ML20028F180

Motion to Compel Seacoast Anti-Pollution League Answers to Applicant 821207 Interrogatories.Answers Unresponsive & Are Attempt to Evade ASLB Orders Re Discovery Time.Certificate of Svc Encl

ML20028F180
Person / Time
Site:	Seabrook
Issue date:	01/25/1983
From:	Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8301310225
Download: ML20028F180 (8)

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UNITED STATES OF AMERICA DARCH NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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PUBLIC SERVICE COMPAI"

• NEW ) Docket Nos. 50-443 OL HAMPSHIRE, et al. ) 50-444 OL

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(Seabrook Station, Units 1 & 2) )

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APPLICANTS' MOTION TO COMPEL ANSWERS TO INTERROGATORIES BY SEACOAST ANTI-POLLUTION LEAGUE The Applicants move pursuant to 10 CFR S 2.740(f)

I that the Board enter an order compelling the Seacoast Anti-Pollution Lcague ("SAPL") to answer the interrogatories propounded to it by them on December 7, 1982, in the respects set forth herein.

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i 8301310225 830125 '

PDR ADOCK 05000443 PDR (3 S 0 O)

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Interrogatories I-2 thrcugh -4, II-2 through -13, III-2 through -37, IV-2 through -5, V-2 through-4, VI-2 through -9, VII-2 through -6, VIII-2 through -6, IX-2 through -7, X-2 through -9, XI-2 through -7, XII-2 through -15, XIII-2 through -32, XIV-2 through -9, MV-2 through -10, XVI-2 through -8, XVII-2 through -5, XVIII-2 through -4, XIX-2, XX-2 through -5, XXI-2 through -7, XXII-2 through -3, XXIII-2 through -3, XIV -2 through -3, XXVIII-2 through -3, and XXX-2 through -26 In each case, SAPL has provided no answer to the question whatsoever. It has not claimed that any of the questions are irrelevant. It cannot claim that, by their terms, any of the questions excused an answer.1 1The first interrogatory in each of the groups of interrogatories propounded by the Applicants to SAPL (which were arranged according to the admitted contentions) called for SAPL to decl Je whether it intended to offer direct testimony relating to the contention, to cross-examine with respect to the contention, to offer proposed rulings or findings with respect to the contention, or to urge the denial or conditioning of the pending application on the basis of the contention. The interrogatory provided that, if (and only if) SAPL's response were in the unqualified negative, SAPL needn't answer the remaining interrogatories propounded in that group. SAPL's response in each case declared that it had no intention of filing direct testimony, but expressly disclaimed making any similar declaration with respect to cross-examination, proposed rulings or findings, or exhortations regarding disposition of the application.

(See "SAPL's Responses to Applicant [s'] Interrogatories and Request for the Production of Documents" at 1

SAPL is wholly in default, and the Board should order it to answer the questions.

Interrogatory XXV-4 This interrogatory provided:

"For each and every 'c, lass 9' accident identified in response to the foregoing interrogatory, please describe each and every consequence which SAPL contends will result from .

that accident."

SAPL's response, besides being petulant, was wholly non-responsive:

"It is not SAPL's responsibility to determine each and every consequence that would result from a

' worst case' core-melt accident in which either reactor's complete core radio-nuclide inventory were released. The responsibility for that determinatin lies with the Commission's staff and the [ Applicants]. To date, the (Applicants']

Environmental Report has not yet included that determination."

It is SAPL's " responsibility" to answer interrogatories propounded to it. Unless this answer means that SAPL does not intend to contend that any consequence will result -- unless, that is to say, that (defining the response "No").) By their terms the interrogatories called for answere under those circumstances.

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SAPL is prepared to accept without quarrel any such determination made by the Applicants or the Staff -- it is wholly non-responsive. Since past history suggests that SAPL will, when the hearing begins, contend that all sorts of consequences will' result, it is inconsistent with the Rules of Practice for SAPL to attempt to preserve a surprise.

Interrogatories XXIX-3 through -25, XXXI-2 XXXII-2 through -12 and XXXIII-2 through -20 In each of these cases, SAPL answered the first interrogatory with an unqualified "Yes," indicating that it intended to litigate the contentions at issue.

l l In lieu of answering the specific interrogatories, 1

however, SAPL stated as follous:

I "SAPL had not yet finalized its position on this contention. These answers will be supplemented as required by NRC regulations."

