ML20009E739
| ML20009E739 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/23/1981 |
| From: | Cole R, Mark Miller, Remick F Atomic Safety and Licensing Board Panel |
| To: | CITIZENS FOR FAIR UTILITY REGULATION, NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| References | |
| NUDOCS 8107280405 | |
| Download: ML20009E739 (12) | |
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UNITED STATES OF AMERICA gD NUCLEAR REGULATORY COMMISSION s/g b
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Lefore Administrative Judges:
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1 larshall E. Miller, Chairman
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Dr. Forrest J. Remick j
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Docket Nos. 50-445 In the Matter of 50-446
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TEXAS UTILITIES GENERATING COMPANY, ET AL.
(Application for Operating License)
(Comanche Peak Steam Electric Stetion, Units 1 and 2)
July 23, 1981
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MEMORANDUM AND ORDER The Applicants filed a motion to strike CFUR Contentions 2, 7 and 8 for default on May 26, 1981. A response was filed by CFUR on June 10, 1981, opposing the motion, asking for a protective order, and requesting oral l
argument. The Staff in view of the fact that the severe sanct' ion of striking contentions was sought, filed an answer on June 12, 1981 expressing an opinion on discovery matters or motions to which it is not a party.
This motion to strike is essentially based upon the Board's Memorandum and Order entered April 13, 1981. That Order consisted of two parts.
In part (1), CFUR was ordered to " file complete responses" to 60 interrogatories filed by the Applicants.
Part (2) ordered CFUR to " supplement its responses" respecting 44 interrogatories "as soon as the information requested is developed or obtained" (Order, pp.13-14).
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e CFUR filed its " Supplement to Answers to Applicants' First Set of Interrogatories to CFUR and Requests to Produce" on May 8, 1980. The Applicants argue that these responses by CFUR fail to comply with the Board's Order, snd constitute a default under 10 CFR 62.707, for which Contentions 2, 7 and 8 should be stricken. The Staff takes the position that although CFUR 3
has " failed to comply fully" with the Order, the better practice would be to i.
1 impose the lesser sanctdons of limiting CFUR's participation with respect to i
those contentions to which any inadequately answered or unanswered discovery requests are directed. We will first review the cited interrogatories and CFUR's responses in the context of the April 13, 1981 Order.
1 I.
CONTENTION 2 Contentic.
2_ states:
One or more of the reports used in the construction of computer codes for the CPSES/FSAR have not been suitably verified and formally accepted; thus conclusions based upon these computer codes are invalid (CFUR 2A).
i With respect to Contention 2, CFUR-was ordered to provide complete' I
answers to 26 interrogatories. The CFUR supplement contains answers to all of these interrogatories, but Applicants contend that 15 of those answers I
are not responsive. The Staff essentially agreed with the Applicants' assessment of the responses, but it believed that 12, rather than 15, of the answers failed to comply with the Order.
However, with the exception of the answers to Interrogatories 30, 32 and 33, which the Staff believes L
arguably satisfy the Order,1/ the Staff does not itself discuss or point out 1/
NRC Staff Answer to Applicants' Motion to Strike CFUR Contentions for Default (6/12/81), pp. 4-5,-fn. 4.
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. any alleged deficiencies in CFUR's supplemental answers.
In weighing a motion for the outright dismissal of contentions for a discovery default, or even the somewhat more limited sanctions suggested by the Staff, the grounds for such motion will be carefully scrutinized. A general statement that twelve rather that fifteen answers fail to comply with an Order,El is not very persuasive.
The Applicants first argue that nine responses to Contention 2, which state that requested information is "[u]nknown at this time" because of
"[i]nadequate discovery at this time,"1I constitute noncompliance with end default of the Order. The April 13 Order did direct that " straightforward answers" be given to these interrogatories'(p. 5). However, the second part of that Order also recognized that many of CFUR's responses state that the requested information is not available "at this time," or it "must conduct discovery in order to supply an answer" (p.10). The Order then directed CFUR to " supplement its answers to certain interrogatories as soon as supplemental information becomes available" (Id.).
