ML20043C288
| ML20043C288 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 05/22/1990 |
| From: | Janson K VERMONT, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#290-10390 OLA-4, NUDOCS 9006050010 | |
| Download: ML20043C288 (56) | |
Text
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1 UOLhLIED U5NHC
' UNITED STATES OF-AMERICA-NUCLEAR REGULATORY COMMISSION
- W MM 24 P1 :59 before the ATOMIC SAFETY AND LICENSING BOARD
' OUICE OF SECRETARY -
DOCK [ltNG & S[HVl(1 BHANCli In the' Matter of
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VERMONT. YANKEE NUCLEAR
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Docket No. 50-271-OLA-4
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. POWER CORPORATION-
)-
(Operating License-
)
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(Vermont Yankee-Nuclear
)
Power l Station)
)
STATE'OF VERMONT ANSWER IN OPPOSITION TO l
VERMONT YANKEE NUCLEAR POWER CORPORATION j
SECOND MOTION TO COMPEL AND STATE OF VERMONT i
APPLICATION FOR' PROTECTIVE ORDER Introduction j
1 On May 2,.1990, the' Vermont Yankee Nuclear Power h
. Corporation (" Vermont Yankee") served by first-class mail a
" Motion to Compel Answers to Interrogatories (VYNPC Set No.
'2)"~(hereinafter referred to as the " Motion to compel").
Pursuant to 10 C.F.R. SS 2.730(c) and 2.740(c), the State of Vermont (" Vermont")-files.this Answer in opposition to Vermont Yankee's Motion to Compel and this application for protective order.
This Answer will demonstrate that the l
Atomic Safety and-Licensing Board (" Board") should reject i
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Vermont Yankee's Motion to Compel and grant Vermont's.,
i t application,for.protectiveforder contained herein.
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'This~ Answer.is organized in the following' manner:
Part I i
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d addresses two general arguments that-appear throughout 1
' Vermont Yankee's Motion to Compel; Part II provides
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Vermont's' positions on groups of. interrogatory responsesLfor=
j which Vermont _ Yankee presents common arguments; and Part III presents. Vermont's position on each.of the contested;
' interrogatory responses.
Vermont does not,,in this Answer, i
. repeat in-full the' interrogatories and responses which 4
Vermont Yankee-is challenging, because Vermont Yankee's Motion to Compel already sets them out in full.
- 1 I. Responses To General Arguments Contained
-d In. Vermont Yankee's Motion To Compel' A.
Vermont's " Legal Opinion" Objection F-In partial response to many of Vermont Yankee's 1
interrogatories Vermont raised an objection "to the extent.
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that (the question) seeks a legal opinion."
In its-Motion to Compel-Vermont Yankee characterizes this objection as
" frivolous."
- Egg, e.c.,
Motion to Compel at 29.
As noted in Vermont's May 9, 1990 Answer to the first Vermont Yankee motion to compel, this objection is entirely Ll' appropriate.
Vermont raises this objection when a question
- may be interpreted as seeking a legal definition or opinion; l'
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in these instances Vermont notes the objection in order that its response D21 be misinterereted as Vermont's position on a lecal definition or opinion.
In all instances in which Vermont notes this objection, Vermont continues its response l
and provides a completo response to the question.
Had Vermont not raised this objection, Vermont would surely now be responding to a Vermont Yankee motion to compel just such legal definitions and opinions in response to the interrogatories in question.
B.
Vermont Yankee Requests A Remedy That Is Utterly Inappropriate Vermont Yankee seeks to bar Vermont from further participation in this proceeding if Vermont does not supplement its responses to certain interrogatories.
- Exg1, Motion to Compel at 46, 48, 49.
Vermont Yankee provides no citation to case law or rule, nor any other support, for the propriety of this requested severe remedy.
The requested remedy should be applied only for egregious failures to provide discovery respenses, and then only for failure to obey an order compelling the responses.
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Wright & A.
Miller, Federal Practice and Procedure S 2284 (1970).2 Such 1
omitting only the legal opinion or legal definitio;. which was properly objected to.
2 "[C)ourts should make the punishment (for f ailure to produce discovery responses] fit the crime and should not impose a drastic sanction that will prevent adjudication of a case on its merits except on the clearest showing that this course is required."
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is not the case here.
This Answer will explain why Vermont's responses to the second set of interrogatories are entirely adequate and thus, in fact, need not be supplemented at all.
II.
Groups of Interrogatory Responses For Which Vermont Yankee Has Common Arguments A.
Interrogatories No. 46, 77, 81, 83, 84, 85, 88, 91, 94, and 97 In each of these interrogatories Vermont Yankee has dissected the quotations from LRS Associates quoted in sub-3 parts j and k of Contention 7 by selecting words and phrases from the quotations; Vermont Yankee then asks Vermont to " define what is meant by SOV" by the word or phrase as used in contention 7.
Vermont's response to each of these interrogatories follows the form, The phrase "
is quoted from LRS Report, #3-88.
To the extent this question asks what the author meant by this phrase, it is unanswerable, since the author's meaning is unknown to Vermont.
Vermont's meaning in quoting the phrase is that it is an apparent weakness in the Vermont Yankee maintenance program, identified by LR3 Incorporated, on its face a credible and respected expert opinion.
Vermont Yankee claims that this response is inadequate because C.
Wright E A.
Miller, Federal Practice and Procedure S 2284 (1970).
3 In Interrogatory No. 46 the quotation is from IR 89-80, quoted in sub-part d of Contention 7.
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- it.does'not reveallwhat-SOV intends to contend is.the' applicable-standard against (sic):the VYNPS maintenance is to.be measured, because.it does not reveal the specific-deficiencies that SOV will contend warrant-s:
= rejection of.the pending application, because'it does not -
!9, reveal the reasons;why SOV will contend'(and:against which the: licensee must defend),.and, most generally,
- because.it does:nothing to~1ift the fog of utter-4 vagueness implicit in the blind' incorporation by c
L reference of excerpts of: documents....-
Motion'tol Compel at 2.
zi However, Vermont Yankee's interrogatories did not ask
<1 Vermont to provide the " applicable standard," " specific deficiencies,"'or " reasons."
Vermont Yankee only' asked l
"what is meant by" Vermont.-
Vermont's responses to these interrogatories are true, factual and complete in each case.
As a responsible 1
regulatory agency, the Vermont Department of-Public Service
' reviews'certain documents that Vermont Yankee makes public.
~From11ts review of documents, including IR 89-80 and.the LRS
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-Associates reports, it was clear that Vermont' Yankee has a-maintenance program problem and.that the maintenance program could not perform as claimed in Vermont Yankee's application. = Vermont fulfilled its regulatory responsibility by using-the means at its disposal -- this proceeding -- to identify portions of these documents which
. illustrate Vermont Yankee's maintenance problems.
As a responsible public body, Vermont then took no further action nor expended additional public resources pending the 5
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p admission of contentions ~,-their survival through the' period i
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- Shortly into the discovery period,'before Vermont.was
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i able to prepare its discovery requests for, filing, Vermont.
Yankee' pursued the tactic of inundating Vermont'with its.
first set of interrogatories - (eighteen in number) 'followed closely by~its second set of interrogatories (155 in number), requiring the devotion-of Vermont's-limited I
resources to responding to them and thus hindering Vermont's own discovery efforts, 4
Without the ability to devote resources to case development, the complete extent of Vermont's investigation atlthe time of response to these interrogatories (numbers t
- 46, 77, 81, 83, 84, 85, 88, 91, 94, and 97) was the identification of the words and phrases-in question as portions of reputable documents which reveal maintenance program weaknesses and inadequacies..Thus, for each interrogatory, Vermont's response is absolutely and
- completely true,
'The motion to compel for these interrogatories should be denied because the answers submitted respond completely and i
accurately to that which was asked.
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Interrogatories No. 87,-90, 93, 96,-and:99i B.
.In.each of these interrogatories Vermont Yankee asked a-question in the following form:-
Please. describe each~and every enhancement to " program f
formality" that.SOV contends is required to obviate 1
<VYNPS'.s " vulnerability" to "
'" and, for l
each such' enhancement, set forth.all of the reasons why.
SOV contends.that, if implemented, the enhancement;would.
obviatethe vulnerability,
- 3..b N
Vermont's response to each of these interrogatories follows i
e the. form,
-L To the. extent the request to identify " enhancement [s which)-would obviate the_ vulnerability" represents a request-for Vermont to demonstrate reasonable assurance that the maintenance program would protect public health and safety in the extended period, Vermont objects, since i
this demonstration must be.made by licensee.
- Further, Vermont objects to the extent that this requests a legal opinion of what would constitute reasonable assurance,
.whichJwill be determined by the board at the end of the hearing.
