ML20005B538
| ML20005B538 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 07/06/1981 |
| From: | Lessy R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8107080346 | |
| Download: ML20005B538 (18) | |
Text
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NUCLEAR REGULATORY COMMISSION
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- u. s, BEFORE THE ATOMIC SAFETY AND LICENSING B0?RD h
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a co In the Matter of
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UNION ELECTRIC COMPANY Docket Nos. STN 50-483
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STN 50-486 (Callaway Plant, Units 1 and 2)
)
RESPONSE OF TriE NRC STAFF TO J0!itT INTERVENOR'S OBJECTIONS TO STAFF INTERROGATORIES AND MOTION TO COMPEL JOINT INTERVENORS TO RESPOND TO STAFF INTERR0GATORIES 1(h)(a) AND (b) AND 13 1.
INTRODUCTION On June 24,1981, the Joint Intervenors filed their "...
o quests For Production" (hereafter Objections To Interrogatories Ano e
" Joint Intervenors' Objections"), of the separately filed Staff and Applicant discovery requests.
In that pleading, Joint Intervenors objected to Staff Interrogatories 1(h)(a) - (t,) and 13.
The Joint Intervenors also objected to Applicant Interrogatories on Contention 1, 1A-1, IA-6(c), and General Interrogatory A, as well as Applicant Interrogatories on Contentien 2, p. 2 A-1(c). The substance of these objections is the same:
" Joint Intervenors object to identifying persons known to us to have first hand knowledge of the basis for our contentions and persons who participate in providing answers to interrogatories"
.(Joint Intervenors' Objections, p.1).
In accordance with the provisions of 10 C.F.R. s 2.740(f) of the Coamission's Rules of Practice, the NRC Staff hereby coves the Licensing Board for an order compelling the Joint Intervenors to Answer Staff interrogatories 1(h)(a) - (b) and 13.
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II.
DISCUSSION The Staff interrogatories in question, which apply to Joint
'Intervenors' Contentions 1A-1F (alleged construction defects) and 2A-2E, 2G, (environmental contentions concerning radiological discharges) read as follows:
"l(h) a.
Upon what person or persons do you rely to substantiate in whole or.in part your views on Contention No. 2A, 2B, etc.
b.
Provide the addresses and education and professional qualifications of any persons named in response to 1(h)a above."
Staff Interrogatory 13 provides:
"Q-13(a)
List all individuals participating in answering these interrogatories.
Provide their names, addresses, business, or occupation, if any, and telephone numbers.
If the ind;vidual is a member of one or more of the " joint intervenors" organizations, list that nembership.
(Exclude clerical assistance in preparing answer).
(b)
For each such individual, list the ap-proximate percentage of time that indi-vidual participated relative to other listed individuals."
Joint Intervenors state that the Staff and Applicant are seeking "...
persons known to us to have first hand knowledge of the basis for our contentions and persons who participate in providing answers to inter-rogatories,"I/- but argue that "in due course" when it "has been 1/
Joint Intervenors' Objections, p.1.
. determined" Joint Intervenors will provide the names of their wit-nesses./ Joint Intervenors' claim that "... the Applicant and Staff 2
have no legitimate need to know the names of persons who have first hand knowledge of the basis for Joint Intervenors' contentions and who are, or have assisted Joint Intervenors in this matter.
(JointInter-venors Objections, p. 1).
As to the identities of persons who admittedly have first hand knowledge of the basis for Joint Intervenors' contentiens and persons who are assisting Intervenors in this proceeding, the question has been decided in General Electric Company (Vallecitos Nuclear Center, General Electric Test Reactor) LBP-78-33, 8 NRC 461, 466 (1978) where the licensing board held, after reviewing applicable Commission regulations and case law, "... that the identities of persons assisting intervenors are expressly discoverable under the Commission rules." / In reaching this conclusion, the licensing board reviewed the pertinent' language in 10'C.F.R. 9 2.740(1), which provides in pertinent part:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject 2, /
_I. d 3/
See also Pennsylvania Power and Licht Company and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAb-613, 12 HRC 317, 340 (1980) where the Appeal Board con-cluded that interrogatories designed to discover what (if any) evidence underlies an intervenor's contentions are permissible.
4 matter involved in the proceeding, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party including the existence, descrip-tion, nature, custooy, condition, and location of any books, documents, or other tangible things and the iden?.ity and location of persons havino knowledoe of any discoverable matter.
(emphasis added).
That provision remains in effect today and the Staff believes it disposes of the heart of Joint Intervenors' objections, as it clearly provides for the discovery of the identity of persons having first hand knowledge of Joint Intervenors' contentions as well as those individuals who are delineating Joint Intervenors' position in this proceeding by responding to discovery requests.
Application of the Vallecitos holding is, moreover, particularly appropriate here because many of Joint Intervenors' contentions present mixed questions of fact and law.