It therefore appears that the supplemental answers that the information is " unknown at this time" and references to incomplete discovery, are consistent with that portion of the
- April 13 Order.
In the instant motion, the Applicants next contend that a refusal to answer based on a claim of awaiting further discovery is not sufficient unless the discovery requests are specified. We would agree with that S/
Id 1/nterrogatories 15, 20, 23, 39, 46, 52, 54, 56 and 62.
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. principle, and have so held in a recent order.1/ However, the instant motion does not seek to compel CFUR to provide the lacking specificity, and that subject was not discussed as to CFUR or the listed interrogatories in the April 13 Order.
It cannot thert fore be said that CFUR has refused to comply with a Board order under circumstances that would justify the imposition of the sanction of dismissal of this contention.
The Applicants next refer to six other interrogatories dealing with Contention 2, the answers to which are alleged to constitute a default of the prior Order.N We agree with the Staff that at least three responses arguably comply with prior directives.6]
Interrogatory 30 refers to getting certain reports and computer codes " suitably verified and formally accepted."
CFUR's supplement refers to its answers to Interrogatories 24 and 27, which sufficiently state its position in this regard.
Interrogatory 32 seeks the basis of an answer to a previous interrogatory. CFUR's supplemental answers to Interrogatories 26 and 29 sufficiently set forth the requested basis.
Interrogatory 33 concerns " conclusions" based upon the computer codes which CFUR claims are " invalid". The supplemental answer satisfies the prior directive.
In addition, the supplemental responses to Interrogatories 27, 29 and 35 are sufficient when read in the context of the somewhat repetitive 1/ emorandum and Order, entered July 20, 1981, p. 2.
M E nterrogatories 27, 29, 30, 32, 33 and 35.
I 6]NRC Staff Answer etc., p. 5, fn. 4.
. series of questions. The Applicants' motion is denied as t5 }hesenresponses to interrogatories based upon Contention 2.
II. CONTENTION 7 Contention 7 states:
Applicants have failed to adequately evaluate whether the rock "overbreak" and subsequent fissure repair using concrete grout have impaired the ability of Category I structures to withstand seismic disturbances (CFUR 6).
Applicants' motion alleges that under the prior Order CFUR was required to file 21 complete responses, but that 14 of its answers are in default of the Order Eight responses indicate that CFUR cannot provide acswers because it has conducted " inadequate discovery at this time."1/ For the reasons set
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forth at pages 3-4,~ supra, sith ~referencerto Contention'2,. these ' responses are not contrary tc the Order of April 13, 1981 and do not constit'ute grounds for dismissal of Contention 7.
j The Applicants next contend that six responses fail to comply with the priorOrder.EI These are responses to a series of bases questions related l
to support problems allegedly resulting from the overexcavation of bedrock and the placing of foreign material in the foundation.
The answers of CFUR are arguably sufficient and do not constitute a basis for the imposition of sanctions.
1/ nterrogatories 108, 111, 112.c., 114, 125, 127, 129 and 132.
I E/ nterrogatories 105, 112.f., 116, 118, 121 and 123.
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. III. CONTEN V 8 Contention 8 states:
Applicants have failed to adequately evaluate the impacts of the drawdowr; of the groundwater under CPSES during and as a result of plant operation (CFUR 7).
The April 13 Order directed CFUR to provide complete responses to 13 interrogatorieswhichweredirectedatContention8.El In its supplement dated May 8, 1981, CFUR stated:
"CFUR is unable to proceed further at this time with responses to Applicants' Interrogatories addressed to Contention 8.
If it becomes able to proceed, CFUR will provide responses to Applicants' Interrogatories addressed to Contention 8 as soon as practicable" (p. 8).