Notwithstanding and without waiving these objections, Vermont offers that we are unable to answer this question without access to-and: review of licensee's maintenance documents.
In its. Motion to Compel Vermont Yankee contends that for eachrof these interrogatories, SOV's objections shop 1d be overruled for the reasons stated in Section I.
This interrogatory requests SOV's position as to one of its own assertions, and the Board.
should compel'Sov to provide a complete answer as a condition to participating further in this proceeding.
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This Answer in Part I has already discussed why Vermont's
" legal opinion" objection is appropriate, and why Vermont
'Section I of Vermont Yankee's Motion to Compel does not respond to Vermont's objection that these interrogatories request a demonstrction that must be made by the licensee, i
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' Yankee's requested relief-of barring Vermont from further; j
g participating in this proceeding'.is completely unfounded.;
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LIn addition, for.these particular interrogatories Vermont Yankee'sl Motion-to compel!does not contest, Vermont's:
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' objection that the requested' demonstration!must be.made by the~ licensee; Since Vermont Yankee-has not' challenged this
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valid objection,_the' Motion to Compel ~concerning these interrogatories must be. denied.
c.-
Interrogatories No. 107, 109 111,-113, 115, 117, g
119, 124, 126, 128, 145, 148 In.each of these. interrogatories Vermont Yankee argues:
d "To.-the extent that the response is incomplete "at this time," it must_be_ supplemented before: hearings commence."
t 5 Vermont is baffled by Vermont Yankee's statement:
.1
" Finally, a paradigm of the sort of answer that, while f acially responsive must be required to be supplemented before the hearings can begin, are those given in response to Interrogatories 7, 49, 107, 109, 111, 113,.115, 117, 118, 124, 126, 128, 129, 131, 133,'135,'137, 144, 145'and 148 ("at this time"'this is what we have (or we have nothing)).'"
Motion to compel, at 2 and 3.
Vermont responded to Interrogatories 118, 129,'131, 133, 135 and 137, with the statement, "This LER has
.not been evaluated by Vermont with regard to the requested information." This statement does not include the phrase, "at this t
time"'as alleged, but-rather represents a complete-and truthful response.
The reference _ to Interrogatory 144 is even more befuddling.
Vermont's response to Interrogatory 44, "' Gross age failure of the drywell paint system' refers to the drywell paint failure discovered by the NRC Maintenance Team, and described in letter, BVY 89-69," gives not hint of "'at this time' this is what we have (or we have nothing). "
Because of inaccuracies and
= confusion in Vermont Yankee's statement at pages 2 and 3 of its Motion to Compel, no weight should be.given it.
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Vermont YankeeJattempts to change the meaning of "at.this
- times"-used by Vermont in' response'to these interrogatories-i -
'to signify 1thatLthe response was incomplete.-
However, in" each instance the response was complete and entirely
. truthful when filed.
"At this time" in each instance refers L
to the= extent-of our. case development and. discovery.- 133 n
Part_II.A of this Answer, and Vermo'nt's May 9, 1990 Answer
=to the first motion'to compel at 4 - 6.
. Vermont recognizes and will fulfill its' responsibility for supplementation of responses;in-accordance with 10 C.F.R. S 2.740(e).. Since Vermont Yankee makes.no statement of why Vermont's responses to=these interrogatories are incomplete, and offers no valid argument that Vermont's responses were not true and factual-when made, Vermont Yankee makes no valid argumentlto compel.
.The motion to compel for these interrogatories should be-i, denied.
D.
Interrogatories No. 54, 92, 98,-114 and 122.
In each of these interrogatories Vermont Yankee argues:
"To the extent that SOV admits that' this answer is incomplete, SOV must be required to supplement it."
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' Vermont Yankee's argument for Interrogatory No. 114 omits "that SOV admits;" the argument for Interrogatory No. 54 uses
" concede" instead of " admits;" the argument for Interrogatory No.
122 begins "As SOV admits."
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As-above,SVermont-Yankee again unsuccessfully'and'
.e illogically attempts: to turn-a phrase in Vermont's response:
.to meet a 10 ' C. F.R. S ' 2.740 (f) ' criterion to compel.
Vermont j
1 YankeeLwishes~to'parlayLthe following phrasesLinto J
admissions'or concessions that the resoonse is. incomplete:-
4 Interrogatory No. 54:. "has not completed it evaluations" f
. Interrogatories No.-92.and 98:
"has not evaluated the-
'I meaning of this quotation further"-
)
Interrogatories-No.1114. ands 122:
"has not been:
completely _ evaluated" i
Each of these phrases refers'to the-extent of Vermont's case i
development and discovery at the time of the response, and in no'way implies that the response is incomplete.
To the contrary, the responses were-fully complete and truthful.
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LVermont recognizes ~and will fulfill its obligation to supplement responses in accordance with 10 C.F.R.
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2.740(e).
Since Vermont Yankee makes no statement:of why EI
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Vermont's responses to these interrogatories are incomplete, 4
and offers no argument that Vermont's responses were not true and factual when made, Vermont Yankee makes no valid
. argument to. compel. :The motion to compel for these interrogatories should be denied.
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Interrogatories'No.;110, 112, 116, 118, 120, 125,-
Q 127, 129,'131, 133, 135, and 137' a,.
'In each'of these, interrogatories Vermont Yankee asked a
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_ question /in the following form:
Please' describe each and=every change to the'VYNPS maintenance program or surveillance program that'SOV-contends, had'such change been implemented earlier, would
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have: precluded the' occurrence of the matters-described-in-p the~ Licensee Event Report described in the foregoing E
interrogatory.
Vermont's response to each of these interrogatories follows
- theJform, This LER.has yet not been evaluated by Vermont with regard to the requested infer. nation.
In its Motion to Compel with respect to each of these responses, Vermont Yankee claims that,
,7 SOV cannot raise an issue in a contention and
'then blandly refuse to state its' position on the issue.
The' Board should require SOV to make A complete' response to this interrogatory as a condition of' participating further in this proceeding.
Vermont Yankee's argument is premised on completely wrong interpretations of both the nature.of Vermont's reliance on the'LERs and Vermont's obligation to evaluate the LERs.
Vermont, as part of its ongoing state regulatory efforts, has been aware of Vermont Yankee's flawed maintenance 7
1 Vermont Yankee variously begins this claim with "Here too"
,(Interrogatories No.
- 110, 112,
- 116, 118 and 120),
"Again"
-(interrogatories No. 125, 127, 129, 131, 133 and 135) and "Once again" (Interrogatory No. 137).
While unclear, these apparently refer 1 back to the argument for the first interrogatory in this
" series," Interrogatory No.108, an argument, however, which is not made.
(See the discussion of Interrogatory No. 108, below.)
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tif program'through monitoring documents with which. Vermont is N'
provided.
Upon observing the reliance placed upon this
- flawed maintenance program for the requested life extension,-
Vermont reviewed the LER's for 1988 and 1989, and' identified
- s those-which revealed-maintenance-related problems.
These LER's were listed in sub-parts m and n of Contention VII as-
- clear examples of maintenance problems.
This was the extent of Vermont's consideration of these LER's, and, because of-the delay'in case development as described'above in part II.A, continues to be the extent of consideration of these LERs.
- Vermont's responses to these interrogatories were 1
complete, accurate and truthful.
Vermont has not " raise (d]-
an' issue in a contention and then blandly refuse [d] to state its position on the-issue," as Vermont' Yankee complains.
Instead, Vermont has identified hard evidence of maintenance problems, and states its position that " applicant has failed q
to demonstrate that there is reasonable assurance" in accordance with 10 C.F.R. S 50.57 (a) (3).
Vermont has not determined "each and every change... that would have i
precluded the occurrence of the matters described in the q
License Event Report" since this obligation belongs to the applicant.
However, Vermont recognizes its duty with regard to supplementation in accordance with 10 C.F.R.
S 2.740(e),
t should Vermont elect to review any of the LERs further.
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tThus, the motion to compel should be denied for these
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Linterrogatories since their responses were complete, v
accurate-and-truthful..
s Vermont Yankee's argument to condition "further
- participation in this proceeding"_ upon additional' responses to these interrogatories'is completely unfounded, as stated s
'infPart-I.B of this Answer, III.
Specific Interrogatories
. Interrogatories No. 1 and 3 For each of these two_ interrogatories, Vermont Yankee in its Motion to Compel claims that "what (Vermont's response]
does1not provide -- and what was specifically sought -- was SOV'stassertion regarding the set of thinas that'are within the scene of the term (" maintenance program" and
" surveillance program"] as applied by (Vermont] to Vermont Yankee in the specific context of SOV's Contention 7.
