ML20023B449
| ML20023B449 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 05/04/1983 |
| From: | Johnson G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8305050080 | |
| Download: ML20023B449 (13) | |
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May 4, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of DUKE POWER COMPANY, ET AL.
Docket Nos. 50-413 50-414 (CatawbaNuclearStation, Units 1 and 2)
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NRC STAFF RENEWED MOTION TO COMPEL FULL ANSWERS TO INTERROGATORIES ON PALMETTO ALLIANCE CONTENTION 7 T.
INTRODUCTION The NRC Staff hereby renews its motion to compel full responses to NRC Staff's First Set of Interrogatories and Document Production Requests to Palmetto Alliance on Contention 7.
Following the Staff's original motion to compel,1/ the Licensing Board, by its Memorandum and Order dated December 22, 1982, determined that as to Palmetto's contentions 8,16, and 27, Intervenor could be given a "first bite" at
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discovery -- that is, discovery from Applicants and Staff -- prior to i
l being required to respond to Applicants and Staff interrogatories on l
contentions 8, 16, and 27.
Id. at 11-17. At the Third Prehearing d
Conference, the "first bite" approach was adopted by the Board with
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NRC Staff Motion to Compel Full Responses to NRC Staff's First Set of Interrogatories and Document Production Requests to Palmetto Alliance on Contention 7, dated December 16, 1982. The Board and i
parties are referred to this pleading for further background not restated here.
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1 respect to each of the then admitted Palmetto contentions:
6, 7, 8, 16, 27_and 44. Record transcript at 804 As a result, the Staff's original motion to compel on Contention 7 was treated as no longer "pending." I d_.
In the intervening months, Palmetto Alliance has, in fact, obtained discovery from Staff and Applicants, and on April 19, 1983 filed its i
supplemental responses on contentions 6, 7, 8, 16, 27 and 44.2/ Having reviewed these responses, the Staff renews its Motion to Compel as to Staff interrogatories 12-15, and 17 on Contention 7, from the above-cited first interrogatories.E As argued in the Staff's original motion, Palmetto Alliance has not seen fit either to directly answer the Staff's interrogatories or, with one exception noted below, to provide responsive answers to similar Applicants' interrogatories. The supplemental responses to those Applicants' interrogatories similar to the Staff's --
that is, requesting specific information as to the facts and law relied upon for Contention 7 -- are evasive, in effect stating that it is up l
to the Applicants and Staff to determine exactly what facts and law Palmetto may choose to rely upon. In the Staff's view, the arguments made in the original Staff Motion to Compel are even more compelling now, and require full, complete, and responsive answers to our interrogatories.
With such answers, it is possible to litigate Contention 7; without them, 2/
Palmetto Alliance Supplemental Responses to Applicants' and Staff's Interrogatories Regarding Contentions 6, 7, 8, 16, 27 and 44.
3/
The Staff has interpreted the Board's Order of April 1,1983 providing for 10 workino days for serving follow-up interrogatories on Palmetto Contentions 6, 7, 8, 16, 27, and 44 as applicable to motions to compel on Palmetto's April 19, 1983 responses. However, to the extent 10 CFR Sections 2.740(f)(1) and 2.710 may apply to this pleading, the Staff moves that the Board extend the time for serving the Motion to Compel until May 4, 1983.
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Contention 7 should not be litigated. Therefore, as a first step, the Staff urges the Board to compel such answers.
II. DISCUSSION A.
Intervenor Has Failed to Meet Its Discovery Obligations To Answer Interrogatories On The Factual And Legal Bases For Its Contention As admitted, Palmetto Alliance Contention 7 states:
No reasonable assurance can be had that the facility can be operated without endangering the public health and safety because of Duke's consistent failure to adhere to required Commission operating and administrative procedures provided for in Commission rules and regulations. "The Nuclear Regulatory Commission has the statutory responsibility for prescribing licensing standards to protect public health and safety and for inspecting the industry's activities against these standards. The Commission does not thereby certify to the industry that the industry's designs and procedures are adequate to protect its equipment or operations."