This response is wholly inadequate and unacceptable. No intervenor can keep contentions alive at its own whim, and then provide ordered discovery only if it determines that it desires to proceed. The Board has the power under 10 CFR 62.707 to impose sanctions for defaults arising o'ut of discovery orders. The Commission has also clearly indicated that the presiding officer has the necessary authority to " impose appropriate sanctions on all parties who do not fulfill their responsibilities as participants."E In a recent policy statement, the Commission has also discussed the spectrum of sanctions available to licensing boards to assist in the management of proceedings. E A/ nterrogatories 133, 138, 143.c., 145, 147, 149, 150, 151, 155, 160, 163, I
165 and 167.
N ommission's Statement of Consideration, 37 Fed. Reg., 15127-28 (July 28, f
C 1972).
See also 10 CFR 52.718.
E " Statement of Policy on Conduct of Licensing Proceedings", May 20, 1981.
. Unjustified failures or refusals to comply with discovery orders have resulted in the dismissal cf parties or contentions.El CFUR has not even attempted to comply with the discovery provisions as to Contention 8 contained in the April 13, 1981 Order.
In its Response to the Applicants' motion to strike, CFUR merely stated that "[w]ith respect to Contention 8, CFUR will defer to the efforts of the Staff on the issue of c;adown due to use of groundwater by CPSES" (p. 5). These statements by CFUR and its total failure to answer interrogatories relating to Contention 8, are tantamount to an abandonment of Contention 8 and a default of our discovery orders. Accordingly, Contention 8 will be dismissed.
IV.
DISCOVERY DIRECTIVES TO CFUR AND OTHER PARTIES In view of the overall responsibility of the Board to regulate the course of the hearing and the conduct of the participants,b we are not willing to leave the discovery issues involving CFUR and others in their present posture. We are also mindful of the Commission's recent polic/ statement on E/ ennsylvania Power and Light Company and Allegheny Electric Cooperative, P
Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613,12 NRC 317, 322, 339 (1980). See also Metropolitan Edicon Company (Three Mile Island Station, Unit No.1)- LEIP-80-17,11 NRC 893 (1980); Northern States Power Company, et al.
(Tyron Energy Park, Unit 1), LBP-77-37, 5 NRC 1298, 1301 (1977); Oft' shore Power Systems (Manufacturing License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813, 817 (1975); Public Service Electric & Gas Company (Atlantic Nuclear Generating Station, Units 1 and 2), LBP-75-62, 2 NRC 702, 705-6 (1975).
E10 CFR 52.718(e).
. the efficient conduct of all phases of the hearing process, and its encourage-ment of individual boards to expedite that process by using appropriate managementmethods.E/ The following Commission statement regarding the purposes of and reasonable limitations upon discovery, is brought to the attention of all parties to this proceeding:
" Board Management of Discovery "The purpose of discovery is to expedite hearings by the disclosure of information in the possession of the parties which is relevant to the subject matter involved in the proceeding so that issues may be narrowed, stipulated, or eliminated and so that evidence to be presented at hearing can be stipulated or otherwise limited to that which is relevant. The Commission is concerned that the number of interrogatories served in some cases may place an undue burden on the parties, particularly the NRC staff, and may, as a consequence, delay the start of the hearing without reducing the scope or the length of the hearing.
"The Commission b'elieves that the benefits now obtained by the use of interrogatories could generally be obtained by using a smaller number of better focused interrogatories and is considering a pro-posed rule which would limit the number of interrogatories a party could file, absent a ruling by the Board that a greater number of interrogatories is justified.
Pending a Commission decision on the proposed rule, the Boards are reminded that they may limit the number of interrogatories in accordance with the Commission's rules.
"Accordingly, the boards should manage and supervise all discovery, including not only the initial discovery directly following admission of contentions, but also any discovery conducted there-after. The Commission again endorses the policy of voluntary discovery, and encourages the boards, in consultation with the parties, to establish time frames for the completion of both voluntary and involuntary discovery.
Each individual board shall determine the method by which it supervises the discovery process.
Possible methods include, but are not limited to, written reports from the parties, telephone calls, and status report conferences on the record.
In virtually all instances, individual boards should schedule an initial conference with the parties to set a general discovery / schedule immediately after contentions have beenadmitted."h E/ atement of Policy on Conduct of Licensing Proceedings, May 20, 1981, St pp. 2-3.
