ML20039C188

Objections to Listed 811204 Interrogatories.Discovery May Not Compel Party to Generate New Info.Each Party Has Responsibility to Do Own Pretrial Work.Protective Order Should Be Issued

ML20039C188
Person / Time
Site:	Zimmer
Issue date:	12/23/1981
From:	Wetterhahn M CINCINNATI GAS & ELECTRIC CO., CONNER & WETTERHAHN
To:	ZIMMER AREA CITIZENS - ZIMMER AREA CITIZENS OF KY
References
NUDOCS 8112290015
Download: ML20039C188 (8)

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S Si5NU OI DEC 28 As ;27 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ~~~~~~

In the Matter of )

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The Cincinnati Gas & Electric ) Docket No. 50-358 g g Company, et al. ) y

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(Wm. H. Zimmer Nuclear Power )

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OBJECTIONS TO ZAC/ZACK INTERROGATORIES f n ,

Background .,,

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On December 4, 1981, Zimmer Area Citizens /Zimmed Area Citizens of Kentucky ("ZAC/ZACK") submitted three sets of interrogatories to Clermont County, the Commonwealth of Kentucky, participants in the captioned proceeding pursuant to 10 C.F.R. S2.715c, and the Applicants, The Cincinnati Gas & Electric C o m p a n y ,. e t al. The first 147 questions of the three sets of interrogatories were identical. Clermont County. had additional interrogatories numbered 148-188. The Applicants also were sent interrogatories No. 148-164 which were different from the corresponding by numbered Clermont County interrogatories. Considerable time and effort were expended in responding to these numerous and interrogatories, many with subparts, with all three involved entities cooperating to provide as much information as was possible in the' time alloted under the pso3 J

Commission's Rules of Practice.

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The responses to the icterrogatories are being sent out under separate cover.d# Extensive efforts to respond to the interrogatories have been made.in order to avoid delay in the proceeding even though many of the

-interrogatories _were objectionable under the NRC's Rules-of Practice and precedents. However, in a number of cases, the information was not in the possession of respondent, the-information was not available to it upon inquiry, or it would have required extensive research and significant' compilation of data to respond. Thus, in accordance with 10 C.F.R. 52.740b(b), for the reasons discussed below, the interrogatories listed on the attached table are objectionable 2/ and an appropriate protective order that the requested discovery not be permitted should be issued.

Argument It is well settled that discovery, while a means for determining the facts and information available to another party, may not be requested so as to require J/ Because of the nature of the questions, Applicants have. reviewed the responses of Clermont County and the Commonwealth of Kentucky to the first 147 interrogatories and have have adopted these answers and have responded to the remainder of the interrogatories addressed to them.

2/ While many of the interrogatories to which objection has been taken have been substantially answered,.to protect the record, objection has been taken when a single entry has not been provided. The objection should be understood to reach only to information not obtained.

4 another party to generate new information not already available, produce new documents not already in l

existence, or perform new studies or analyses not previously conducted. For example, the Appeal Board quoted with approval the following explanation by the Licensing Board to intervenor as to its discovery i obligations:

i In respanding to discovery re-quests, a party is not required to engage in extensive independent research. It need only reveal in- -

formation in its possession or control (although it may be re-quired to perform some investiga-tion to determine what information it actually possesses). Assuming truthfulness of the statement,-lack of knowledge is always an adequate response. _3/

, To the same effect, the decieion in Boston Edison Company (Pilgrim Nuclear Generating Station, Unit 2),

4 LBP-75-30, 1 NRC 579 (1975), where the Licensing Board cited the basic principle enunciated by Professor Moore:

While a party must furnish in his answer to interrogatories whatever information is available to it, ordinarily it will not be required

_3/ Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 j NRC 317 (1980).

