ML20042C520
| ML20042C520 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 03/25/1982 |
| From: | Doherty J DOHERTY, J.F. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8203310479 | |
| Download: ML20042C520 (8) | |
Text
UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION March 25, 1982 BEFORE THE ATOMIC SAFETY'AND LICENSING BOARD N3-t In the Matter of:
HOUSTON LIGHTING & POWER CO.
Docket No. 50-4D6 CP 29 'P1 T3 (Allens Creek Nuclear Generating Station, Unit 1)
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INTERVENOR DOHERTY'S MOTION TO COMPEL DISCOVERY FROM APPLICANT AND MOTION TO POSTPONE EVIDENTIARY PRESENTATIONS AT THE APRIL 12, 1982 SCHEDULED HEARINGS On Wednesday, March 23, 1982, this Intervenor received two legal papers: " Houston Lighting & Power Company's Answers and Objections to Doherty's Second Set.of Interrogatories" and " Houston Lighting & Power Company's Answers and Objections to Doherty's Third Set of Interrogatories". These are the subject of the instant motion, which is filed under 10 CFR 2.740(f) of the Commission's Rules'of Practice.
The " Answers and Objections" reply to a total of 176 questions to Appli-
-l cant by this Intervenor.
In them, Applicant has objected to 129 of the questions, and filed various degrees of adequacy answers to 47 of them.
In its two " Answers and Objections" Applicant has failed to heed the Board's Order of January 28, 1982, and has failed to observe the relevant Federal rule of civil procedure, Rule 26(b)(1), applicable. to this proceeding. The two failures are significant, deprive this Intervenor of the valuable right of discovery almost completely;and require rectification before any evidence taking on the subject of the discovery, as will be shown below.
Although Applicant states on Page 2 of each o'f'the subject f
" Answers and Objections", that, "...{,t]he limited issue to be explored in this reopened proceeding is how the Quadrex Re-port, and snecifically the matters labled (A) through (0) in Doherty's December 7,1981 reflect upon the technical qualifi-l cations
.of HL&P to oversee the design and constructio the]4 l
ACNGS", this guidance has not.been followed by Appli
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cxample, in item 29 of the.second set, Applicant objected to the question, " Prior to the Quadrex report, was Appli-cant aware that B&R had a continuing policy of assuming work performed by suppliers such as EDS Nuclear and West-l inghouse could be assumed correct? (See: Report p. 3-3)*
This objection was filed even though item E of this Inter-venor's December 7, 1981, filing directly mentions and con-tends that a B&R policy of, " assuming that work performed by major subcontractors or suppliers was correct", shows a bechnical qualification deficiency in HIAP.
Therefore,
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this Intervenor moves the Board order Aonlicant to answer item 29 of his Interrogatory set 2 and item 29's three subouestions, in a responsive manner, because they are I
l relevant to a contention in this proceeding,
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The next example of Applicant's unreasonable avoidance of discovery by relevance of objection is in its reply to item 8 of set 3.
This item has three questions on design j
manuals.
Item M of this Intervenor's December 7, 1981 filing j
specifically mentions a Quadrex finding of failure to require design manuals, yet Applicant in reply implies'(." Answers. and
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Objections" to Set 3, p.11) that to know if it (Applicant) knew prior to the start of construction at STNP that B&R
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l would not require manuals at that site, would be irrelevant and no use in determining its technical qualificatons for this licensing, as well as vague; that to know if design manuals would not be required at ACNGS would be irrelevant and is too vague to answer plus too much trouble and expense to find out; and that to know if Applicant ever suggested these manuals to B&R in irrelevant to determining if HL&P had the technical qualifications for constructing ACNGS in addi-l tionito.too vague to answer.
Applicant's refusal on each of these is incomprehensible.
With regard to part (a) of item 8, an answer of "yes" would inform the Board and partiesbow seriously the Applicant took the idea there would be no re-i quirement for design manuals..If (b) were answered "yes" the Board and parties would know that Applicant thought the idea of not requiring design manuals at the ACNGS site was satisfactory even though the Quadrex reviewers reached a
- ocntkry, conclusien with anothar Applicant man ^ged nualcar plant construction cito.
If (c) were ancwared the P)ard l
and Parties would know if Applicant tihought having design manuals was enough of a concertito suggest as a requirement, design manuals for B&R, or it did not.
From these a path toward understanding Applicani;'s technical qualifications with regard to estimating the necessity for design manuals for designers could be started.
And doing that is part of discovery and; relevant to this Intervenor raised issue.
Therefore, this Intervenor moves that the Board order Appli-cant to answer resoonsively item 8 of set 3 in its entirety.
The above are two examples where Applicant has denied information on the basis of relevance of questions clearly i
based on sections of'the Quadrex Report which were contentions in this Intervenor's December 71 t1981,.f111ng andmahe'.henceiprima facie relevant.
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However, these above two are, like the Quadrax Report itself, a s' ample.
In addition, the Applicant has objected l
on the basis of relevanceto the following Doherty Interrog-i atories from the Second and Third Sets.
