ML20039D731

Objections to Certain Zimmer Area Citizens-Zimmer Area Citizens of Ky 811215 Requests for Admissions.Certificate of Svc Encl

ML20039D731
Person / Time
Site:	Zimmer
Issue date:	12/30/1981
From:	Wetterhahn M CINCINNATI GAS & ELECTRIC CO., CONNER & WETTERHAHN
To:	ZIMMER AREA CITIZENS - ZIMMER AREA CITIZENS OF KY
References
NUDOCS 8201060069
Download: ML20039D731 (7)

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/ i UNITED STATES OF AMERICA SIO *14 NUCLEAR REGULATORY COMM SSION.

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In the Matter of )

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The Cincinnati Gas & Electric ) Docket No. 5.01 ,

Company, et al. )

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(Wm. H. Zimmer Nuclear Power ) 204 Station) ) _l[

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APPLICANTS' OBJECTIONS TO '

70 ZAC-ZACK REQUESTS FOR ADMISSIONS '

Background

On December 15, 1981, Zimmer Area Citirens/Zimmer Area Citizens of Kentucky ("ZAC/ZACK") submitted a set of 80 requests for admissions to Applicants. A response to most-of the requests will be 'ade under separate cover. Several of the requests, however, are objectionable as impermissibly seeking an admission on conclusions of law or as .to mixed-questions of law and fact, or impropdrly seeking opinions by posing requests that cannot be admitted or denied without explanation. Applicants therefore object to these particular requests as beyond the scope of the Commission's rules of discovery, in particular, the provisions of 10 C.F.R. 52.742 regarding requests for admissions.

Argument Under the Commission's rules for discovery regarding requests for admissions in 10 C.F.R. 52.742(a) "a party may file a written request for the admission of the genuineness gs0 8201060069 811230' 5 PDR ADOCK 05000358 o PDR l l-

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and authenticity of any relevant document described in or attached to the request, or for the admission of the-truth of any specified relevant matter of fact." (Emphasis added.)

It is important.to understand that~ the NRC provisions for requesting admissions are based upon Rule 36 of the Federal Rules of Civil Procedure prior to its amendment in 1970 and thereafter. It is therefore appropriate to examine the cases and treatises ' interpreting Rule 36 in its original form as an aid to- construing .Section 2.742. .See Commonwealth Edison Company (Zion Station, Units'1 and 2),

ALAB-196, 7 AEC 457, 460 (1974).- !

i As Professor Moore has indicated, the purpose - of- the 1970 version of Rule 36, after which 10 C.F.R. S2.742 was patterned, was to serve as a means of establishing essentially uncontroverted facts. Accordingly, as Professor Moore notes, a request for admissions under prior Rule 36-must deal with factual matters, woufd not involve what are essentially questions of law, could not deal with opinion, and must be susceptible of an admission or denial "without

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1/ Thus, while the Commission discovery rules were broadened in 1972 to reflect changes in the Federal Rules (see 37 Fed. Reg. 15128, 15134 (July 28, 1972)),

the Commission did not adopt the~ changes made in Rule 36 which thereby authorized a party to seek admissions "that relate to statements or crf.nions of fact or of the application of law to fact . . . . Instead,'the Commission rule continues to be limited to requests for admissions as to "any specified relevant matter of fact."

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. . u qualification or explanation." 2/ The cases likewise recognize that Rule 36, in ' its original form, sought to.

expedite trial -by- obtaining- agreement on essentially

. undisputed, relevant facts.- Burns v. Phillips, 50 F.R.D.

187'(N.D. Ga. 1970).

g Thus, requests could only seek the - admission of.

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undisputed matters of fact, and could ne'. c seek admissions.on

' conclusions of law or as to mixed ~ questions of law and fact.. .

Such impermissible inquiries as to issues of- law _ were r

rejected as a proper basis'for requests for admissions in Driver v. -Gindy' Manufacturing Cora, 24 F.R.D. '.473,. 475 (E;D. Pa. 1959), as a " misuse - of Rule 36." See also

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Fidelity Trust' Company v. Village of Stickney, 129 F.2d 506, 511l .(7th ' Cir. ' 1942) ; Lantz v. New York Central-R.;Co., 37 4

F . R. D . . 69 (N.D. Ohio 1963). It is therefore clear that under the unamended~ form of Rule 36, upon which the NRC rule is based,. requests for admissions refating to conclusions'o'f law or mixed questions of 1.aw and fact'are objectionable.

Even under the Commission's broad discovery rules,_it is well settled that " interrogatories seeking legal.

conclusions 1 are improper." Boston Edison Company (Pilgrim l

Nuclear Generating Station, Unit 2), LBP-75-30, 1 NRC 5 7.9 ,.