The interrogatory is clearly directed at obtaining a bounded set a
of items..." (emphasis added).
This argument misstates what was requested by the interrogatories.
Interrogatory No. 1 asked Vermont to " define what SOV contends is included within the scope of the term ' maintenance program.'"
Interrogatory No. 3 asked Vermont to " define what SOV contends is included within the scope of the term
' surveillance program.'"
Vermont provided those definitions 13
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in its-responses, and thus no further response should be-compelled.
Interrogatory No. 5 Vermont answered this1 interrogatory to the. fullest extent 7
'ofLits ability : :After citing the~reasonableJassurance j
requirement of 10 C.F.R. S 50.57 (a) (3),- Vermont noted in its i
response 1that it "is not aware of eachiand-every requested 1
requirement."
Vermont 1then stated those requirements of_
which it was currently aware.
There is no further i
responsive information that-Vermont can be compelled to i
provide.
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Interrogatory No. 6 I
i Vermont filed a complete response to Interrogatory-No.
6, 1
which asked Vermont'to-" list and describe in as much detail as is available to SOV each of-the changes..." (emphasis
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added).
Vermont' listed those changes in as much detail as was available to it..As the interrogatory asked, Vermont m
.provided as much detail-as possible, at the time of
)'
response.
Thus there is no additional responsive-U o
information that can be compelled from Vermont.
i Vermont Yankee contends that "[t]o the extent that this i
response falls into the 'no position yet' category, Sov at a minimum is required to advise when it will have a position and the steps that it is taking to ' finalize' its position."
Vermont Yankee is wrong.
The interrogatory specifically 14
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- asked for "as much detail as is available" to' Vermont, and j
ngt for any " finalized" position.. To the: extent-that in its
. Motion to: Compel: Vermont. Yankee now' seeks to force Vermont-Liv I to disclose the:" steps" Vermont is:taking to~further develop its case, Vermont objects for the reasons' set forth in
- conjunction with the discussion of Interrogatory No. 155, below.
' Interrogatory No. 7 m
. Vermont's Response No. 7 in part referred to its' Response g
No.
1, Set No.
1.
That response is the subject of a separate pending motion to compel; Vermont refers the Board to its May 9, 1990 Answer to that motion to compel.
Vermont. Yankee states in its Motion to compel that
"[t]his response merely references SOV's response to
- Interrogatory No. 1 in Licensee's Set No.
1."
Apparently Vermont Yankee did not read the sub-parts to Contention 6, r.
to which Response No. 7 referred, which identify aging failure mechanisms for different categories of structures,
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systems and components.
This reference provides a complete "E
response.
Vermont's response to this interrogatory is similar to its-Response'No. 6 in that Vermont provided all the responsive information available to it at the time of filing its response.
Thus, as discussed in relation to 15 iimm-i imi-inmi-----ummmme- - ---- - -mm
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1 Interrogatory No. 6 above, there is no additional responelve j
i information that can be compelled frca Vermont.
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Finally, Vermont Yankee argues that "[tjo the extent that the response is incomplete 'at this time,' it must be
<f-l required to be supplemented before hearings. commence."
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. Vermont responded to this arguntnt in Parf, II.C of this y
E Answer.
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Interrogatories No.
9, 10, 11, it These interrogatories ask Vermont to " define the measure" cf "sufficiently effective" and of "sufficiently...
comprehensive" and to provide the bases for the definitions.
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Vermont responds to the licensee's argument concerning Vermont's " legal opinion " objection in part I.A.
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considering the comments in part II.D. of thi's Answer, Vermont's reference to Response Wo. 44, in Responcos No. 9 and 11, provides as complete and full a definition of the I
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adverb "sufficiently" as it nad when the response was made.
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Response No. 44 identifies the reasons, facts and evidence l-known.to Vermont of instances where the maintenance program is " insufficient "
A response defining " sufficient" in terms of what is " insufficient" is entirely acceptable for Vermont, especially considering the comments in Part II.D.
q Vermont Yankee bears the burden of presenting a maintenance program which meets the measure or standard of 10 C.F.R.
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- 50. 57 (a) (3), and Vermont cannot be compelled to create this acceptable maintenance program for Vermont Yankee.
Regarding Vermont Yankee's argument concerning the t
" measure" of effectiveness or comprehensiveness,-Vermont thought it_ obvious that the measure is that of 10 CFR
- 50. 57 (a) (3). "
With regard to Responses No. 10 and 12, Vermont's E(
reference to "the decision'of the Board" is a clear reference to the ruling the Board will make on Vermont Yankee's attempt to demonstrate reasonable assurance, in accordance with 10 C.F.R. S 50.57 (a) (3).
Thus, these responsen are complete and truthful and no additional response should be compelled.
Interrogatories No. 14 and 16 These interrogatories ask Vermont to identify
" requirements with which SOV contends the VYNPS (maintenance, surveillance) program is not in compliance...."
In response to these questions, Vermont has identified the reasonable assurance requirement of 10 C.F.R.
S 50.57 (a) (3).
Vermont Yankee in its Motion to Compel L
argues that "[t]he Board should therefore either rule that L
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" measure" had been defined in response to l
Interrogatory (Set No. 1), No.
2, and has been defined again in response to Interrogatory (Set No. 3), No.
8.
Vermont has made no other-determination of the " measure."
Vermont Yankee should L
wish to compel this definition yet a third time.
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i Sov is limited to that asserted legal requirement or should require SOV to identify-any other asserted legal requirements on which it intends to rely."
Vermont Yankee provides no legal basis for such a ruling.
As noted in Vermont's May 9, 1990 Answer to Vermont Yankee's first motion to compel, Vermont is quite appropriately further i
j developing its case during the discovery process, since most of_the relevant information is in the possession or control of Vermont Yankee and not of Vermont.
If in the course of i
discovery Vermont uncovers evidence that Vermont Yankee is not in compliance with other relevant legal requirements, there is no basis for denying Vermont the opportunity to rely on such requirements.
Interrogatory No. 17 As it does throughout its Motion to compel, Vermont Yankee here attempts to redefine an interrogatory.
In its Motion to compel Vermont Yankee complains that Vermont has j
i not defined what constitutes closure by Vermont.
- However, the interrogatory requested "what SOV means by the phrase L
'no' closure showing improvement.'"
Vermont has provided a complete and accurate description to what was meant.
E In a footnote, Vermont Yankee suggests that if the phrase L
includes " closure by Vermont," as Vermont stated in its l'
L Response No. 17, then Vermont must amend its Contention 7.
L This argument makes no sense.
Interrogatory No. 17 asked 18 4
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b what the phrase meant "as used by [ Vermont) in... its contentinn 7."
Vermont has responded that, as used in contention 7, the phrase included " closure by Vermont."
If Vermont Yankee, in its argument regarding amendment of the Contention, is suggesting that the phrase in the Contention
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then Vermont Yankee would have had no need to ank its Interrogatory No. 17.
m Interrogatory No. le This interrogatory asks Vermont to " describe the set of P
items, events or circumstances that would constitute
' closure showing improvement'...."
Vermont in its Response No. 18 provided just such a description.
Now in its Motion to compel Vermont Yankee seeks to force Vermont to answer an entirely new, reformulated interrogatory.
Vermont Yankee now states that:
SOV has contended that seven specific conditions prevent issuance of the subject amendment.
Taken in that context, this interrogatory clearly and reasonably asked SOV to state, for each such alleged problem, what SOV t
asserted needed to be done to solve the problem.
Motion to Compel at 12.
Interrogatory No. 18 nowhere asked Vermont to state, for each of the seven problems, what needed to be done to solve the problem.
Interrogatory No. 19 Vermont Yankee unsuccessfully attempts, in its argument, to interpret the wording from sub-part b of Contention 7, 19 I
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h; "no closure showing improvens*/c," to apply only to closure by NRC staff, completely ignoring Vermont's response to l
Interrogatory No. 18.
In Response No. 18 Vermont has l
l completely and accurately explained that_this is not what is l
meant, and never was what was meant, by this wording.
The fact.that vermont Yankee is not pleased, or'is surprised, by this meaningLis not a valid argument to compel a different r
response.
Verment Yankee's footnote regarding reformulating contentions is superfluous and irrelevant.
The response to Interrogatory No. 19 is clearly "no" and l
perhaps that should have been added to_the reference to the
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I previous response.
Nevertheless, the response is clear, accurate and truthful in its present form.
For these reasons, and because Vermont Yankee offers no cogent argument, no further response sh,ould be compelled.
Interrogatory No. 20 In its Motion to Compel Vermont Yankee contends that Vermont's Response No. 20, which refers to its Response No.
18, is defective for the same reason that Response No. 18 is allegedly defective.