From Set 2, these Item 10, subparts (a), (c), (f), (g),'and from Set 3, are:
item 3, 6, and'6(c)..,These.In'terrogatories were based on sections of the Quadrex Report on which this Intervenor i
raised contentions on December 7, 1981, and on specific l
aspects of design problems. mentioned in.the Qaadrex Report sections, l
and in the Contentions. Therefore. this Intervenor moves that the Board order Aoplicant to answer responsively from Set 2, i
item 10(a). (c). (f). (st), and froc Set 3. item 3. 6. and 6(c).
i Next, Applicant has objected to many Interrogatories
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based on "Quadrex Questions" (that is in Vo1M II and'Vol. III of the Report) cited in the sections of the Report referenced in parts (A) through (0) of this Interven'or's December 7, 1981 l
filing, on the basis of relevancef For example, Applicant i
objected on the basis of relevance to items 4(a) and.4(b) of r.
p Set 3 even though the Quadrex Question E-5 is cited in l
Section 3-1(g) of the Report, and that.:is'the same section cited in part M of this Intervenor's December 7, 1981 filing.
In that 'iling, this Intervenor pointed out that Quadrex
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had stated the STNP design was not based on a " desirable well-thought out and consistent basis for design."
To support this, Quadrex noted that Westinghouse apparently had not reviewed B&R revisions of the ESF sequencer, basing that on material in question E-5 But, Applicant b'elieves the issue of its technical competence will not be Turthered toward answer if (a) it is known if Applicant knew about this problem prior to Quadrex, and (b) 'it isiknown what the current industry practice is.
This is not sensible in this Intervenor's view, because if the parties co'uld learn through discovery if the Applicant knew prior to Quadrex about the problem, they would be aided in knowing how alert Applicant was to the problem. Awareness of technical prob-lems is certainly an area of technical competence. Knowledge of industry practice places the Board and parties in a better position to judge if this lack of review is a' severe or minor or even insignificant judgement lack on the part of the Appli-cant.
Therefore, this Intervenor maintains these suboarts of M em 4 of Bet 3 should be answered by Apolicant and moves the Board order it to do so.
A second example of unreasonable objection to an Interrog-atory based on a Quadrex question cited in a section of the main body (vol. I) of the Report, and this Intervenor's Decem-ber 7, 1982 filing occurs in answer to item 13 of the Second Set of Interrogatories.
In that answer, despite the fact that this Intervenor specifically mentioned the Quadrex finding that technical groups at STNP had not consistently reviewed input data for reasonableness prior to useM, Applicant nevertheless found a question with regard to data use checking sited in section 3-1(b) of the report which mentions in turn question l,
,H-27 of the Report, irrelevant.
It's impossible to view with l
magnanimity the position that an Intervenor may question the general findin5, but that the specific examples are irrelevant.
Yet, Aoplicant has done that here.
Hence, this Intervenor moves the Board order Aeolicant to responsively reolv to this Inter-venor's item 13 of Set 2, and to any other items which site
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ouestions in the Reoort which are cited as examnles in the Y
art C of this.Entervenor's December 7,1981, filing.
P
r report sections which are part of the Contentions of the
'Doherty December 7, 1981 filing.
These are: 3-1(a), 3-1(b),
3-1(b)(2), 3-1(b)(3), 3-1(c), 3-1(a), 3-1(a), 3-1(f), 3-1(g),
3-1(h), and 3-1(j).A' The foregoing represents a last minute effort to bring before the Board the position the Applicant has taken w'ith regard to'two sets of Interrogatory Questions and is likely
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to take in the f interrogatory sets remaining to be answered plus a' single set of Requests for Admissions.
As the sched-ule calls for a hearing on April 12, 1982, and none of these sets are due until March 28, 1982, there will not be time for them to be successfully objected to.
There are numerous other objections by Applicant to the two sets of questions.
Any reader here, must realize from the forgoing, that a specific motion to comoel against each objection raised would require a virtual 3 Odyssey.
However, before moving to the second part of this Motion, this I'tervenor would point out-there are important things n
this Board has said with regard to this contention that re-quire consideration in considering if Applicant has pursued an excessively restricted view of relevance with the Quadrex Report and discovery by this Intervenor.
First, in its Order granting the renewed motion on the Applicant technical qualifications issue,. the Board stated (Judge Cheatum, dissenting), "If problems due to B&R's actions or inaction were encountered at the South Texas Project despite HL&P's supervision, the Board most certainly wants to know what specific corrective or preventive procedQr'es HL&P l
will follow to assure that these problems will not recur at Allens Creek.
