ML20045G953

Intervenors Motion to Compel Answers to Interrogatories & Document Requests by NRC Staff.* Requests Board to Compel NRC to Answer All Interrogatories & Produce All Requested Documents.W/Certificate of Svc

ML20045G953
Person / Time
Site:	Vogtle
Issue date:	07/12/1993
From:	Kohn M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	Atomic Safety and Licensing Board Panel
References
CON-#393-14114 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9307160183
Download: ML20045G953 (11)

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July II'[ 1993 I

UNITED STATES OF AMERICA '93 Ju_14 P 3 31 l NUCLEAR REGULATORY COMMISSION i ATOMIC SAFETY AND LICENSING BOARD

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Before Administrative Judges: . . ..",;

Peter B. Bloch, Chair l Dr. James H. Carpenter i Thomas D. Murphy

)

In the Matter of )

) Docket Nos. 50-424-OLA-3 ,

GEORGIA POWER COMPANY ) 50-425-OLA-3 l et alz, ) )

) Re: License Amendment '

(Vogtle Electric Generating ) (transfer to Southern Nuclear)

Plant, Unit 1 and Unit 2) )

) ASLBP No. 93-671-01-OLA-3 INTERVENORS' MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND DOCUMENT l REQUESTS BY THE STAFF OF THE l U.S. NUCLEAR REGULATORY COMMISSION  !

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Background

On July 2, 1993, the Nuclear Regulatory Commission Staff filed with the Atomic Safety and Licensing Board ("ASLB") a response to Intervenors June 24, 1993 Interrogatories and Request for Production of Documents (" Staff's Response"). Staff uniformly objects to responding to each and every interrogatory question and document request propounded by Intervenor. As such, Intervenor, pursuant to 10 C.F.R. 5 2.720(h) (2) (ii) and 10 C.F.R. 6 2.744, respectfully requests that the ASLB issue an order to compel the Staff to answer interrogatories and produce documents.

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1 i 1 Argument Staff appears to raise two main objections to Intervenor's

interrogatory and document request. First, Staff objections based on the assertion that the request was not properly filed with the Board. The fact remains that Intervenor did comply with the filing requirement set out in 10 C.F.R. 5 2.720(h) (2) (ii) inasmuch as Intervenor served the interrogatory and document j

, requests on the ASLB.1 l

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Second, Staff objects to the document requests on the basis i l

that the request did not set forth the relevance of the ,

l information sought to the proceeding.2 In response to this l i assertion, Intervenor sets forth general information as to why the document requests are relevant, and further sets forth a statement of relevance for each specific document request.3 4

1 Staff asserts that 10 C.F.R. 5 2.720(h) (2) (ii) mandates that Staff file answers to the interrogatories and document requests "only upon a finding by the presiding officer that the responses are necessary to a proper decision in the proceeding and that the information is not reasonable (sic) obtainable from other sources" (emphasis added). This is simply not the case.

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Staff can wait for an order if they wish, but NRC regulations offer no indication that in order for the Staff to answer interrogatories they must be ordered to do so by the presiding officer.

2 Intervenor is very much troubled by Staff's demand that a statement of relevance be made for each document request. In this respect Staff appears to be biased towards the licensee inasmuch as Staff never required Georgia Power Company ("GPC") to i'

make any such statements of relevance before Staff responded to document requests filed by GPC.

3 The NRC Staff has not displayed a willingness to cooperate with intervenor during discovery proceedings. When compared to the Staff's response to GPC's request to production of documents, one can see a stark difference in willingness to cooperate with discovery. Note that in the Staff's first 2

i Document Reauests l

The following is a list of general explanations of relevance J

for Intervenors document requests. Each documents request will 4

be followed by reference to " Statement A," " Statement B" or both.

Statement "A" is as follows:

A. The request is intended to elicit factual information reasonably related to whether GPC has submitted

material false statements in LER 90-06 and the COA.

Such documents requests are calculated to reveal inconsistent or contradictory statements or facts  !

asserted by GPC officials.

4 Statement "B" is as follows:

l 1 B. The request is related to the factual basis of the admitted contention that GPC lacks the requisite character and competence to receive a license from the i

. board.

Below Intervenor lists the document request and the  ;

j, l appropriate statements of Relevance related thereto.

Document Request No. 1: Statement A.

Document Request No. 2: Statement A. I Document Request No. 3: Statement A.

Document Request No. 4: Statement A.

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Document Request No. 5: Statements A and B.

Document Request No. 6: Statement B.