Therefore, see the discussion of t
Interrogatory No. 18, above.
Interrogatory No. 23 Vermont Yankee complains that Vermont's Response No. 23 focuses on Ehy, while the question asked hgy, post maintenance testing must be incorporated into the 20 I
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naintenance procedures.
Vermont Yankee fails to consider the last sentence of-the response which explains "how" post maintenance testing should be incorporated.
Vermont Yankee's' argument is that Vermont has not described "how" in the terms it wished or expected (perhaps including drafting such procedure additions).
However,. Vermont's description of "how" is valid and is based on'the industry description in Draft Regulatory Guide DG-1001.
Thus, Vermont Yankee's L
Motion to compel with respect to-this response should be rejected.
Interrogatory No. 24 Vermont truthfully noted in its Response No. 24 that, without access to Vermont Yankee's maintenance procedures, 3
it could not provide the identification of steps requested by this interrogatory.
In its Motion to compel vermont Yankee essentially contends that vermont should have, by the date of its responses, conducted sufficient discovery to provide a substantive response to this interrogatory.
Vermont Yankee thus proposes that a party must have completed sufficient discovery, erior to the completion of the discovery period, to be able to respond in full to 1
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6 another' party's discovery requests.
This completely unsupported proposition must be rejected.'
Interrogatory No. 29 In its Motion to Compel Vermont Yankee attempts to force a yes or no answer upon Vermont.
However, the question cannot fairly be answered so narrowly.
The interrogatory asks if non-incorporation of "PRA concept" renders Vermont Yankee's maintenance program "in any resoect not in compliance with any regulate.y requirement of the commission" (emphasis ad('s).
Vermont's Response No. 29 is a fair and full answer to this broad interrogatory.
Furthermore, it is not possible to state with precision whether failure to implement a particular measure will defeat the reasonable assurance requirement, since that requirement by its nature does not establish black-and-white objective standards for compliance.
Thus, Vermont's response appropriately did not provide an overly simplified yes or no answer.
Interrogatory No. 30 Vermont is especially baffled by Vermont Yankee's argument concerning Response No. 30.
The response referred
' Vermont emphasizes that a primary reason that it has not propounded more discovery requests than it has to date is because Vermont has been forced to devote its limited resources to responding to Vermont Yankee's burdensome discovery requests and Vermont Yankee's lengthy and generally groundless motions to compel.
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i back to Response No.-29,.which clearly identified the j
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" reasonable assurance"' requirement.
In its Motion to compel j
1 regarding Interrogatory No. 30, Vermont Yankee states that g
Vermont failed to point to a legal requirement in its response.
Vermont Yankee is mistaken, since'by reference to Response'No. 29 Vermont's Response No. 30 did point to the i
" reasonable assurance" requirement.
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Interrogatory No. 31 i
This interrogatory asks:
What significance, if any, to the question of whether the
'" incorporation" of "PRA concept" into a maintenance program is necessary to the permissibility of plant i
operation does SOV attribute to the fact that the Commission has declined to impose such a requirement through the promulgation of a regulation?
Please state in detail the bases for your response.
Vermont properly objected to this interrogatory on the two,
{
independent grounds that the significance of the
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Commission's decision not to promulgate a regulation is (1) l l
a matter of legal opinion, and (2) is not a matter of substance in this proceeding.
Vermont stands-by these entirely appropriate objections.10 Vermont's objection that i
the commission's decision regarding PRA concepts is not a
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l matter of substance in this proceeding is especially appropriate.
Vermont is unaware that the commission has
)
10 In its Motion to Compel Vermont Yankee denigrates these objections as " patently frivolous."
By now the Board should recognize that Vermont Yankee resorts to colorful language when it has nothing of substance to offer.
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ever given consideration to the matters of this proceeding
,j
-- i.e.,
reliance on a maintenance program in lieu of a determination of qualified life of structures, systems and components for plant life extension -- in any decision regarding PRA' concepts.
c Interrogatory No. 33 i
Interrogatory No. 33 asked for Vermont's definition.of
" qualified replacement personnel."
Vermont provided its definition in its Response No. 33.
In its Motion to Compel Vermont Yankee complains that Vermont should have provided j
quantitative amounts in its response.
The question only
.I asked for the definition, and Vermont responded to that request.
Vermont Yankee cannot force Vermont now to provide information net requested in the original question.
Interrogatory No. 37 In its Motion to Compel Vermont Yankee contends that Vermont should have answered "I don't know," rather than h
objecting on the grounds that the information sought is outside the scope of what vermont should reasonably be expected to know.
Vermont stands by its objection.
Notwithytunding its objection, Vermont provided a full and complete response by referring to its response to set No.
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' Interrogatory No. 8, upon'which Vermont Yankee does not
- q comment in its Motion to Compel.11
- lt Interrogatory No. 40 Vermont Yankee suffers distress from its choice of words i
e in Interrogatory 39:
Does SOV contend that a maintenance program " based on the stability of. maintenance staff, their skill in their professions, and their knowledge of plant-system characteristics that come with long-term experience" will alvavs be incaoable of achieving the purposes of a maintenance program (emphasis added)?
By using the words "always be incapable" Vermont Yankee of-l its own volition sets the bounds of the question within the j
hypothetical.
Vermont Yankee transfers the hypothetical l
bound to Interrogatory No. 40 by the phrase, "If your answer to the foregoing interrogatory is anything other than an unqualified affirmative."
Vermont has answered Interrogatory No. 40 in the only l
l manner it could, hypothetically, and the answer is entirely
[
responsive.
The interrogatory requests " state the conditions" and Vernont has stated that the conditions at
- present, i.e.,
a stable maintenance staff with longevity compensating for deficient procedures, are conditions which could be considered by some (hypothetically) to make such a maintenance' program adequate.
This does not mean that 11 This dispute, while groundless, is now made moot by Vermont's response to Interrogatory No. 12, Set No.
3.
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Vermont believes the such a progrom is adequate-now, or will be in the future.
The remedy for vormont Yankee's woes would.be to replace "always be incapable" in Interrogatory 39 with "will be incapable in the oxtended period" or "is.
incapable at the present time."
Since such remedy is not
_ proper through a motion to compel, no further response should be compelled.
Interrogatory No. 41 Vermont in its responses answered this interrogatory completely, as is obvious from Vermont Yankee's concluding statement on this interrogatory in its Motion to compel:
"It is thus not only fair, and not only sound discovery, it is an essential question to soV:
what is your position on this precise conclusion and what do you rely on?"
Vermont clearly and unambiguously stated in :lts Response No. 41 that
"[t]hese facts do not lead Vermont to the conclusion that the standard for quality of maintenance work is high" (which is the " precise conclusion" to which Varmont Yankee refers in its Motion to Compel).
Vermont clearly and unambiguously stated in its response that it relied on the facts and evidence set forth in its Response No. 44.
Interrogatories Ho. 42 and 43 Without any substantive argument, Vermont Yankee contends that Vermont's Responses No. 42 and 43 are deficient for the same reasons as its Response No. 41.
Instead, Vermont's 26 i
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Responses No. 42 and 43 are complete and appropriate for the same reasons as is its Response No. 41.
Interrogatory No. 44 The frivolous nature of Vermont Yankee's Motion to Compel i
is glaringly apparent in its claim that this response is deficient.
Vermont Yankee again contends that a Vermont response is deficient for the same reasons as its Response No. 41.
Not only did Vermont unequivocally answer "No" to l
this interrogatory, but also Vermont painstakingly listed specific facts, with numerous specific references, in support of its disagreement with the conclusion stated in the interrogatory.
Vermont Yankee drops a footnote (number 5) at this point in its Motion to Compel.
Two statements in that footnote cannot be left unchallenged.
First, Vermont Yankee refers to the reasonable assurance requirement of 10 C.F.R.
S
- 50. 57 ( A) (3) as a " residual requirement."
Vermont believes that the " reasonable assurance" requirement is anything but residual, and is of vital importance to the protection of I
the public.
The Board should not tolerate such a, cavalier attitude by the licensee toward a regulatory requirement designed to ensure the public well-being, and must seriously question Vermont Yankee's commitment toward protecting the health and safety of the public in its operation of the j
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Vermont Yankee plant.
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Second, Vermont Yankee's footnote 5 also states thatt In,this case, the.very same Staff report that identifies the supposedly fatal " weaknesses" concluded that such reasonable assurance does exist.
There can be no starker 1
exposure of the vacuity of SOV's "we say so because they j
g say so" contention syllogism.
j It is hard to imagine how Vermont Yankee could make this i
statement unlessLit did not bother to read Vermont's f
i Response No. 44.
