ML20011A602

Response Opposing Kansans for Sensible Energy 811008 Motion to Compel Applicant Response to Interrogatories 2,4,6,8,9, 11,12,13,20 & 21.Motion Fails to Specify Bases for Relief Adequately.W/Certificate of Svc.Related Correspondence

ML20011A602
Person / Time
Site:	Wolf Creek
Issue date:	10/23/1981
From:	Ridgway D KANSAS GAS & ELECTRIC CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8110290171
Download: ML20011A602 (8)

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RELATED C0FJ20?0::DE: ICE C October 23, 1.181 DOCKETED USNRC

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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KANSAS GAS IND ELECTRIC COMPANY, ) Docket No. 50-482 et al. )

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(Wolf Creek Generating Station, )

Unit No. 1) )

APPLICANTS' RESPONSE TO KANSANS FOR SENSIBLE ENERGY MOTION TO COMPEL DISCOVERY On October 8, 1981, Kansans for Sensible Energy ("KASE")

filed a motion to compel Applicants "to adequately respor.J to Interrogatories Nos. 2, 4, 6, 8, 9, 11, 12, 13, 20 and 21." Copies of " Applicants' Responses To Financial Qualifications Discovery i Requests of Intervenor KASE," dated September 24, 1981, and

" Applicants' Further Responses To Financial Qualifications Discovery Requests of Intervenor KASE," dated September 29, 1981, were attached to KASE's motion.

i l KASE's motion in deficient in that it fails to adequately specify the bases for the relief which it seeks. A motion to compel must set forth the arguments in support of the motion. 10 CFR 5 2.740(f). Further, 10 C.F.R. 8 2.730 (b) , which governs the con-tent of motions generally, requires, f.n relevant part, that "all D503 5r

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• shall state with particularity the grounds and the relief sought." Thus, KASE was required to specify the grounds for its motion with sufficient particularity to advise the Board and Applicants of the precise theories on which KASE seeks to compel further responses by Applicants to the identified interrogatories. See United States v. 64.88 Acres of Land, 25 F.R.D. 88 (W.D.Pa. 1960); 2A Moore's Federal Practice 1 7.05.-1/

KASE's failure to provide such specificity prejudices Applicants in particularizing a response to KASE's motion, and precludes the Board from tailoring an order on the merits, on an interrogatory by interrogatory basis.

As a first ground for its motion, KASE states simply that

"[t]he answer of each of the [ listed] interrogatories is not complete."

KASE has not in any way explained the way in which it believes the response to each of the listed interrogatories is incomplete. It is virtually impossible to conceive of " language which could be less particular or more brief" than KASE's first stated ground for its motion. See United States v. 64.88 Acres of Land, 25 F.R.D. 88, 89 (W.D.Pa. 1960). Such a bald assertion cannot be sustained as a gnxmd for the requested relief.

l As a second ground for its motion, KASE complains that "[n]either Kansas City Power & Light Company or Kansas Electric Power Cooperative, Inc. answered the interrogatories." To the contrary, as the responses 1/ Since 10 CFR 9 2.730 (b) is analogous to Rule 7 (b) (1) of the Federal Rules of Civil Procedure, Union Electric Co. (Callaway Plant,

! Units 1 & 2), LLAB-348, 4 N.R.C. 225, 231 (1976), it is appropriate to look to authorities interpreting Rule 7 (b) (1) for guidance in inter-preting 8 2.730(b).

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which are attached to KASE's motion plainly indicate, Kansas City-Power & Light Company ("KCPL") and Kansas Electric Power Cooperative

("KEPCo") supplied separate responses to all interrogatories where~--

due to the nature of the questions posed -- one Applicant's-answer diffgred from the others. See, e.g., responses to Interrogatories 4, 6, 8, 9, and 11. The thrust of KASE's complaint appears to be that the affidavits submitted in support of Applicants' responses were signed by Gene P. Rathbun, Manager-Licensing of Kansas Gas and Electric Company, the lead Applicant. According to KASE, Mr.

Rathbun "is not qualified to respond" for KCPL and KEPCo. Though KASE's position contravenes customary NRC practice and is not sup-ported by citation to legal authority, Applicants will supply the requested affidavits in support of KCPL and KEPCo interrogatory responses.

As the third ground for its motion, KASE asserts:

The answer to each interrogatory is incomplete

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because relevant and related information for one or more of the parts of each interrogatory is not furnished by the applicant. All or a part of such information is in the possession of or known to the applicant. The applicants' responses as set forth in the attachments show the parts of each interrogatory that the appli-cants did not answer.

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[ emphasis supplied]. However, examination of the copies of Applicants' interrogatory responses which were attached to the motion to compel f reveals th:. , rather than "show[ing] the parts of each interrogatory that the applicants did not answer," KASE's counsel simply penciled marks next to certain language in Applicants' responses to Inter-l

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rogatories 2 and 6. These pencil marks are wholly insufficient to explain the alleged incompleteness of Applicants' responses.