For example, Joint Intervenors' Contention IF states that " improper inspection techniques and defective welds were used in pre-assembly piping formations."S/ Similarly Joint Intervennrs' Contention ]B states that "several cracks in concrete struc-tures... were not inspected and were accepted."E/ If there are indivi-l duals who have first hand knowledge of these ailegations, or who are making these allegations which the Joint Intervenors are sponsoring as contentions j
in this proceeding, the Staff (as well as the Applicant) has the right to i
4/
See "Special Prehearing Conference Order (April 21, 1981), p. 8.
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16.
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. discover this information directly.
Inherent in the discovery process is the right of the parties to consider all relevant information en these al-legations. The Appeal Board has concluded that the "... courts have long recognized that parties are entitled to discover all matters not privileged that tend to support or negate the allegations in the pleadings, or which are reasonably calculated to reveal such matters." Susouehanna, supra, 12 HRC 317, 331 (1980).
The application of this principle disposes of Joint Intervenor objections.
For example, in support of Joint Intervenors' allegations thet there were instances of honeycombing at the reactor building base mat, Joint Intervenors state:
On May 31, 1977, voids described by the ilRC as up to six miles, but described by a worker as big enough for a man to crawl into, were found in gpe tendon access gallery of the reactor base mat.--
The Staff is entitled to discover the identity of persons having first hand knowledge of these matters, or who are assisting in the preparation of interrogatory answers.
The fact that at some point Joint Inter-venors will designate expert witnesses to testify about such matters (see Joint Intervenors' Objections, p.1) does not satisfy their dis-covery obligations now, especially since such " experts" may not them-selves have the first hand knowledge that Joint Intervenors are now seeking to withhold.
Joint Intervenors make the blanket statement that the Applicant and Staff can htye no legitimate reed to know the identity of other persons, 6/
See " Amended ar.d Supplemental Joint Petition To Intervene," p. 8 (March 6, 1981).
{T not witnesses, whc ': ave assisted and are assisting Joint Intervenors in this matter" (Joint Intervenors' Objections, p.1).
Yet, Joint Inter-venors have obviously forgotten that they have in their Interrogatory 111 requested the same information from the f4RC Staff, and the Applicant, to which they now object.U In addition to seeking to withhold the names of individuals who admittedly have first hand knoaledge of their contentions, the Joint Intervenors are apparently also witnholding the identity of " experts" with whom they have consulted, but whom they already know are not those experts who are expected to testify at the hearing.E In support of this position, Joint Intervenors simply make the blanket statement that "[T]ne identity of experts who have been consulted informally in anticipation of trial is not discoverable."U The Vallecitos cecision, supra also clearly dealt with this argument.
Relying on Baki v. B. F. Diamond Construction Co., 71 F.R.D.' 179 (U.S.D.C.
- 1d.,1976), the-Vallecitos Board initially noted that both the Federal Rules of Civil Procedure, and 10 C.F.R. 9 2.740, required the identities and locations of persons hhving knowledge of any discoverable matter.
l y
Interrogatory 111 from Joint Intervenors to the i4RC Staff, requests j
the names of the person (s) providing the answers to each interroga-i tory by subpart.
This is in addition to Interrogatory 109 which requests an identification of "all expert witnesses that are ex-j pected to testify for the 11RC Staff."
8]
See Joint Intervenors' Objections, p. 2.
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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. _ _ _ _ 8 NRC at 467. The Board, as did the Court in Baki, supra, then con-cluded that the identity of experts who have been employed in antici-pation of litigation, or in connecticn with
- tigation, but who are not expected to testify, may be obtaine.d through interrogatories without any special showing of exceptional circumstances.
8 NRC at 467.
Even if there has not been a retainer or special employment of such non-testifying but consulting experts, the Vallecitos Board reasoned that the identity of such experts could not be withheld if these experts possessed "information or knowledge concerning a specific case at hand," as opposed to nonspecific general information. There would appear to be no reason to depart from the Vallecitos holding here, as the non-testifying experts which Joint Intervenors now seek to withhold admittedly possess, and have consulted with, Joint Intervenors in this specific proceeding.E There-fore, the Staff concludes that the identity of those persons who have first hand knowledge regarding the Joint Intervenors' contentions'and who have as-sisted in the preparation of interrogatory answers should be disclosed.
As aforementioned, the requested information is vital here inasmuch as many of the contentions consist of mixed questions of fact and law where the Joint Intervenors appear to be relying on sources of information which they claim, in part, factually and technically contradicts actions taken by the NRC Staff inspectors.
Having made such allegations, Joint Intervenors cannot be seen to object to the efforts of the Staff to ascertain these " facts" and " opinions" 10f The Staff would be willing to consider an exception to this if it is demonstrated that with respect to a given expert only " nonspecific general information" unrelated to this proceeding was sought.
2 i from those that possess first-hand " knowledge." And as indicated above, having submitted over a hundred multi-part interrogatories to the 11RC Staff which includes requests for virtually the same information which Joint Inter-venors now seek to withhold, the Staff believes that there is no equitable basis to sanction Joint Intervenors' objections.