In that response Vermont cited specific
'1 1
facts, supported by numerous documents other than the."very same Staff report," that indicate that Vermont Yankee's maintenance program is not adequate to satisfy the I
reasonable assurance requirement.
Interrogatory No. 45 In its Interrogatory No. 45 Vermont Yankee asked Vermont to define " age-related problem."
Vermont respended with the clear and sensible definition with which Vermont uses the term.
In its Motion to compel Vermont Yankee complains that Vermont's response is a " perfect circle."
The problem is
-that Vermont Yankee has sought the definition of a term that should have been clear on its face to Vermont Yankee.
4 Vermont has merely supplied the common-sense definition to which the term is eminently susceptible; now Vermont complains that the definition is the same as the term.
Unfortunately for Vermont Yankee, that is the response L
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compel.12 1
Interrogatory No. 46 l
See.Part II.A of this Answer.
p j
Interrogatory No. 47 Vermont answered this interrogatory fully; in the last i
f sentence of its response Vermont cites the requirement of 10 i
i c.r.R. S 50. 57 (a) (3).
Interrogatory No. 49 In its Response No. 48, Vermont stated that there is a
)
maximum amount of time within which VYNPC must perform a
" review (of) the appropriateness and technical adequacy of completed maintenance activities."
Interrogatory No. 49 l
then asks Vermont to identify what it contends is that maximum amount of time, with supporting reasons.
Vermont truthfully responded that at present it could not provide quantitative values, but went on to list factors, including i
the setting of priorities, relevant to that determination.
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12 In its footnote 6 Vermont Yankee contends tl.at a truc) backing into a
switchyard transformer is within Vermont's definition of " age-related problem." This fatuous exampla not only
-is clearly outside Vermont's definition, it also illustrates the l
frivolous nature of Vermont Yankee's Motion to compol.
It is only L
through such absurd arguments that vermont Yankee is able to produce a seventy-five page, largely single-spaced Motion to Compel to which Vermont must devote its limited and valuable resources to respond.
29
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I l4 In its Motion to compel Vermont Yankee claims that the list of factors is not responsive to the question.. Vermont may have gone beyond the question in that part of its
}
response, but since Vermont could not provide the
(
quantitative values sought, Vermont attempted to provide
[
what relevant information that it did possess.
In I
i particular, Vermont Yankee claims that the interrogatory
{
"has nothing to do with setting priorities."
However, the question asked for the reasons why Vermont contends that a particular amount of time is the maximum allowable.
Although Vermont could not yet provide the quantitative values, it could and did list the reasons (which the question requested) it had determined to date.
Finally, Vermont Yankee contends that Vermont's Response No. 49 is " inconsistent" with its Response No. 48.
Vermont Yankee is wrong.
In Response No. 48 Vermont said that it believes that there is a maximum amount of time, and in Recponse No. 49 stated that it could not yet auuntify that
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amount of time.
There is no inconsistency.
Interrogatory No. 50 In its Motion to Compel, Vermont Yankee for this interrogatory attempts to force the response "None" on Vermont.
There is no basis for this.
Vermont answered the interrogatory by listing two incidents which may fit the i
circumstances set forth in the question; Vermont further l
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t noted that until it reviewed Vermont Yankee records it could not state with certainty whether those.(or any other)
"None"-would have l
incidents truly fit those circumutances.
l been a somewhat deceptive response, since Vermont had identified'the two incidents noted in its response as l
possibly responsive to the question.
Thus, Vermont answered j
this interrogatory to the fullest extent to which it was capable, and clearly noted the qualiffcations to its j
response.
No further response should be compelled.
Interrogatory No. 52 This interrogatory asked for Vermont's definition of "the term ' timely updating.'"
Vermont provided that definition in its response.
Now, in its Motion to Compel, Vermont 1
Yankee claims that Vermont should have defined " timely" and provided a response "in units of time."
That was not the question asked, and thus no further response should be p
compelled.
i=
L Interrogatory No. 33 In this interrogatory Vermont Yankee asks Vermont to
[
" describe the types of circumstance under which SOV y
understands VYNPC vendor manuals to be updated."
Vermont truthfully and completely responded that it had not been granted access to vendor manuals or vendor manual updates.
In its Motion to compel Vermont Yankee provides no indication of what additional information it expects Vermont L
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to be~able to provide in response to this question; the i
reason is that there is no such additional information that Vermont can provide, and thus no further response should be compelled.
1 Interrogatory No. 54 See Part II.D of this Answer.
Interrogatory No. 55 Vermor.t's Response No. 55, and Vermont Yankee's argument in its Motion to Compel, parallel those for Interrogatory No. 47.
Vermont's answer here is thus the snine as for its Response No. 47:
Vermont answered this interrogatory fully.
4 In the last sentence of its response Vermont cites the requirement of 10 C.F.R. $ 50.57 (a) (3).
Interrogatory No. 58 b
Vermont stands by its objection provided with its original response.
Interrogatory No. 59 It.iz clear from thie pair of gutstions (Interrogatories l
No. SS and 59) that Vermont Yankee asserts that a " fact er i
circumstance" which would ellininnt,a the " basis for sub-paragraph 'h. (1) ' of Contention 7" would be:
I
"(epiat.the authors of EPRI NP-6152, (January, 1989) meant by the term " life-extension" does not include the authorization sought by this operating license
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amendment."
32
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Vermonti while properly objecting in Response No. 58 to this
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i irrelevant hypothesis,. followed the letter of Interrogatory No. 59 (the objection in Response No. 58 was not an
" unqualified affirmative"), and answered on a parallel plane l
to Vermont Yankee assertions.
The " fact or circumstance" which establishes the " basis for sub-paragraph 'h.(1)' of I
contention 7" is stated directly in Response No. 59:
"The concepts of reliability-centered maintenanco apply to the life extension proposed by this amendment...."
(The " life extension proposed by this amendment" was defined i
in Response No. 57.)
Since this is a complete and truthful
(
response, following the parallelism constructed by Vermont Yankee, no further response should be compelled.
I Interrogatory No. 60 This is yet another instance in its Motion to compel where Vermont Yankee seeks to change its original intetrogatory and then compel Vermont to respond to the reformulated question.
Interrogatory No. 60 askred Vermont l
i uhat it understood "to be the special effectiveness of RCM i
for ' life extension.'"
In its Motion to compel Vermont
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Yankee contends that its interrogatory sought reasons why RCM is the "only," "best," or " uniquely able" method to accomplish certain goals.
Unfortunately for Vermont Yankee, "special" is susceptible to a variety of meanings, including
" surpassing what is common or usual;" "having a limited or 33
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1 specific function"; " additional"; and " extra."
(The American Heritage Dictionary, Second College Edition, 1982.)
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Vermont answered ths question as asked.
If Vermont Yankee i
now regrets its choice of wording in its original j
interrogatory, that is no basis to compel Vermont to provide t
a further response.
Interrogatory No. 61 i
Vermont's response to, and Vermont Yankee's argument in its Motion to compel concerning, this interrogatory parallel those for Interrogatories No. 47 and 55.
As with those two questions, Vermont has responded completely to the question.
Interrogatory No. 67 Vermont's response to this interrogatory refers to set No.
1, Response No. 6.
In its Motion to Compel Vermont Yankee refers to the pending motion to compel that relates 4
to Set No.
1.
Vermont likewise will rely on its position i
set forth in its Answer to that previous motion to compnl.
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Interrogatory No. 68 Vermont Yankes admits that verment's answer to this interrogatory " appears to be responsive."
Vermont Yankee's complaint is that the response is "a non-inclusive illustrative list."
This is an accurate description of the response only to the extent that the response is cessibiv non-inclusive because Vermont has not yet completed its l
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. preparation of its case,13 and thus Vermont may uncover additional supportive facts as it continues'to prepare its case.
Because the response provided all responsive information known to Vermont at the time of response, and as noted'in part II of this Memorandum Vermont recognizes.its duty to supplement its responses, no further response should be compelled.
Interrogatory No. 70 Vermont Yankee admits that Response No. 70 is responsive, and contends only that "a deadline must be set for its completion."
The discussion in part II.D of this Answer applies to this interrogatory.
Also, as with Response No.
68, Vermont provided all responsive information available to it at the time of response, and as noted in part I of this Memorandum Vermont recognizes its duty to supplement its responses.
Thus no further response to this interrogatory should be compelled.
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Interrogatory.No.'72 j
Contrary to Vermont Yankee's argument, Vermont has made a I
complete statement regarding its " reason SOV contends (if it does) that (this maintenance deficiency) would materially impact safety" with the following:
23 Response No. 44, which is referenced by Response No. 68, makes-this clear.
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(T]he lack of " review [of)'the industry practice in-1 maintenance planning (which) would aid in' increasing productivity in the maintenance area" can contribute to the lack of demonstration of reasonable assurance'that the proposed action will protect the public health and safety.