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For- example , in the response to Interrogatory 2 attached-to:

i- KASE's motion, counsel-for KASE has simply bracketed the language,

"Other documents will .im made available for review by

counsel for.

intervenors in KG&E's Wichita offices." KASE does not explain why l this response is incomplete. In fact, KASE has yet to even request to review the described documents and so cannot assert that Applicants' response is incomplete. Similarly, in KCPL's response to Interrogatory

6 attached to KASE's motion, KASE has underlined the language, "At j this time, we do not have similar projections for 1983 and 1984";

KASE's broad, unsupported assertion, in the body of its motion, that, f

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"[alll _ or a part of such information is in the possession of or .known to the applicant" is, without more, insufficient to sustain.KASE's l

i request for relief as to Interrogatories 2 and 6 on this ground. See generally, United States v. 64.88 Acres of Land, 25 F.R.D. 88 (W.D.

I-4 Pa. 1960). i Further, despite KASE's claim that the response to each of the listed interrogatories is incomplete, there is no indication whatsoever (not even a pencil mark) on the attached: copies of the i responses to Interrogatories 4, 8, 9, 11, 12, 13, 20 and 21.of-those parts of the responses which KASE asserts to be incomplete, not to l

mention an explanation of why KASE believes those responses to be l

! incomplete. Therefore, KASE's request i r relief as to Interrogatories 4, 8, 9, 11, 12, 13,.20 and 21 on this ground must also be denied.

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As it final ground for its motion, KASE asserts, inter alia, that:

Each applicant knows or should know of documents not identified in the response to the interrogatories. .Specifically, but not exclusively, each applicant has-financial and accounting work papers that relate to the interrogatories and.make-financial estimates for future. years.

[ emphasis supplied] . These broad, nonspecific and unsupported allega-tions are insufficient bases for KASE's request for relief. KASE has failed to identify with respect to each interrogatory response asserted to be incomplete the " financial and accounting work papers" which it asserts are responsive to the interrogatories and which Applicants allegedly possess but have not disclosed. In fact, as noted above, KASE has not yet even requested review of the voluminous financial documents which have been collected for its review at KG&E's office, and thus is not in a position to complain that unspecified papers have not been disclosed. KASE further avoids specification of the precise papers which it alleges Applicants have not disclosed by the use of the expansive phrase "but not exclusively." Plainly, Appli-cants cannot be expected to defend their answers to interrogatories against allegations of incor.pleteness when the alleged incompleteness is not particularized.

The requirementiof particularity in a motion is not "a mere technical requirement," but is rather "real and substantial." United i States v. 64.88 Acres of Land, 25 F.R.D. 88, 90 (W.D.Pa. 1960), citing United-States v. Krasnov, 143 F. Supp. 184, 196 (E.D.Pa. 1956). The i

requirement is mandatory, and compliance is essential to orderly

, procedure. United States v. 64.88 Acres of Land, 25 F.R.D. 88, 90 (W.D.Pa.1960) , citing Barron and Holtzhoff, Vol.1, at 405.

For all of these reasons, Applicants respectfully request that ,

KASE's motion to compel be denied.

Recpectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By As t[ 82-~,2 7 "IDelissa /d_ Rid (wap .O Counsel for Applicants 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Dated: October 23, 1981 l

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. , s October 23, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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KANSAS GAS AND ELECTRIC COMPANY, ) Docket No. 50-482 et al. )

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(Wolf Creek Generating Station, -)

Unit No. 1) )

CERTIFICATE OF SERVICE i I hereby certify that copies of " Applicants' Response To Kansans For Sensible Energy Motion To Compel Discovery" were served upon those persons on the attached Service List by deposit in the i United States mail, postage prepaid, this 23rd day of October, 1981.

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Dated: October 23, 1981 a r- .+--e,

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

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KANSAS GAS AND ELECTRIC COMPANY, et al. ) Docket No. STN 50-482

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(Wolf Creek Generating Station, )

Unit No. 1) )

SERVICE LIST James P. Gleason, Esquire Kent M. Ragsdale

. Chairman General Counsel 513 Gilmoure Drive Missou~ri Public Service Silver Spring, Maryland 20901 Com.t.ission P.O. Box 360 Dr. George C. Anderson Jefferson City, Missouri 65102 Department of Oceanography , .

University of Washington A. Scott Cauger, Esquire -

Seattle, Washington 98195 Assistant General Counsel Missouri Public Service Dr. J. Venn Leeds Commission 10807 Atwell P.O. Box 360 Houston, Texas 77096 Jefferson City, Missouri G5102 Myron Karman, Esquire Eric A. Eisen, Esquir Deputy Assistant Chief Bir'ch, Horton, Bittner & Monroe Hearing Counsel 1140 Connecticut Avenue, N.W.

r Office of the Executive Washington, D. C. 20036 Legal Director U. S. Nuclear Regulatory Commission C. Edward Peterson, Esquire Washington, D. C. 20555 Assistant General Counsel

( Kansas Corporation Commission l Atomic Safety and Licensing Board State Office Building - 4th Floor';

U. S. Nuclear Regulatory Commission Topeka, Kansas .66612 Washington, D. C. 20555 e John M. Simpson, Esquire Atomic Safety and Licensing 4400 Johnson Drive Suite 110 Appeal Board Shawnee Mission, Kansas 66205 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Docketing and Service Section Office of the_ Secretary U. S. Nuclear Regulatory Commission Washingtor s. C. 20555 -

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