"to make research and compilation of data not readily known to him." J/

In the South Texas antitrust proceeding,-the Board sustained the Applicant's objection to a discovery request that it prepare a map _that it did not_ possess in the normal course of business. The Board stated: "A party may require the production of an existing document for discovery purposes, but it cannot require the preparation of a document it merely wishes were in existence." 5_/ To the same effect is the language from the UCLA Research Reactor case, where the Board, in offering guidance on discovery obligations stated:

We do not ask Applicant to fabricate information from the past or engage _in an effort to reshape its records to.the Intervenor's categories, but simply to be open and candid as to the details of all existing records. 6/

-4/ 1 NRC at 584. The Board added that "even if.the information could be obtained through an excessive amount of research and at great expense," it appeared from the interrogatories at issue that the answers "would probably only yield information of such slight decisional significance and weight, and would be so remote in time and substance from the central issues in this case" as to be irrelevant.

_Id . at 585.

-~5/ Houston Lighting & Power Company (South Texas Project, Units 1 and 2), Docket Nos. 50-498A and 50-499A, " Order Concerning Staff's Motion to Compel Further Answers" (April 16, 1979) (slip op. at 2) .

6/ Regents of the University of California (UCLA Research Reactor), Docket No. 50-142 OL, " Order" (December 22, 1980) (slip op. at 4) .

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, In a subsequent decision,-the Board reiterated "that the Applicant is not required to create. new information or engage in a work effort to reshape its records _to the Intervenor's categories."1! Most recently, the Licensing- Board in San Onofre rejected a discovery request that would have required the Staff "to perform rather extensive analysis in order to reach any worthwhile conclusions." 8_/

It has also been stated that the party cannot' utilize discovery so as to relieve. itself of its responsibility to 60 its own pretrial work or to develop its proof on conter.ted issues. Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), Docket Nos. 50-445 and 50-446, " Order" (July 28, 1981) (slip _ op. at 2) .

Thus, the enumerated interrogatories require l significant research not required under the Commission's rules in order to compile the requested information. A i

few examples will suffice to demonstrate this.

Interrogatory No. I addressed to Kentucky required that_a number of different police departments be contacted with i a number of points of information required for each t

l 7/ UCLA Research Reactor, supra, " Order Belative to Intervenor's Supplemental Motion to Corapel" (March 10, 1981) (slip op. at 2) .

-8/ Southern California Edison Company (San Onofre

Nuclear Generating Station, Units 2 and 3), Docket Nos. 50-361 and 50-362 OL (May 21, 1981) (slip op. at 1

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separate and independent police department. Information not in the possession of Applicants, or the Commonwealth of Kentucky in the form requested, was sought from the individual police departments, but some stated the information was not available or declined to give it.

Such pursuit of the information is more than required by the NRC Rules of Practice to respond to interrogatories and thus it is objectionable. As a further example, Interrogatories Nos. 67-70 and 72-77 to Kentucky request detailed information concerning hospitals listed in the emergency plan. This information is not in the possession of the Commonwealth (or the Applicants) , would take extensive research to compile and should not be required.

As a third example, Interrogatories 84-88 to Clermont County call for detailed information regarding location of barns and stables. This information is simply not in the possession of Clermont County (or the Applicants), and it would be unreasonable to require a survey by it to determine these locations. This information is as easily obtainable by intervenor ZAC-ZACK.

Conclusion The listed interrogatories are objectionable and discovery as to these, other than what has been provided in the respective responses, should not be had. The

Applicants are authorized to state that counsel for the Commonwealth of Kentucky and Clermont County join in this objection and request for a protective order to . the extent of their listed interrogatories to which objection has been taken.

Respectfully submitted, CONNER & WETTERHAHN l

Mark J. Wetterhahn Counsel for the Applicants December 23, 1981 9

I 3 INTERROGATORIES.TO WHICH OBJECTION IS TAKEN 1

Kentucky Clermont' County Applicants i

1-3 3 156 i 8- 20 158 19-20 36-37 35-38' 42 62-70 46 72-73 50 75-77 72 i 84-88 84-88 91-93 91-93 96 96-100 100 106.

105-109 117 117 131 123 147-150 145-147 167 169

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