In order to avoid verbosity, Vermont did not include certain
-j obvious logical linkages already established.
For example:
Maintenance has an effect on safety - established in sub-part b of contention VII.
)
i NRC has grave concerns of nuclear plant maintenance (53 j
FR 47823 and 54 FR 50611) - Response to Interrogatory No.
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2.
NRC is relying on industry initiatives to ally its
]
concerns (54 FR 50611) - Response to Interrogatory No.
2.
Vermont Yankee's review of industry practice is part of its maintenance program.
The legal basis.of this proceeding is a demonstration of reasonable assurance that the proposed action will protect the public health and safety - 10 C.F.R.
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- 50. 57 (a) (3).
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Vermont Yankee's recalcitrance with regard to industry i
initiatives materially impacts safety becauss these 1
initiatives'are what NRC is relying upon to ally its concern about the impact of maintenance on nuclear safety.
This is what is stated in, or at least obvious from, Vermont's A
Response No. 72 I'
l' Vermont cannot let pass Vermont Yankee's comment in footnote ' 9, Motion to Compel at 39.
The theorizing regarding 2
"the best maintenance program in the world" cannot be taken seriously considering the NRC Revised Maintenance Policy Statement (54 FR 50611).
Further Vermont Yankee clains:
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Interrogatory No. 73 This' interrogatory asks Vermont what it meant by the i
phrase "better. computerization of the MR system."
Vermont responded completely, noting that the phrase was quoted.from' j
LRS Report #3-88, and that Vermont uses the phrase to refer to the computerization of the currently Danual Visicard system.
In its Motion to compel Vermont Yankee chides Vermont for not defining the word "better" which appears in I
the phrase.15 Vermont contends that it is abundantly i
r obvious that "better" in "better computerization" refers to i
the comparison between a manual (i.e., non-computerized) to l
h[u]nless the Board can find as a matter of fact tho' the VYNPS maintenance program results in a demonstrably unsafe-condition of operations, it cannot legally disapprove the proposed amendment."
This is not so.
A correct statement is:
"Unless the Board can find as a matter of fact that the s
Vermont Yankee has demonstrated that the VYNPS maintenance program results in reasonable assurance that operation in the extended period can be' conducted without endangering the health and safety of the public, it cannot logally approve the proposed amendment."
' There is a great difference between the statements.
Vermont does not have to demonstrate the maintenance program will result in unsafe conditions.
Rather, Vermont Yankee has to prove, which Vermont does not believe possible, that the maintenance program will yield safe operations in the extended period.
I 15 Note that in this instance Vermont Yankee complains because Vermont has defined a complete phrase, instead of the individual elements of the phrase.
In its first motion to compel, Vermont Yankee adopted the diametrically opposed position that a phrase must be defined as a whole, and not by its constituent parts.
Fast vermont Yankee's first Motion to compel at 4.
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'Q; a computerized system, and thus no further response should be compelled.
?
Interrogatory No. 75 Vermont agrees that this response is.less clear than it could be,'but that, nevertheless the answer is provided in full.
Vermont Yankee asked " define what is meant" and Vermont ~ responded:
" Vermont: auotes the phrase, "better utilization of the Assistant to the Operations Supervisor" from LRS Report, r
'#3-88, because we aaree that it would be desirable to reduce or eliminate shift supervisor review time (emphasis added)."
Vermont could have responded:
" Vermont defines the phrase, "better utilization of the Assistant to the operations Supervisor" from LRS Report,
- 3-88e'12_RRAD that it would be desirable to reduce or eliminate shift supervisor review time."
Vermont accepts the accusation of imprecision,l' but submits that_the answer is there, and there is no reasora to compel further.
Interrogatory No. 76 This interrogatory asks for Vermont to state its reasons for. contending "that 'better utilization of the Assistant to the operations Supervisor' would materially impact safety In response Vermont stated its reasons, which in l'
Isolated instances of imprecision are a hazard of long documents submitted on short schedules.
See for
- example, licensee's argument for this very interrogatory:
"The question asked '(p)1 ease define what it (sic) meant....'"
38
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part are based on an " impression" given by the LRS Report.
Vermont Yankee complains that "' impressions' do not answer b
the question."
The complaint over the word " impression" represents-a continuation of Vermont Yankee's tactic to play l
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.the bully since it has access to the complete record and knows that Vermont does not.
The word " impression" was used l
because, lacking the documents requested by Vermont Interrogatories (Set No. 1) Nos. 5, 102, 103 and 104, and j
l Vermont Documentation Production Requests (Set No. 1) No.
3 17, the LRS Report gives the only public view of this problem.
We have stated our reservations about the LRS Report conclusions in response to Interrogatory (Set No. 1)
No. 12.
Thus the most precise statement of our " reason" is by using the word " impression."
For these reasons Vermont Yankee's argument is without validity and no further i
response should be compelled.
Interrogatory No. 77 See Part II.A of this Answer.
Interrogatory No. 79 No further response should be compelled for this interrogatory because Vermont Yankee makes no argument to compel.
Vermont Yankee's argument with respect to this
' interrogatory is that "[t]his response is, for the same reasons as No. 77, an evasion of the question."
The
" reasons" referred to in "No. 77" do not relate in any way 39 l
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Vermont's answer I
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is fully. responsive to the interrogatory, and Vermont I
Yankee's. irrelevant. argument to compel must be rejected.
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Interrogatory No. 80 i
In addition to its " legal opinion" objection (discussed in Part I of this Answer), Vermont responded to this i
interrogatory that " Vermont has not yet made a determination."
As noted repeatedly in this Answer and in Vermont's Answer to Vermont Yankee's first motion to compel, it is entirely appropriate for Vermont to develop its case through the discovery process.
The "no determination" response is thus both truthful and appropriate.
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Interrogatory No. 81 See Part II.A of this Answer, Interrogatory No. 82 i
The identifications of weaknesses in Vermont Yankee's maintenance program are not, as Vermont Yankee contends,
" bland" assertions of " lack of assurance," but rather are serious (at least in the opinion of the Board (Memorandum and Order of January 26, 1990 at 46) and Vermont) instances in which Vermont Yankee has not demonstrated its claims in the application nor met the 10 C.F.R. S 50.57 standard.
This portion of Vermont Yankee's agrument to compel is without merit.
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Likewise without merit is_ Vermont Yankee's argument concerning' Vermont's legal objection (see Part I.A.).
Considering Vermont's argument in Part II.D of this Memorandum, the response to this interrogatory is fully responsive and complete.
For these reasons, no further response should be compelled.
Interrogatories No. 83, 84, and 45 See Part II.A of this Answer.
Interrogatory No. 86 As part of its response to this interrogatory, Vermont provided an answer similar to those provided for Interrogatories No. 46, 77, 81, 83, 84, 85, 88, 91, 94, and 97, which are discussed in Part II of this Answer.
Vermont's Response No. 86 also references its responses to l
Set No.
1, questions 8, 9, and 10. ' Vermont Yarikee's Motion to Compel claims only that Response No. 86 is deficient for the same reasons as it claims Responses No. 46, 77, 81, 83, 84, 85, 88, 91, 94, and 97 to be inadequate.
Vermont Yankee's Motion to Compel with respect to Response No. 86 should be denied for two reasons.
- First, the. Motion to compel is silent as to why the referenced Set No. 1 responses 8, 9,
and 10 do not adequately respond to this interrogatory.
Second, as discussed in Part II of this Answer, Vermont Yankee's claim that Responses No. 46, 77, i
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I 81,-83, 84, 85, 88, 91, and 97 are inadequate must be rejected.
i Interrogatory No. 87 See Part II.B of this Answer.
Interrogatory No. SS 3
See Part II.A of this Answer.
i Interrogatory No. 89 Vermont Yankee seeks to compel further answers-to this interrogatory on the same grounds as it relies on for the interrogatories discussed in Part II.A above.
Please see that section of this Answer for Vermont's reply to Vermont Yankee's argument.
Interrogatory No. 90 See Part II.B of this Answer.
Interrogatory No. 91 See Part II.A of this Answer.
?
Interrogatory No. 92 See Part II.D of this Answer.
Interrogatory No. 93 See Part II.B of this Answer.
Interrogatory No. 94 L
See Part II.A of this Answer.
i Interrogatory No. 95 Vermont Yankee seeks to compel further answers to this interrogatory on the same grounds as it relies on for the L
42
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interrogatories discussed in Part II.A above.
Please see
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that section of this Answer for Vermont's reply to Vermont-i Yankee's argument.
Interrogatory No. 96 See Part II.B of this Answer.