A fortiori, the matters discussed in the Quad-rex Report do not exceed the thrust of TexPIRG's contention which questions Applicant's technical qualifications." (Order,
- p. 3)
These statements by the Board appear to have been
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1 Note: this is the " actual j", not the "d" that sh'ould be "i".
ignorcd by tho Applicent in tho two "Answors and Objections" we have discussed here, as can be seen by examining items from Doherty Interrogatory Set #2: numbered:10, 10(a), 10(c),
10(e), 10(f), 10(g), 10'(h), 10(j), 11 ("first question"),13, 19(a), 19(b), 19(c), 23(a) through 23(i), 24, 24(a) through 24(d),
i 25(a), 25(b), 26(a), 26(b), 26(c), 26(d), 26(d)(1), 28, 29,
.,29(a), 29(b), 29(c), 30, 30(f), 30(g), 31(d), 32(e), 32(f),
'33, 34, 3.4(d), 34(e), 34(f), 34(g), 34(h), 35(c), 35(d), 36(a) i through N(i), 38, 38(a), 39(a), 39(b), and from Doherty Inter-rogatory Set,#3 numbered: 1(b), 1(c), 3,4(a), 6, 6(a), 6(c),
8(a), 8(b), 8 (c), 9,10,11,12(b),12(c),13,14,15,15(a),
15(b),18,18(a),18(b),18(c), 20, 21, and 22.
Second, the Federal Rules of Civil Procedure provide j
(Rule 26(b)(1)) that infornation sought will be discoverable if it"..{a]ppears reasonably calculated to lead to the dis-covery of admissible evidence." The Board's statement, and l
the Federal Rules, both show that Applicant's relevancy,
standard is'too narrow to permit a fair opportunity for this Intervenor to prepare for cross examination and other aspects of being the-lead party on the technical qualifications issue.
Therefore, this Intervenor moves the Board order Apolicant to reply resnonsively to the items from Doherty Interrogatory r
Setsi2 and 3. as listed in the last sentence in the immediate preceeding paragraph.
It is clear that' Applicant, unless ordered to the con-l trary, will follow the same standard with the remaining fo'ur sets of interrogatories and single. set of requests for admis-sions (March 23, 1982) which will give this Intervenor meagre
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j discovery for the evidentiary phase.
Within, this"Intervenor j
has shown this meagreness is the fault of the Applicant and
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that Applicant has not followed the Board.'s guidance on the Quadrex Report. Applicant has shown no justification for its lack of responsiveness, and if no remedy is permitted, this Interrenor will have been and will be prejudiced in one of:his righte l
of participation.
This Intervenor maintains the Board' Order l
of January 28, 1982, and the Federal Rule of Civil Procedure, Rule 26,.gustified his expecting responsive replies to the
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great majority of his interrogatories, as argued:.above. And
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further, that today is the last day in which any motion l
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1 7-to compal discovery may bo filed on this probable final i
i issue in the construction license proceeding.
I Because Applicant has chosen to object broadly to this
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Intervenor's interrogatories, this Intervenor moves the Board postoone the evidentiary hearing on the fifteen issues raitg by this Intervenor through the May 19_81 Quadrer Repegaubmitted on December 7. 1981, until such time as Applicant has answered responsively and in comoliance with the Board's Order of Jan-uary 28, 1982 and the Federal Rules of Civil Procedure..the i
Doherty Interrogatory Sets Two and Three, and the outstanding four sets of Interrogatories and single set of requests for admissions, which were served on or prior to March 23, 1982.-
This Int'ervenor therefore preys that each of the above motions be granted.
This Intervenor has worked diligently at discovery (see the enclosed letter to the Board) but more importantly, the Applicant has been showrihere to have inter-j i
preted the discovery rules to its great tactical advantage, j
to wit, it may avoid replying to many questions.
This advantage appears to fit the same desire not to reveal the existance of the Quadrer Report itself, a topic the Board raised independently in its January 28,1982, order.
If Appplicant is permitted not to answer these albeit many questions, and the acheduled Apiil:127'1982-hearings'b'egin -
on that date, this Intervenor's right of discovery will be violated, and the Board will reward circumvention of the very administrative process of which it is a part.
Respectfully,
$h John F. Doherty, Intervenor 713-747-1837(H);713-749-1566(W) se bh h
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CERTIFICATE OF SERVICE I certify that xerox copies of *INTERVENOR DOHERTY'S MOTION TO COMPEL DISCOVERY FROM APPLICANT AND MOTION TO POSTPONE EVIDENTIARY PRESENTATIONS AT THE APRIL 12, 1982, SCHEDULED
- HEARINGS, ere served via U. S. Postal Service (First Class) this QJi of March, 1982 from Houston, Texas, on the parties below.
Sheldon J. Wolfe, Esq. Administrative Judge Gustave A. Linenberger, Administrative Judge Dr.~ E. Leonard Cheatum, Administrative Judge Richard A. Black, Esq., Staff Counsel J. Gregory Copeland, Esq. Applicant Counselij Jack R. Newman, Esq.
Applicant Counsel Chase R..Stephens, Docketing & Service, USNRC Atomic Safety Licensing & Appeal Board (ASLAB)
The Several Intervening Parties Respectfully, A
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([/ohnF.Doherty I.
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6 Counsel Copeland was served by hand delivery, March 2%,
1982, at the offices of Baker-Botts, Suite.3000, One Shell Plaza, Houston, Texas, 77002.
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