represented by counsel.

These interrogatories seek clarification, elaboration, defini-tion of the contentions which Illinois proposed as issues in this proceeding. They probe subjects with which Illinois must be presumed to be familiar. Yet the answers provide little of substance. The objections raised in the Answers aopear to have been contrived for the purpose of evasion; in any event, they are without merit.

We urge the Board to order Illinois to file promptly full and complete answers to NIPSCO's Second Set of Interrogatories.

Those answers may, of course, state that Illinois does not know the answer to an interrogatory when that is the case. We sug-

gest that the Board may wish to remind Illinois of the obligation

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l whicit it assumed by seeking party status and of the fact that sanctions may be imposed upon those who fail to meet their obligations.

Respectfully submitted, LOWENSTEIN, NEWMAN, REIS

& AXELRAD

' 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 By: ffL4

• A Kathleen H. Shea EICHHORN, EICHHORN Attorneys for Northern Indiana

& LINK Public Service Company 5243 Hohman Avenue Hammond, Indiana 46320

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket No. 50-367

)

NORTHERN INDIANA PUBLIC SERVICE ) (Construction Permit COMPANY ) Extension)

)

(Bailly Generating Sta'cion, ) June 22, 1981 Nuclear-1). )

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CERTIFICATE OF SERVICE I hereby certify that copies of Northern Indiana Public l Service Company's Second Motion to Compel Answers to Its -

Second Set of Interrogatories to Illinois in the above-

! captioned proceeding were served on the following by deposit l in the United States mail, postage prepaid, this 22nd day of June, 1981.

Herbert Grossman, Esquire, Chairman Administrative Judge U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Robert L. Holton Administrative Judge

. School of Oceancgraphy Oregon State University Corvallis, Oregon 97331 l Dr. J. Venn Leeds

! Administrative Judge

! 10807 Atwell

! Houston, Texas 77096 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

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Howard K. Shapar, Esquire Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Stephen H. Lewis, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Susan Sekuler, Esquire Environmental Control Division 188 West Randolph Street Suite 2315 Chicago,. Illinois 60601 Robert J. Vollen, Esquire e/o BPI 109 North Dearborn Street Suite 1300 Chicago, Illinois 60602 Edward W. Osann, Jr., Esquire One IBM Plaza Suite 4600 Chicago, Illinois 60611 Robert L. Graham, Esquire One IBM Plaza 44th Floor '

Chicago, Illinois 60611 Mr. Mike Olszanski Mr. Clifford Mezo United Steelworkers of America 3703 Euclid Avenue East Chicago, Indiana 46312 Mr. George Grabowski Ms. Anna Grabowski 7413 W. 136th I.ane Cedar Lake, Indiana 46303 4$LA w Kathleen H. Shea il1 Q LOWENSTEIN, NEWMAN, REIS

& AXELRAD 1025 Connecticut Avenue, N.W. -

Washington, D.C. 20036 L e