Interrogatory No. 97 See Part II.A of this Answer.
Interrogatory No. 98 See Part II.D of this Answer.
Interrogatory No. 99 i
See Part II.B of this Answer.
t Interrogatory No. 100 In this interrogatory Vermont Yankee asked Vermont to
+
" define what is meant by SOV by the term ' tested with satisfactory performance' including the testing interval requirement and the acceptance criteria implied thereby."
[
Vermont responded to this request and explained what it L'
meant by the phrase.
In its Motion to compel Vermont Yankee complains that Vermont's response contains "[njo explanation of what would constitute ' satisfactory performance'...."
That was not the question; the question asked for what I
I Vermont meant by the phrase " tested with satisfactory performance," and Vermont responded to that question as o
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Vermont: Yankee. also1 contends that-Vermont's response does S
not-describe any " acceptance criteria." -Vermont did not in
' ts Contention.7 refer to or rely on any " acceptance i
criteria.":>That Vermont Yankee recognizes this-is clear by, the wording of Interrogatory No. 100, which refers'to imolied acceptance criteria.
Additionally, the interrogatory-is-not a model of clarity; it asks Vermont to a{
" define what,is meant" by the phrase, including-... the acceptance criteria implied thereby."
As best vermont could interpret the question, it sked what Vermont meant in using-the quoted phrase.
Vermont's response explained in relevant part that any " implied acceptance criteria" should be mutually agreed upon.
This is Vermont's meaning, and that-
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.is'what the-question appears to request.
Thus no further'-
response should be compelled.
-Interrogatory No.-101
' Vermont's Response No. 101 is clear and complete:
"[C)hanges" must be " proven effective."
7(":mont states no facts'nor evidence because it relys solely on the expert opinion of its consultant.
Therefore, no further response should be compelled.17
'17 The licensee's footnote 10 requires comment.
Vermont Yankee. exhibits great inflexibility in its thought process regarding this proceeding.
Since this is the first hearing regarding plant life extension (contrary to the licensee's semantics, Vermont = believes that "a rose by any other name is still a rose"), it is not clear what the possible boundaries of 44
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' Interrogatory: No. 106 -
. Vermont's response was clear since Vermont Yankee correctly understood that it-was "Yes."
However, Vermont Yankee-does not-wish'to show that,it clearly understands the
,1 daily process under which.it interacts with NRC in the operation of the plant, the very process described in-this-response.
Often, NRC imposes unwritten requirements.through its resident inspectors,- Regional Office and the Division of Nuclear Reactor Regulation.
Impressions of actions which would be accepted are gained.through. telephone-calls and meeting with the NRC, and often these actions are i
. implemented without any guiding, specific written requirement.
The decision to replace the UPS is just such a
. situation.- lIn order to maintain its high ratings (e.g.,-
SALP) Vermont Yankee " voluntarily" agrees to replace this reliability outlier.
Vermont submits that this process-Board actions are, for an amendment which is not effective for seventeen years.
It is a. wonder to Vermont that Vermont Yankee thinks " daily over[ sight). of Licensee performance" by the Board is a possibility.
Vermont certainly does not.
But delay of the decision until Vermont Yankee has done what is necessary to demonstrate reasonable assurance (if it ever can) is certainly possible, even if it takes a number of years to work the kinks out'of its overhauled maintenance program.
And while this remedy may not be appropriate for the original operating authority (because it is not possible in that instance), it may very well be appropriate in this proceeding (because it is possible).
45 i
l
W g.3,, 7
..c p-
-1 constitutes a " requirement" although not a written
~
requirement ~18' 3
Vermont Yankee > understands these_ types of requirements ca
'well, and.therefore;its arguments to. compel are " straw men"
-which have no merit.
But in addition, Vermont has identified a specific-requirement in Draft Regulatory Guide;
.DG-1001.
Vermont believes.that the content ~of this.
regulatory guide neeC,s to be considered for this proceeding.
sincelit:is part of the NRC' resolution the ?.r.aintenance program concerns.
Since Vermont-has presented a complete and truthful
-response, no further response,should be compelled.
Interrogatory No. 107
- See Part II.C of this Answer.
Interrogatory No.-108 In'its Motion to Compel Vermont Yankee's argument
-concerning this interrogatory in no way relates to the question or to; Vermont's response.
It appears that Vermont-Yankee inserted the wrong choice of one of its standard
-arguments.
Vermont Yankee's completely irrelevant argument must,be rejected.
18 Vermont identified this process of " voluntary commitments"
( '..-
as requirements-in Response No. 2, apparently overlooked by Vermont Yankee.
46
P, Ny -. * -.
s
.1.
-Intstrogatory.No. 109 h
See Part II.C of this Answer.
g.
Interrogatory No. 110:.
t
'See Part'II.E of this Answer.
$o Interrogatory No.-111 See Part-II C of this Answer.
.t.
= Interrogatory =No. 112 See Part II.E+of this Answer.
Interrogatory'Wo.l113.
'See Part II.C of this Answer.
Interrogatory:No. 114' See Part II.D of this Answer.
Interrogatory No. 115 See-Part II.C of'this Answer.
In'terrogatory No. 116 See-Part II.E of this Answer.
-Interrogatory No. 117
'See Part II.C of this Answer.
-Interrogatory No. 118 See Part-II.E of this Answer.
Interrogatory No. 119 See Part II.C of this Answer.
Interrogatory No. 120
-See Part II.E of this Answer.
D 47
.. _ _.. _ ~
g. -- ; e t
- .f >
Interrogatory No. 122 See;Part II.D of this~ Answer.
Interrogatory No. 124; See Part'II.C'of this Answer.
. Interrogatory No.'175 See Part II.E of this' Answer.
Interrogatory.No. 126 See Part'II.CEof this-Answer.
Interrogatory No. 127 See:Part-II.E of1this Answer.
s
' Interrogatory No.L128 See Part II.C of this Answer.
Interrogatories lNo. 129, 131, 133, 135, and 137 See Part II.E of-this Answer.
~
Interrogatory No. 138 Vermont's Response No. 138 refers to its response to Set No. : 1, question 6.
In its Motion to compel Vermont Yankee
-notes that response 6 to Set.No.-1 is subject to a separate lpending motion to compel.
Vermont has previously responded to that motion.to compel.
Interrogatory No. 145 g
See Part II.C of this Answer.
Interrogatory No. 147 This interrogatory, which asks Vermont to compare the
" adequacy of the coating system" in the present licensing 48
'C}'
p.
.g 1,:
~l.s term and in-the extended-licensing term.
Vermont properly objected to-Lthe-relevance of-this interrogatory.because'this proceeding is not considering the ability of the Vermont-
-Yankee-plant;to satisfy-applicable requirements during the balance'of;the current' licensing period.. Therefore, the adequacy;or inadequacy of the coating system during the-current licensing term is~not an issue in=this proceeding,.
and the interrogatory need not be answered.
Vermont Yankee's' argument against Vermont's objectionLis obviously'without merit.
The licensee wishes to ignore any aging process related to its painting system which would 1make the unresolved problem in the present time, even worse in the extended period.
Because of the lack of;al valid ~
argument 1to compel, no further response should be' compelled.
Interrogatory No. 148 See PartLII.C of this Answer.
Interrogatory No. 150 Yet again Vermont Yankee is dissatisfied with Vermont's response to a " define what is meant by SOV" interrogatory.
In its Motion to Compel Vermont Yankee claims that "[t]he interrogatory asked SOV to explain its assertion that 'ECCS criteria is not met.'"
Vermont Yankee misstates its own interrogatory, which asked Vermont to " define what is meant by SOV," not "to explain its assertion."
Vermont's Response No. 150 provides the definition of what Vermont meant by the 49
' ~:g, g _ e )
+
~
phraseLquoted in the; interrogatory.- Having responded fully:
to-the-interrogatory, Vermont should not-be compelled to provide any furtherl response.
7 Interrogatory No.-152 Vermont Yankee contends that vermont "has simply.not.
-answered.the question."
ThatJis_ wrong.
Vermont clearly-states its reasonLin Response No. 151, to which-Response No.
- 152 refers:
"[F) lashing in the suppression pool could cause ECCS pumps to fail on loss,of-suction."
This is a full and complete statement of Vermont's position on the statement-queriedLin-Interrogatory No. 152.
However, due to the situation described in Part II.A of this Answer, this-is all
--that>could be said.
Facts, evidence and expert opinion cannot be developed until details about the vent are known.l' Since<the answer is' responsive,;no further response should be compelled.-
Interrogatory No. 155 Vermont's Response No. 155) stated:
, Vermont objects'to this question on the grounds that it is-burdensome, that it seeks disclosure of the thought processes of~ counsel, and that it seeks disclosure of case strategy.
l' Vermont Yankee's footnote - 10 regarding sub-part o of Contention VIII is off point.