Federal Tort Claim of General Public Utilities Corp., et al.,
CLI-81-10, 13 NRC 773, 775-776 (1981). At both Oconee and Catawba facilities of Duke Power Company the Systematic Assessment of Licensee Performance Review Group found " weaknesses in personnel adherence to operating and administrative procedures" and " failure to follow procedures." NUREG 0834, Licensee Assessments, August 1981, pp. A-3, B-1.
As long ago as 1977 Duke, Licensee for the Oconee facility, was assessed civil penalties of $21,500 where "the history of repetitive and chronic non-compliance, when considered in conjunction with failure to institute effective corrective action and management controls, demonstrates that management is l
apparently not conducting licensed activities with adequate concern for the health, safety or interest of its employees or the general public." Ernst Volgennau, Director, Office of Inspection and Enforcement, USNRC, to Carl Horn, Jr., President, Duke Power Company, March 19, 1977, Docket Nos. 50-269, 50-270, 50-287.
The six interrogatories which the Staff has propounded on Contention 7 l
seek particularization of the general allegations contained in Intervenor's contention -- requesting either the factual or legal bases for those 1
4 Thus, Interrogatory 12 / seeks the factual basis general assertions.
for the assertion that Applicants fail to adhere to operating and administrative procedures.
Interrogatory 13EI seeks Intervenor's position on the public health and safety significance of the above assertion and the Comission rule or regulation purportedly not met.
Interrogatory 14b/ asks Intervenor to further particularize the
" weaknesses in personnel adherence to operating and administrative procedures" and " failure to follow procedures" on which it relies.
I 4/
Interrogatory 12 states:
Identify, and give full details with respect to, infonnation j
which you contend in the first sentence of Contention 7 indicates that Duke has failed to adhere to operating and administrative procedures provided for in Comission rules and regulations, with respect specifically to the Catawba facility.
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Interrogatory 13 states:
With respect to your answer to Interrogatory 12, identify l
(a) the public health and safety significance of any failure identified therein; and (b) each Comission rule 2nd regulation which you contend is or was not adhered to by Duke.
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Interrogatory 14 states:
Identify (a) each weakness in personnel adherence to operating and administrative procedures, and (b) each failure to follow procedures referred to in the fourth sentence of Contention 7, which you contend supports your statements that "[n]o reasonable assurance can be had that the [ Catawba] facility can be operated without endangering the public health and safety," or that any Comission rule or regulation has not been adhered to by Duke.
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5-Interrogatory ISE seeks Intervenor's position on how these " weaknesses" and " failures" raise health and safety concerns or constitute non-compliance with Comission regulations.
Interrogatory 160/ seeks to detemine whether Intervenor contends the 1977 enforcement action referenced in the contention bears on the Catawba facility, and Interrogatory 17El seeks the factual and legal basis for such a contention.
7/
Interrogatory 15 states:
With respect to those matters identified in your answer to Interrogatory 14, explain fully how such weaknesses in personnel adherence to operating and administrative procedures or failure to follow procedures, support your contention that
"[n]o reasonable assurance can be had tnat the [ Catawba]
facility can be operated without endangering the public health and safety," and/or demonstrates a failure to adhere to i
specific Comission rules and/or regulations.
l 8/
Interrogatory 16 states:
Do you contend that the enforcement action taken by the NRC in r
j 1977 with respect to the Oconee facility has a bearing on Applicants' adherence, with respect to the Catawba facility,
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to the Comission rules and regulations specified in your answer to Interrogatory 13?
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Interrogatory 17 states:
Explain the factual basis and/or legal authority for your answer to Interrogatory 16.
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m Since Interver1or's original responses failed completely to I
directly respond to these interrogatories, the Staff undertook to identify similar Applicants' interrogatories and to examine Intervenor's original responses thereto. This exercise, as shown in Table 1 of the Staff's original motion (see Footnote 1), revealed that Intervenor had not answered Applicants' interrogatories which were similar, and that Applicants had not asked i,nterrogatories similar to Staff interroga-tories 15, 16 and 17. Upon review of Palmetto's supplemental responses of April 19, 1983, the Staff still finds that Palmetto has refused to provide direct answers to the Staff's interrogatories, and has provided evasive answers to all but one of Applicants' interrogatories which are sibilar to Staff interrogatories.
