ML20039D702
| ML20039D702 | |
| Person / Time | |
|---|---|
| Site: | Wolf Creek  |
| Issue date: | 12/30/1981 |
| From: | Gleason J Atomic Safety and Licensing Board Panel |
| To: | CHRISTY, W., KANSAS GAS & ELECTRIC CO., SALAVA, M.E., INTERVENOR |
| References | |
| ISSUANCES-OL, NUDOCS 8201060028 | |
| Download: ML20039D702 (5) | |
Text
Ia CUEir UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION'81 OcC 31 P2:47
' ATOMIC SAFETY AND LICENSING BOARD -
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James P. Gleason, Chairman Dr. George C. Anderson Dr. J. Venn Leeds
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s r-e;na In the Matter of KANSAS GAS AND ELECTRIC COMPANY U g 5 G3 Y I9 Docket No. 50-482 OL ET AL.
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7, December 30, 1981 (Wolf Creek Generating Station, p
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< /j MEMORANDUM AND ORDER ON MOTION TO COMPEL This Order relates to a motion filed by the Applicant - recently renewed after informal and unsuccessful efforts to resolve a discovery dispute - to compel answers to interrogatories from Ellen Salava and Wanda Christy (Intervenors).
The interrogatories were served on August 19, 1981. The Applicant filed it's motion on October 8,1981 and renewed it on December 15, 1981.
Background
The Intervenors involved here share a contention challenging the The adequacy of State and local government emergency evacuation plans.
Applicant submitted a number of interrogatories relating to the contention and Intervenors replied to half claiming an impossibility in answering the remainder due to the incompleted status of State and local governnient emergency plans.
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8201060028 811230' PDR ADOCK 05000482 O
o The Applicant argues that copies of the existing Applicants, State and local government pla~ns have been furnished to Intervenors; that the Coffey County plan has since been approved by the local government, and nevertheless no right exists to withhold answers based on the status of emergency plans which ar~e subject to continuous changes and refinements.
Responding to Applicant's motion, Intervenors assert a willingness to respond when State and local government plans are adopted by those governments; that the emergency plans furnished Intervenors were not. complete as yet, and indicate that requiring responses prior to formal adoption of the plans would be burdensome and a wasteful use of time. Citing cases supporting the Courts power to prevent discovery from becoming unjustifiably burdensome under Rule 33 of the Federal Rules of Civil Procedure, the Intervenors also point to discretionary authority under Rule 33(b). This authorizes Judicial post-ponement, where warranted, of responses to interrogatories involving opinions The or contentions that relate to fact or the application of law to fact.
Intervenors request such a delay as an acceptable alternative, and cite commentary in Moores Federal Practice on the rationale for such postponement as being applicable here, "so that the interrogated party will not be forced into fixing his contentions without adequate information." 4A Moore's Federal Practice, (1980 ed.), Para. 33.17(2) at p. 33-96.
Principles of Law The Commission's regulations provide for the discovery process in 10 CFR 2.740-2.744 and are modeled on the Federal Rules of Civil Procedure.
Both in administrative and legal practice, pretrial discovery is liberally granted to all parties to permit relevant facts to be ascertained, issues refined and to enable litigants to prepare expeditiously for a hearing or trial. See Pacific Gas and Electric Co. (Stanislaus Project), LBP 78-20, 7 NRC 1038,1040 (1978). Discovery rules are to be accor'ded a br,oad and liberal treatment and parties cannot be precluded from inquiring into the facts underlying their opponents case. Hickman v. Taylor, 329 U.S. 495, 501, 507 (1947).
f.,
. The scope of discovery under the Comission's regulations carries out the same expansive treatment afforded the procedure under the Federal Rules:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, whether it relates to the defense or claim of the party seeking discovery or to the claim or defense of any other party.. 10 CFR 2.74C(b)(1).