It wishes to ignore the first part of sub-part o, "One adverse consequence of the failure of coating systems and production of other corrosion products is the fouling of ECCS pump s_uctions such that ECCS criteria is not met," which-is clearly related to maintenance.
50
- lc
x,a_.
6 -
'In-its. Motion to. Compel _ Vermont Yankee = argues 4that these objections "are without merit." -Quite to the contrary, the-ebjections are=well-founded and_ appropriate.
First, to-
. comply with:the interrogatory.would' undeniably be a great-burden to Vermont,-_in that the interrogatory seeks, for each-prior-interrogatory that vermont could'not answer or answer-p
= completely:
-a description of the additional information needed;
-every reason why the additional information is needed;~
-the steps Vermont-is taking to acquire the information; and
-Vermont's intentions concerning supplementing its responses.
e Vermont Yankee contends that providing this information cannot be burdensome because Vermont Yankee's1 interrogatories " simply track the allegations in SOV's contentions."
This facile argument must be quickly rejected for two reasons.
First, the interrogatories do n2t " simply track" Vermont's contention.
For example, Interrogatories No. 87, 90, 93, 96, and 99 ask Vermont to supply information that it has no duty to develop; as noted in Section II.B of this Answer, with respect to those interrogatories it is x
incumbent upon Vermont Yankee to develop the requested information.
Second, even if the interrogatories did
" simply track" Vermont's contention, Vermont Yankee's 51 i
,;gs*~V 3
L 4
strategy. of: asking several questions,, each with multiple sub-parts, concerning.each-and every term and phrase'in-
. Vermont's' contention-isJnothing more than an attempt'to divert = Vermont's. limited resources'from focusingfon'further 9
. development.of its case.- Vermont has responded to.these voluminous requests with all responsive information in its-
,g; possession, a chore that;itself has proven burdensome and L,
has-severely interfered with the further development of i
- Vermont's case.-
To force Vermont to identify and describe L
. each and'everyl piece of information that it does Iuzt possess-that may be needed to further respond to Vermont Yankee's 3
i interrogatories is totally unreasonable and far beyond CJ m
- Vermont's means.
To grant' Vermont Yankee's Motion to Compel-j with respect to Interrogatory No. 155 would force Vermont to i
develop information that it would not!otherwise develop in
,1
+
this proceeding and strain the state's resources'in this
- l I">
proceeding toothe breaking point.
j InJaddition to the outrageously burdensome nature of'this
~ interrogatory, the question seeks disclosure of privileged information concerning Vermont's case strategy and thought l
processes of counsel.
In its Motion to compel vermont-
]
,.a..
Yankee employs two subtle " misdirections" in its argument on this point.
First, Vermont Yankee contends that Vermont's AO objection is controlled by Fed.R.Civ.P. 26 (b) (3) and 10
)
C.F.R.
S 2.,740(b) (2), and that thus only " documents and i
52 l
- w
x y.
&s e >l Ey n
i
~
tangible things" prepared in anticipation'of: litigation;are-protected.'.This argument must-be squarely rejected.. As?the.
4
~
' court in Ford-v.-Philins Electronics' Instruments Co.,
82 l'
F. R. EN. 3 59 ' (E. D. Pa. - 197 9 ), stated:
h aN e
Too much:can?be made, however, of-the observation'
' that Rule' 26(b) (3) -is not controlling because the dispute doesinot involve.a. document or tangible thing.- It does not follow from this-that the desired discovery is i
K n' necessarily permissible.
y;.
m
- The distinction implicit in Rule 26(b) (3) between 4
E.s
' documents and tangible things, which are discoverable i *
'upon the proper showing, and facts for which no special 4
r
. showing is required, in no way intimates that Rule 26 (b) (3) i opens.to: discovery an attorney's mental impressions.' On the contrary,' the Rule provides thatJ when discovery is. ordered upon the proper showing, "the.
j court:shall protect against disclosure of the mental j
impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party.concerning
-4
.the litigation."
Fed.R.Civ.P. 26 (b) (3).-
The Rule in no way implies that mental impressions not embodied in documents are otherwise discoverable.
Such a' reading of the Rule would be contrary to the comments of the' l
Advisory. Committee on the 1970 amendments to the Federal Rules of Civil Procedure.
"The courts have steadfastly-a safeguarded 1against disclosure of lawyers' mental impressions and legal theories, as welluas mental 3
impressions and subjective evaluations of investigators and claim agents."
Advisory Committee Notes, 48 F.R.D.
487, 502.
Moreover, such a reading would fly in the face 4
of "the general policy against invading the privacy of an attorney's course of preparation" of a case.
Hickman v.
]
Tavlor, supra,-at 512, 67 S.Ct. at 394.
h 82 F.R.D.
at 360.
The second " misdirection" is the attempt to focus the
- c c
Board's attention on " facts that the adverse party's lawyer has learned" and "the existence or non-existence of f
~
53 t
-[.
! Y ' I.s ;
o<. 6 -.;
u, l
q' documents."
Motion to Compel at 73._
Interrogatory No. 155-
-clearly inquiresiinto Vermont's case strategy ("the steps sVermontiisitaking to: acquire the information"). 'Even where th'e:particular pieces of information'are'not themselves' subject:to privilege, counsel's " selection'and compilation" of the-.information " falls within the highly-protected category of opinion workfproduct" and thus_the' selection'and-compilation is not discoverable.
Soorck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985).
As in Soorck, in this case
-Interrogatory No. 155, sub-parts (a), (b), and (c)-, ' seeks to reveal " counsel's legal opinion as-to the evidence relevant
'both,to'the allegations in the. case and the possible-legal defenses" and thus'is not proper-subject matter for discovery.
IsL,at'313.
Inlits responses to this second set of interrogatories Vermont has provided all responsive, non-privileged
- information available to it.
Vermont recognizes and will comply with its duty to-supplement its responses.
To provide any information beyond the existing responses and any-. required supplementation would disclose thought R
. processes of counsel and case strategy, and thus Vermont Yankee's motion to compel concerning Interrogatory No. 155 must be denied.
t>
54 i
't..
,n-ca. < 6:
m, i,-
.i-conclusion For the reasons set.forth above, the Board should deny.
Vermont-Yankee's-Motion to Compel and should-issue'ai
, Protective, Order that provides that Vermont need not supplement any of its responses to Vermont-Yankee's second
- set of interrogatories'other than the supplements which Vermont has agreed to provide, as noted herein.
By its attorney, e
Kurt J son Department of Public Service 120 State Street Montpelier, VT 05602 (802) 828-2811 Dated:- May 22,-1990 4
t i
9 55
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' 7, g,g g
' UNITED STATES OF AMERICA USNRC
-T i
NUCLEAR-REGULATORY COMMISSION before the P
ATOMIC SAFETY AND LICENSING BOARD
'90 MY 24 - P 139 -
W In'the Matter of 5Nr Oh $l/[k VERMONT YANKEE NUCLEAR
)
Docket No. 50-271MSDA-4 POWER CORPORATION'
)
-(Operating License-
)
Extension)
-(Vermont; Yankee-Nuclear
)
Power Station)1
)
)
CERTIFICATE OF SERVICE I'hereby certify that;on May 22, 1990,'I made service of
" State of' Vermont Answer in Opposition to Vermont Yankee Nuclear Power Corporation Second Motion to Compel and State of Vermont Application for Protective Order" in accordance with rules of the Commission'by mailing a copy thereof postage prepaid to the following:
Administrative' Judge Administrative Judge
-Robert M. Lazo, Chairman-Jerry Harbour Atomic Safety and Licensing Board Atomic Safety and' Licensing U.S. Nuclear Regulatory Commission Board Washington ~, DC 20555 U.S'.- Nuclear Regulatory Commission Washington, DC 20555
' Administrative Judge Ann P. Hodgdon, Esq.
-Frederick J.
Shon Patricia A. Jehle, Esq.
Atomic Safety and Licensing Board Office of the General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory "e
- Washington, DC 20555 Commission Washington, DC 20555
't R. K. Gad, III, Esq.
Anthony Z. Roisman, Esq.
Ropes.& Gray Cohen, Milstein, Hausfeld &
JOne International Place Toll Boston, MA 02110 Suite 600 1401 New York Avenue, N.W; N
Adjudicatory File Washington, D.C.
20005 Atomic-Safety and Licensing Board Panel U.S.N.R.C.
Washington, DC 20555 3-emq7s-Kurt Janson V Special Assistant Attorney General Dated: May 22, 1990 i
--_d