Thus, fr.' response to numerous Applicants' interrogatories seeking I
to get to the facts upon which Intervenor's allegations of " weaknesses in personnel adherence to operating and administrative procedures" and l
" failure to follow procedures" are based, Palmetto's supplemental responses 1
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l state that Applicants should consult the Staff's Systentic Assessments of Licensee Performance applicable to Duke nuclear facilities or simply that the information is within the knowledge of Applicants and/or the Staff.
(Examples of this approach may be seen in Palmetto's responses to Interrogatories, 1, 2, 3, 4, 5, 6, 8, 9, 12, 25, 33, 35, 36, 37, 38, I
and 46.)
-10/ " Palmetto Alliance Responses to NRC Staff's First Set of Interrogatories and Document Production Requests and Motion for Protective Order," May 26, 1982.
. e It is the Staff's position that such answers are unresponsive. The Staff is left to speculate as to the specific occurrences and particular standards which may form the basis for Palmetto's case. As we stated in our original motion, these interrogatories seeking the facts and law upon which Intervenor may rely should be within the knowledge of the party sponsoring a contention; "interrrogatories seeking specification of the facts upon which a claim or contention is based are wholly proper, and the party may be required to answer questions which attempt to ascertain the basis for his claim or, for example, what deficiencies or defect [are] claimed to exist..." Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), LBP-75-30, 1 NRC 579, 582, 586 (1975); see also, Pennsylvania Power & L.ight Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 331 (1980).
The Licensing Board in its December 22, 1982 Memorandum and Order disagreed with the Staff that Palmetto should have had the specific facts and law upon which it was relying at that time, and accordingly allowed Palmetto further discovery of the other parties prior to requiring further Palmetto responses. However, the opportunity for such further discovery has been afforded and the Board should look upon Palmetto's continuing frilure to be specific and to particularize their contention in the current posture of the proceeding as completely unjustified.E
-11/ The Staff would also note tnat even in the December 22, 1982 Memorandum and Order, the Licensing Board had " difficulty accepting at face value some disclaimers of knowledge about contentions" -
particularly as to the legal theory which Palmetto had in mind.
It is the Staff's view that Palmetto's reliance in its supplemental responses upon 10 CFR 50.57(a)(3) does not provide a specific standard against which to measure any specific action by Applicant, or Applicant's personnel, and is therefore evasive.
a
While it would appear that Palmetto has provided in substance, if not in form, a response to the Staff's Interrogatory 16 (see, Palmetto's responsa to Applicants' Interrogatory 30), Palmetto has not provided, as requested by Staff Interrogatory 17 any facts on which it intends to rely in order to show a relationship between " weaknesses" and
" failures" at Oconee, and similar problems at Catawba.
As the Appeal Board stated in Susquehanna, "A litigant may not make serious allegations against another party and then refuse to reveal whether those allegations have any basis." 12 NRC at 339. Here, Palmetto Alliance's response is remarkably similar te that of the intervenors in Susquehanna, where it was erroneously claimed that the
" issues raised in contentions are matters about which the Applicant and Staff should be well prepared already, if the license is to issue, regardless of whether or not Intervenors can supplement their initial responses to interrogatories." Id. The Appeal Board ruled that this
" understanding of an intervenor's roic is simply wrong." Ij!.at340.
The Licensing Board in Public Service Company of New Hampshire, et al.
(Seabrook Station, Units 1 and 2), slip opinion dated April 18, 1983, page 5, in only slightly different circumstances, followed the Susquehanna ruling, stating, "an intervenor has the burden of going forward with respect to its own contentions."
(Emphasis in original).
Here Palmetto Alliance appears to believe that since it is relying upon activities conducted by Applicants and under the regulatory supervision of the NRC Staff, it is unnecessary to specifically identify the facts and legal theory upon whip i it intends to rely in support of its contention. As the Appeal Board has ruled, such a view "is simply
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wrong. " As a result, Palmetto should be ordered to answer specifically and completely the Staff's interrogatories on Contention 7.