Joint Intervenors' state the disclosure cf these names of such persons will " expose them to possible reprisals" and " adverse employment actions."
In that regard, the Staff would be willing to consider appro-priate protective orders to limit the dissemination of such names, once Joint Intervenors' communicate the precise nature of their concerns to the Staff, and such concerns are evaluated by the Staff.
III.
COI4CLUSION For the reasons stated above, the Staff believes that Jolnt Inter-vecors' objections to Staff's Interrogatories 1(h)a and b and 13 should be overruled, and tnat the Staff's motion to compel answers to these interrogatories should be granted.
Respectfully submitted, Tc P L,
Roy P. Lessy Deputy Assistant Chief Hearing Counsel l
Dated at Bethesda, liaryland l
this 6th day of July,1981.
i s
I ". '.
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORETHEAiOMICSAFETYANDLICENSINGBOARD In the Matter of
)
)
UNION ELECTRIC COMPANY
)
Docket Nos. STN 50-483
)
STN 50-486 (Callaway Plant, Units ~ and 2)
)
CERTIFICATE OF SERVICE I hereby ' certify that copies of " RESPONSE OF THE NRC STAFF TO JOINT INTER-VENOR'S OBJECTIONS TO STAFF INTERROGATORIES AND MOTION TO CO.'iPEL JOINT INTERVENORS TO RESPOND TO STAFF INTERROGATORIES 1(h)(a) AND (b) AND 13" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by Express '" ail Service, or, as indicated by a double asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 6th day of July,1981:
James P. Gleason', Es4., Chairman Barbara-Shull Atomic Safety and Licensing Board Lenore Loeb 513 Gilmoure Drive' League of Women Voters of Missouri Silver Spring, MD 20901 2138 Woodson Road St. Louis, 110 63114 Mr. Glenn O. Bright **
Atomic Safety and Licensing Board Mar,iorie Reilly U.S. Nuclear Regulatory Commission Energy Chairnan of the League of Washington, DC 20555 Women Voters of Univ. City, MO 7065 Pershing Avenue Dr. Jerry R. Kline**
University City, MO 63130 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Gerald Charnoff, Esq.
Washington, DC 20555 Thomas A. Baxter, Esq.
Shaw, Pittman, Potts & Trowbridge Mr. John G. Reed 1800 M Street, N.W.
Rt. 1 Washington, DC 20036 Kingdom City, MO 65252 Dan I. Bolef Treva J. Hearne President, Board of Directors Assistant General Counsel for the Coalition for the Environment, Missouri Public Service Commission St. Louis Region P.O. Box 360 6267 Delmar Boulevard Jefferson City, MO 65101 University City, MO 63130 u---u-- - - - -
w----. - - - - - - - - - - - - -. - - - - -,. - -. - - - - - - _. - _ _ - - - _ - _ -. _ - - _. _ - _ _ - - - _ _ - - - - - -,, - - - - - _ - - - - _ _ _ - - -
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. Donald Bollinger, Member Rose Levering, Member Missourians for Safe Energy Crawdad Alliance 6267 Delmar Boulevard 7370a Dale Avenue University City, MO 63130 St. Louis, MD 63117 Mr. Fred Luekey Presiding Judge, M.ontgomery County Rural Route Rhineland, MO 65069 Mayor Howard Steffen Chamois, MO 65024 Professor William H. Miller Mr. Earl Brown Missouri Kansas Section, School District Superintendent kmerican Nuclear c,cciety P.O. Box 9 Department of Nuclear Engineering Kingdom City, MD 65252 1025 Encineerinc Euildinc University of .issouri Mr. Samuel J. Birk Columbia, MO 65211 R.R. 41, Scx 243 Morrison, MO 65051 Mr. Harold Lottman Fresiding Judge, Dasconade County Rcber: G. Wright Rt. 1 Associate Judce, Eastern District Oriensville, MD 65066 Ccunty Ccurt, Callaway County, Missouri Eric A. Eisen, Esq.
Route 1 Eirch, Horton, Eittner and Monroe Fulton, MO 65251 Suite 1100 1140 Connecticut Avenue, N.W.
Atonic Safety and Licensing Washington, DC 20036 Eoard Panel'*
U.S. Nuclear Regulatory Commission Docketing and Service Section**
Washington, DC 20555 Office of the Secretary U.S. Nuclear Regulatory Conmission Atomic Safety and Licer. sing Washington, DC 20555 Appeal Board **
U.S. Nuclear Reculatory Commission tlashincten, DC 20555 Ker.neth M. Chackes*
Chaci.es and Hoare Attorney for Joint Intervenors 214 N. Eroadway J
(j, [' y St. Louis, Missouri 63102 f.-
Roy P. Less')
l f
Decuty Assistant Chief Hearing Counsel
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