Document Request No. 7: Statement B.

response to GPC's Document production request, Staff stated: "If any questions arose regarding whether a document was relevant to those issues, it was resolved in favor of identifying the document," while further offering to work closely with GPC to discuss any concerns they may have; offering to supplement their responses and to make counsel available for clarification.

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l Document Request No. 8: Statements A and B.

7 Document Request No. 9: Statement B. ,

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Document Request No. 10

Statement B (as related to opening I of dilution valves). l

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\ l 4 Document Request No. 11: Statement B. j

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Document Request No. 12: Statement B (as related to Safeguards violations).

f' Document Request No. 13: Statement B (as related to illegal license transfer).

l Document Request No. 14: Statement B.

1 Document Request No. 15: Statement B.

Document Request No. 16: Statement B.

i The information sought in the document requests, such as a data used, assumptions made, and analyses performed by the NRC during their past and present investigations, are necessary to a ,

4 I' j proper decision in this proceeding; are reasonably calculated to 4

lead to discoverable evidence; and are not attainable elsewhere.

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In fact, much of this type of information is only known to Staff.

Moreover, Staff does not attempt to comply with 10 C.F.R. 5 2.790 4

inasmuch as Staff does not identify any documents or sources of I

information whatsoever; and the assertion that a document request lacks relevance is not followed by a discussion of how or why the j interrogatory or information sought is not relevant.'

As stated above, the Staff objects to answering document requests for "failing to conform to 10 C.F.R. 5 2,744(a). Intervenor once again states that no such demand was made of GPC and wonders why this rule is only now being invoked.

Regardless, even cursory review of the document requests reveals their relevance to the admitted contentions.

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1 Finally, with respect to Staff's objection to request No. 5, Staff has construed this request too broadly. Intervenor intended to and does limit this request to those interview statements taken from officials of SONOPCO, Alabama Power Corporation, and Georgia Power Company and/or any interview relating to any incident occurring at Plant Vogtle.

Interrocatories l

With respect to Interrogatories 1-18, Intervenor has the right to know the basis for any NRC Staff technical assessments of issues related to the admitted contention and facts related to Staff's knowledge of facts related to LER-90-006 and/or the COA.

For example, interrogatories concerning the Diesel Generators are specifically intended to elicit factual information reasonably related to whether GPC submitted material false statements in LER 90-006, LER 90-006 Rev 1 and the COA. Any and all information relating to GPC's actions concerning the diesel generators and what they reported to the NRC is directly relevant to this l

licensing proceeding. The Staff's claim of lack of relevance can i only be an attempt to evade submitting a response on such a critical subject.

For interrogatory numbers 18 through 51, the Staff asserts that these interrogatories are "a thinly disguised disagreement with Partial Director's Decision." Whether or not Intervenor

, agrees or disagrees with the Partial Director's Decision, or f whether the interrogatories seeks information related to the Partial Director's Decision, does not justify Staff's refusal to 5

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I answer. Intervenor may inquire with the NRC Staff about how they reached their conclusions discussed in the Partial Decision,

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especially when the findings made in that decision run counter to the facts surrounding the particular issues involved. These interrogatories are intended to elicit facts related to the Diesel Generators, FAVA,.the Miscalculation of the Shutdown i l

Margin, Safeguards, and other information related-to the management of Plant Vogtle. All information sought is directly related to this proceeding to the extent that it is reasonably calculated to lead to' discoverable evidence indicating a deficiency of character and competence in GPC management personnel and structure. The fact remains that the interrogatory questions related, by and large, to the basis of the Partial Director's Decision issued by Staff in response to Intervenor's-previously filed 2.206 Petition. Inasmuch as Staff. issued the Partial Director's Decision, Staff can answer these interrogatory questions.

Additional support for the appropriateness of individual 1

interrogatory questions is set out below.

With respect to Interrogatory No. 1, it is inconceivable that false statements made in the coa are not factually related l to the admitted contention. Moreover, a finding that there are l

false statements in the COA is relevant as to whether SONOPCO has the requisite character and competence to obtain a license.

With respect to Interrogatory Nos. 2-6, NRC Staff's Response does not appear to have been made in good faith. Little sense 6

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can be discerned from the responses submitted. Intervenor is

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merely seeking to learn the extent to which NRC officials had'any l knowledge or involvement with respect to the-inaccurate l

information contained in the COA or LER 90-006. Knowledge of i

these contacts and facts are relevant to the admitted contention of material false statements, and are necessary to a proper decision in the proceeding. That these documents contain inaccurate information is not contended by GPC. Thus, an objection based of "OI involvement" is entirely without' merit.