E/I_d., at 5-6.
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. The large number of motions and disputes relating to interrogatories and discovery lead _ the Board to conclude that the matter has almost gotten out of hand.
It is similar to the " farrago of motions, objections and rulings" described by the Appeal Board in'Susquehanna, supra. E Such a blizzard of paper reflects a lack of understanding that discovery is intended by our rules of procedure to be conducted by the parties, usually without Board involvement. Those rules, like their judicial counterparts, " attempt to minimize involvement by the trial board." E To clarify and expedite further discovery in this proceedir.g, the Board adopts the following measures:
1.
All parties are directed to confer directly with each other regarding alleged deficiencies in discovery before resorting to motions involving the Board. To this end, voluntary discovery and disclosure are highly encouraged. All, motions involving discovery controversies shall describe fully the direct efforts of the parties to resolve such disputes them-selves.
2.
We reaffirm a rule previously adopted,E requiring that l
pursuant to the provisions of 10 CFR 62.740(e)(3), all l
l interrogatories filed by any party to this proceeding, past or future, shall be deemed to be continuing in nature, and the party to whom they are addressed shall be under a E12 NRC at 337.
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E emorandum and Order entered July 20, 1981, pp. 4-5.
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. continuing duty to supplement the responses as necessary to keep them currently accurate.
3.
Objections to interrogatories or document requests shall be set forth in an appropriate motion for protective order, accompanied by points and authorities sufficient to enable the Board to rule immediately upon receipt of the opposing party's answer to be filed within ten (10) days (10 CFR H52.718,2.730,2.740,2.740b,2.741).
4.
All filings scheduled by the Board shall be physically lodged with the Board and parties on or before the due date, not merely mailed on that date.
Expedited or following day delivery shall be employed when necessary.
5.
The sheer number, volume and complexity of interrogatories should be substantially reduced.
Boiler plate formulas involving unnecessary and redundant details should be avoided. The Board will consider limiting the number of interrogatories in accordance with the Commission's suggestion above, to achieve a smaller number of better focused interrogatories.
6.
A failure to furnish requested information based upon a claim of awaiting further discovery is unresponsive unless precise information is given as to the nature and status of pending discovery, and a specification of the rele-vancy of such facts to the requested information.
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7.
All discovery shall be expedited to the maximum extent reasonably possible, to accommodate an accelerated hearing schedule that will be issued shortly.
8.
A party who files a motion shall not have a right to
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reply to an answer in opposition thereto, unless prior leave is obtained from the presiding officer (10 CFR 52.730(c)). Such leave will be granted sparingly, and then only upon a strong showing of good cause, t
9.
The parties are reminded that interrogatories are not the sole discovery method established by our Rules of Practice (10 CFR 552.740-2.742). A well-timed deposition can often accomplish more than six months of back-and-forth fencing over interrogatories and answers.
ORDER For all the foregoing reasons and based upon a consideration of the entire record in this matter, it is this 23rd day of July, 1981 ORDERED (1) That CFUR's requests for a protective order and for oral argument are denied.
(2) That the Applicants' motion to strike Contentions 2 and 7 is denied.
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. (3) That the Applicants' motion to strike Contention 8 is granted, and Contention 8 is hereby d;smissed.
(4) CFUR is directed to supplement forthwith all of its answers to interrogatories which fail to furnish information because of incomplete discovery, by describing precisely and in detail the status of such pending discovery and the reasons why it is essential to making responsive answers.
(5) The nine rules to manage and limit discovery, interrogatories, objections, motions and the like set forth on pages 9-11, supra, are incorpora-ted herein by reference, and they shall be strictly observed by all parties to this proceeding.
THE ATOMIC SAFETY AND LICENSING BOARD Vdri Forrest J. Remick ADMINISTRATIVE JUDGE
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Dr. Richard F. Cole l
ADMINISTRATIVE JUDGE 1
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Marshall E. Miller, Chairman ADMINISTRATIVE JUDGE l
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