III. RELIEF REQUESTED Based on the foregoing, the Staff requests that the Licensing Board issue an order requiring specific, complete and responsive' answers to interrogatories 12-15, and 17 on Contention 7 of the NRC Staff's First Set of Interrogatories and Document Production Requests to Palmetto Alliance, dated May 7,1982.
Respectfully submitted, k
,/' George nson Counsel for NRC Staff Dated at Bethesda, Maryland this 4th day of May, 1983 E
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of DUKE POWER COMPANY, ET AL.
Docket Nos. 50-413 50-414 (Catawba Nuclear Station, Units 1and2)
CERTIFICATION OF COUNSEL I, George E. Johnson, Counsel for the NRC Staff in the captioned proceeding, hereby certify as follows:
1.
I telephoned Robert Guild at the office of Palmetto Alliance in the late afternoon of May 3, 1983 for the purpose of discussing the Staff's motion to compel answers to the Staff's Interrogatories 12-15 and 17 on Palmetto Alliance's Contention 7.
I was told Mr. Guild would be at the Palmetto Alliance office that evening.
2.
Twice on the evening of May 3, 1983, I telephoned the office of
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Palmetto Alliance and was answered by a recorded message.
3.
On the morning of May 4,1983 I telephoned Mr. Guild at the office of Palmetto Alliance and was told he would call me back when he returned that morning.
4.
Late morning, May 4,1983, Mr. Guild returned my call, and I indicated the Staff's desire to obtain further information in response to the Staff's interrogatories on Contention 7.
He said he was unable to discuss the matter, because he had to catch a plane. He indicated, however, he would call me the next day.
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5.
As of the due date of this filing, therefore, no accomodation on this discovery has been reached.
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Aeorge M Jobson Counsel ior NRC Staff Subscribed and sworn to before me this \\ y day of \\%4 1983 MY'M
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Notary Public My comission expires:
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COPHISSION L
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of DUKE POWER COMPANY, ET AL.
Docket Nos. 50-413 50-414 (CatawbaNuclearStation, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RENEWED MOTION TO COMPEL FULL ANSWERS TO INTERROGATORIES ON PALMETTO ALLIANCE CONTENTION 7" and
" CERTIFICATION OF COUNSEL" 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 deposit in the Nuclear Regulatory Commission's internal mail system, this 4th day of May, 1983:
- James L. Kelley, Chairman Robert Guild, Esq.
Administrative Judge Attorney for the Palmetto Alliance Atomic Safety and Licensing Board P. O. Box 12097 U.S. Nuclear Regulatory Comission Charleston, South Carolina 29412 Washington, DC 20555 Palmetto Alliance Dr. A. Dixon Callihan 21351 Devine Street Administrative Judge Columbia, South Carolina 29205 Union Carbide Corporation P. O. Box Y Henry Presler, Chairman Oak Ridge, TN 37830 Charlotte-Mecklenberg Environmental Coalition Dr. Richard F. Foster 942 Henley Place Administrative Judge Charlotte, North Carolina 28207 P. O. Box 4263 Sunriver, Oregon 97702 Jesse L. Riley Carolina Environmental Study Group Richard P. Wilson, Esq.
854 Henley Place Assistant Attorney General Charlotte, North Carolina 28207 P. O. Box 11549 Columbia, South Carolina 29211 William L. Porter, Esq.
Albert V. Carr, Esq.
J. Michael McGarry, III, Esq.
Ellen T. Ruff, Esq.
Debevoise and Libeman Duke Power Company 1200 17th Street, NW P. O. Box 33189 Washington, DC 20036 Charlotte, North Carolina 28242
- Carole F Kagan, Attorney Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comission Washington, DC 20555
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comission Washington, DC 20555
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Comission Washington, DC 20555
- Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Comission Washington, DC 20555 t.gth-faderge 7. JoqnAon Counsel for M C Staff e
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