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588 (1975). Interrogatories and requests for admissions

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. seeking legal. conclusions were also rejected by the Board in

_ 2_/ 4A Moore's Federal Practice S36.04(1] (2d'ed. 1981).

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US Ecology, Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), Docket No. 27-39, "Prehearing Conference Order and Order Ruling on Discovery Requests, Objections and Motions" (February 25, 1981) (slip op. at 2).

As the Appeal Board reiterated recently in.the Susquehanna proceeding in explaining the scope of proper discovery, the NRC' discovery rulet., permit only " requests for admissions of fact."

As a related principle governing- requests for admissions, a party may not seek opinions or otherwise pose matters that cannot be admitted 'or denied without qualification or explanation. Kasar v. Miller Printing Machinery Co., 36 F.R.D. 200, 203 (W.D. . Pa . 1964); Waider v.

Chicago, R.I.&P.R. Co., 10 F.R.D. 376, 378 (S.D. Iowa 1950);

In re - Reinauer Oil Transport, Inc., 19 F.R.D. 5 (D. Mass.

1956). .

Accordingly, based upon the go[erning legal principles and precedents, Applicants object to ZAC/ZACK's Requests for Admissions Nos. 26, 28-35, 38, 54, 57, 59, 61, 63 and 64.

These requests clearly call for Applicants' conclusion as to the content or application of state law and as such impermissibly seek ' legal conclusions, or they seek opinions by making statements which cannot be admitted or denied J/ Pennsylvania Power & Light Company (Susquehanna Steam Electric Station,-Units 1 and 2), ALAB-613, 12 NRC 317,

! 322 (1980).

d without some qualification or explanation. An example of the.former is Request for Admission No. 30, which would, by way'of admission, seek to define the legal authority of.the Sheriff of Clermont County. This is clearly prohibited under the cited authority. An example of the latter is Request for Admission No. 57, which requests an admission that a particular roadway is " narrow,' winding and hilly in many parts." This statement is so subjective and susceptible to so many interpretations that. a simple

" admitted" or " denied" is not possible. This is not a proper request for admission.

Conclusion 2

For the reasons discussed more fully above, the aforementioned requests for admissions are objectionable and need not be answered. Furthermore, a' protective order that the objectionable discovery not be had should be entered.

Respectfully submitted, CONNER & WETTERHAHN Mark J. Wetterhahn

. Counsel for Applicants December 30, 1981

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In.the Matter of )

)

The Cincinnati Gas & Electric') Docket No. 50-353 Company, et al. )

)

(Wm. H. Zimmer Nuclear Power )

Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Objections to ZAC-ZACK Requests for Admissions,"

and " Applicants' Objections to 'Intervenor Zimmer Area Citizens-Zimmer Area Citizens of Kentucky Requests for Admissions by Applicant'" both dated December 30, 1981, in the captioned matter, have been served upon the following by deposit in the United States mail this 30th day of December, 1981:

Judge John H. Frye, III Chairman, Atomic Safety Chairman, Atomic Safety and and Licensing Board Licensing Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory j Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Frank F. Hooper Charles A. Barth, Esq.

Administrative Judge Counsel for the NRC Staff Atomic Safety and Licensing Office.of the Executive Board Legal Director School of Natural Resources U.S. Nuclear Regulatory University of Michigan Commission Ann Arbor, Michigan 48109 Washington, D.C. 20555 Dr. M. Stanley Livingston Mr. Chase R. Stephens Administrative Judge Docketing and Service 1005 Calle Largo Branch Sante Fe, New Mexico 87501 Office of the Secretary U.S. Nuclear Regulatory Dr. Lawrence R. Quarles Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Chairman, Atomic Safety Commission and Licensing Appeal Washington, D.C. 20555 Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Deborah Faber.Webb, Esq. David K. Martin, Esq.

7967 Alexandria Pike Assistant Attorney Alexandria, Kentucky 4100 General-Acting Director Andrew B. Dennison, Esq. Division of Environmental Attorney at Law Law 200 Main Street Office of Attorney Batavia, Ohio 45103 General 209 St. Clair Street James R. Feldman, Jr., Esq. Frankfort, Kentucky 40601 216~ East Ninth Street Cincinnati, Ohio 45202 George E. Pattison, Esq.

Prosecuting Attorney of John D. Woliver, Esq. Clermont County, Ohio Clermont-County 462 Main-Street.

Community Council Batavia, Ohio 45103 Box 181 Batavia, Ohio-45103 William J. Moran, Esq.

General Counsel The Cincinnati Gas &

Electric Company -

P. O. Box 960-Cincinnati,-Ohio 45201 N& "

Mark J. Wegterhahn

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