With respect to Interrogatory No. 7, Staff's assertion-that this interrogatory is hypothetical is unfounded. The interrogatory merely asks the staff to make a determination based on their knowledge of the regulations listed.

Interrogatory No. 8, contrary to Staff's assertion, is concisely worded, Jeeks specific information that only the Staff I has knowledge, and is directly related to determining GPC's knowledge material false statements.

With respect to Interrogatory No. 9, Staff contends that a mysterious premise is contained in this Interrogatory without identifying that premise, and refused to answer based on the fact it is related to the subject of an OI investigation. That this interrogatory relates to an ongoing OI investigation is not contested. The fact remains that it directly relates to this ongoing ASLB proceeding. NRC Staff's understanding-about the meaning of the words used in the COA and LER are facts that may make up part of the basis of NRC-OI's investigative report, but 7

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a j these facts are independent and are known to Staff and not OI.

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Indeed, what Staff has told OI is not as relevant as to what Staff plans to state to this Board. A factual statement from NRC l 1

4 Staff about its interpretation of the LER when it was originally l received is discoverable and is directly relevant to whether

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false statements were made by GPC.

i With respect to Interrogatory No. 10, Staff's claim that it is misleading is insupportable. The truck that backed into the

! transformer is the reason why GPC had to rely upon the Diesel l Generator. The Site Area Emergency did not commence until after I

the Diesel Generator tripped and could not be restarted. No l diesel trip, no Site Area Emergency.

I Interrogatory No. 11 is reasonably calculated to lead to discoverable evidence in that the response could reveal l l

inconsistencies in GPC's version of how the Diesel Generators were repaired and how the tests were reported to the NRC.

!. Interrogatory No. 12 is reasonably calculated to obtain 1

information concerning how many consecutive starts of the Vogtle

, Diesel Generators would relieve the Staff's concerns about their operational reliability. The question is clear, unambiguous, and above all, answerable.

The Staff's refusal to answer Interrogatory No. 13 assumes the "given fact" is hypothetical. Nonetheless, interrogatory 13 follows the same line of inquiry of number 12 in terms of just how many starts of the Vogtle Diesel Generator, under these circumstances, is necessary for a finding of reliability.

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d i conclusion For the foregoing reasons, Intervenor respectfully requests the Board to compel NRC Staff to answer all Interrogatories and

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produce all requested documents. i i

Respectfully submitted,

) d' i

i Michael D. Kohn Kohn, Kohn, and Colapinto a

517 Florida Avenue, N.W.

Washington, D.C. 20001-1850

, (202) 234-4663 l

i j Attorney for Intervenor Dated

July 12 1993 On Brief:

Michael Lopez i

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UNITED STATES OF AMERICA ,(]p g NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

'03 Jll 14 P4 :04 Peter B. Bloch, Chair Dr. James H. Carpenter Lo

' 'F' Thomas D. Murphy ,( 4 ,

)

In the Matter of )

) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY ) 50-425-OLA-3 et alz, )

) Re: License Amendment (Vogtle Electric Generating ) (transfer to Southern Nuclear)

Plant, Unit 1 and Unit 2) )

) ASLBP No. 93-671-01-OLA-3 CERTIFICATE OF SERVICE I hereby certify that on July 12, 1993 Intervenor's Motion to Compel Answers to Interrogatories and Document Requests by NRC Staff was served by first class mail upon the following:

Administrative Judge Peter B. Bloch, Chair Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge Dr. James H. Carpenter Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge Thomas D. Murphy Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Charles A. Barth, Esq.

Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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John Lamberski, Esq.

l Troutman Sanders Suite 5200 600 Peachtree Street, N.E.

Atlanta, GA 30308-2216 l

',

• Office of the Secretary (* Original and two copies) l Attn: Docketing and Service j* U.S. Nuclear Regulatory Commission Washington, D.C. 20555 4

, Office of Commission Appellate i Adjudication U.S. Nuclear Regulatory Commission j Washington, D.C. 20555 i

i Ernest L. Blake, Jr.

l David R. Lewis SHAW, PITTMAN, POTTS &

i TROWBRIDGE

} 2300 N Street, N.W.

1 Washington, D.C. 20037 By:

Michael D. Kohn Kohn, Kohn & Colapinto, P.C.

1 517 Florida Ave., N.W.

! Washington, D.C. 20001 (202) 234-4663 054\ cert.gpc 1

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