In regard to the sufficiency of replies tc interrogatories, answers must be complete, explicit and responsive. Lack of complete or partial knowledge does not excuse failures in responding since the party receiving interrogatories must answer to the best of his ability and provide whatever information is Boston Edison Co. (Pilgrim Station, Unit 2),'
available to him at the time.
LBP-75-30,1 NRC 579, 583 (1975).
Under Rule 33(b) of the Federal Rules of Civil Procedure, interrogatories that call for opinions or contentions that relate to facts or the application of law to a fact are no longer objectionable. As indicated, 1 Judge is authorized where necessary to defer such answers until other discovery has been completed. However, the explanation in Moore previously cited that a party will not have to fix "his contentions without adequate information" 90es more directly to the issue of whether such interrogatories should be admitted at all. Under prior pleading practice [before adoption of Rule 33(b)] answers to questions on opinions often had the effect of chaining a party to misconceived contentions. See Notes of Advisory Committee on Under Rules,1970 Amendment, Rule 33, Federal Rules of Civil Procedure.
modern discovery, the Rules cannot be used as a tactical device for tying a litigant down to a disadvantageous position. A party is not bound by ansvers to interrogatories where subsequent investigation discloses new facts and parties thereaf ter can supplement their answers or produce contradictory evidence at the hearing or trial.. 4A Moore's Federal Pra'c-tice ff 33-182.
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Conclusion Applying the foregoing to the facts of the dispute, it is clear that Intervenors cannot evade their responsibility to respond to the Applicant's interrogatories. The Commission's Rules on intervention operate with more than a supposition that the parties have some specific factual bases for their contention.
[See Section 2.714(b)]. The interrogatories in question related directly to the emergency planning contention of Intervenors and attempted to uncover whatever factual support for their position existed.
To permit Intervenors to avoid responding on the ground that their answers could be possible only after State and local governments have furnished approved emergency plans would be tantt.nount to approving their interventidn in this proceeding without a valid contention. As indicated, lack of complete knowledge is no excuse for not supplying what knowledge a party possesses in responding to discovery requests. And since both intervenors have some back-ground in emergency planning, and the current plans of the Applicant, State and local government have been furnished to them, there appears to be no reason why responses adequate to satisfy discovery requirements cannot be submittedN.
On the Intervenor's claim that the emergency plans are not final, there is no requirement in NRC Regulations that emergency response plans must have reached this stage of resolution at this point in the proceeding.
Emergency preparedness requirements for nuclear power plants require the coordinated assistance and cooperation of two Federal Agencies (Feceral Emergency Mana:e-ment Agency and the Nuclear Regulatory Coninission) and the respective State and local governments involved.
It is inherent in the review and approval of the adequacy of the Applicant's, and State and local government emergency plans which must be accomplished before an operating license is granted, that such plans will undergo constant and continuous revision., This has been M n answers to other interragatories, both intervenors reported personal Iwork experience on emergency preparedness for Coffey County in the development over several years of the County's Contingency Plan for the Wolf Creek facility.
See responses to Applicant's interrogatories, 1-4.
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the process in every operating license proceeding to date.
In publishing it's final rule on emergency planning (45 Fed. Reg. 55402, August 19,1980) which became effective on November 3,1980, the Commission not only provided new criteria and standards to guide the development of on-site and off-site emergency plans, but required that such planning be tested on a periodic basis to identify and correct any weaknesses discovered. And even though there has been no demonstration of a likelihood of the Commission waiving deficiencies in emergency plans, the regulations do provide that failure in meeting such standards is not necessarily fatal to licensing.
See 10 CFR 50.47 (c)(1).
Pursuant to the foregoing, the Application's motion to compel the Intervenor's response to the interrogatories submitted is granted and the answers shall be submitted within ten days of service of this Order.
FOR THE ATOMIC SAFETY AND 1.ICENSING BOARD f
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/ e M-Chairman
/ James P. Gleason
/ ADMINISTRATIVE JUDGE J
Bethesda, Maryland December 30, 1981
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