While the Applicants fully understand that an answer of "I don't know" is, if truthfully stated, a complete answer to a question, SAPL hasn't responded with an "I don't know." What it really says is, "I don't ;' ant to tell you yet," and this response tendered by SAPL to all of these interrogatories presents two problems.

First, it amounts to an evasion of this Board's orders regarding the time for discovery. SAPL did not

l like the deadlines that this Board ordered, and it sought, unsuccessfully, to have the time within which its answers were due enlarged by several months. When it was unsuccessful in these efforts, it still wholly ignored the Board's orders, filing its interrogatories (undated) only when it felt like it. SAPL has now effectively told the Board and the Applicants, moreover, that while it has now gotten around to submitting a piece of paper, it will only really answer these interrogatories at its own pace anyway. If this approach is allowed to stand, then there is nothing that prevents SAPL from answering these interrogatories no sooner than the date on which it files is prefiled direct testimony, and both the Rules of Practice regarding discovery and the Board's specific orders on the subject will have been rendered a nullity.

Second, it must be remembered that these interrogatories referred specifically to matters that SAPL intends to make a matter for litigation. One must presume that SAPL has something in mind that it wishes to litigate and, if so, then it must answer interrogatories. If, on the other hand, SAPL is still

unable to answer interrogatories about a contention, then the contention ought to be dismissed.2 The Board should strike these answers and order SAPL either to answer the questions or state that it does not know the answers.

Respectfully submitted, bhktludJr.[] w

& Gbh Jr.

/? G.( D2cnan, Thomas R. K. Gad IdI Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 Telephone: 423-6100 Dated: January 25, 1983 2

It bears repeating that the Licensing Board adjudicatory process exists to serve controversies in search of a resolution; it does not exist to serve putative litigants in search of a controversy.

CERTIFICATE OF SERVICE I, Robert K. Gad III, one of the attorneys for the Applicants herein, hereby certify that on January 25, 1983, I made service of the within " Applicants' Motion to Compel Answers to Interrogatories by the Seacoast Anti-Pollution League" by mailing copies thereof, postage prepaid, to:

Helen Hoyt, Chairperson Rep. Beverly Hollingworth Atomic Safety and Licensing Coastal Chamber of Commerce Board Panel 209 Winnacunnet Road U.S. Nuclear Regulatory Commission Hampton, NH 03842 Washington, DC 20555 Dr. Emmeth A. Luebke William S. Jordan, III, Esquire Atomic Safety and Licensing Harmon & Weiss Board Panel 1725 I Street, N.W.

U.S. Nuclear Regulatory Commission Suite 506 Washington, DC 20555 Washington, DC 20006 Dr. Jerry Harbour E. Tupper Kinder, Esquire Atomic Safety and Licensing Assistant Attorney General Board Panel Office of the Attorney General U.S. Nuclear Regulatory Commission 208 State House Annex Washington, DC 20555 Concord, NH 03301 Atomic Safety and Licensing Roy P. Lessy, Jr., Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Commission Director Washington, DC 20555 U.S. Nuclear Regulatory

• Commission Washington, DC 20555 Atomic Safety and Licensing Appeal Robert A. Backus, Esquire Board Panel 116 Lowell Street U.S. Nuclear Regulatory Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 i

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1 Philio Ahrens, Esquire Edward J. McDermott, Esquire Assistant Attorney General Sanders and McDermott Department of the Attorney Professional Association General 408 Lafayette Road Augusta, ME 04333 Hampton, NH '03842 David L. Lewis Jo Ann Shotwell, Esquire Atomic Safety and Licensing Assistant Attorney General Board Panel Environmental Protection Bureau U.S. Nuclear Regulatory Commission Department of the Attorney General Rm. E/W-439 One Ashburton Place, 19th Floor Washington, DC 20555 Boston, MA 02108 Mr. John B. Tanzer Ms. Olive L. Tash Designated Representative of Designated Representative of the Town of Hampton the Town of Brentwood 5 Morningside Drive R.F.D. 1, Dalton Road Hampton, NH 03842 Brentwood, NH 03833 Roberta C. Pevear Edward F. Meany Designated Representative of Designated Representative of the Town of Hampton Falls the Town of Rye Drinkwater Road 155 Washington Road Hampton Falls, NH 03844 Rye, NH 03870 Mrs. Sandra Gavutis Designated Representative of the Town of Kensington RED 1 East Kingston, NH 03827

&t . K C6 sac Robert K. Gad III