ML20052F330
| ML20052F330 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 05/10/1982 |
| From: | Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO. |
| To: | PALMETTO ALLIANCE |
| References | |
| NUDOCS 8205120353 | |
| Download: ML20052F330 (16) | |
Text
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UNITED STATES OF AMERICA mymn NUCLEAR REGULATORY COMMISSION W
BEFORE THE ATOMIC SAFETY AND LICENSING BOARDu2 WJ 11 A9 :37 In the Matter of
)
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DUKE POWER COMPANY, et al.
)
Docket Nos. 50-4
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50 (Catawba Nuclear Station,
)
S Units 1 and 2)
)
J RECEIVED gi' MAY 111982 m-3 APPLICANTS' OBJECTIONS TO n man mmm comes:ss
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PALMETTO ALLIANCE FIRST SET OF mar f$c*"
8 INTERROGATORIES AND REQUESTS TO PRODUCE
'tb d'
Duke Power Company, et al.
(" Applicants") object N
answering Palmetto Alliance's
(" Palmetto") First Set of Interrogatories and Requests to Produce, filed April 20, 1982, pending final resolution by the Licensing Board, Appeal Board or Commission itself, if necessary, of their and NRC Staff objections to the Licensing Board's March 5, 1982 Mem-orandum and Order.
I.
INTRODUCTION By Memorandum and Order of March 5, 1982, this Atomic Safety and Licensing Board (" Licensing Board"), ruled on pro-posed contentions filed in the captionec proceeding.
Therein,-
the Licensing Board, inter alia, conditionally accepted Pal-metto proposed Contentions 6, 7,
18, 40 and 43. 1/
The
-1/
Intervenor Carolina Environmental Study Group's ("CESG")
Contentions 13 and 17 are identical to Palmetto Conren-tions 40 and 43 Accordingly, the instant objections gj5C)3 regarding Palmetto Contentions 40 and 43 would apply to 5
any discovery request filed by CESG with regard to its Contentions 13 and 17.
8205120353 820510 PDR ADOCK 05000413 G
_. _ _. _ _ _. _ _ _ _ _ _.. ~
Licensing Board found these contentions to be lacking in the l
requisite specificity, but held that such specificity could t
be provided after discovery on these contentions.
Order of 1
j March 5, 1982 at p. 13.
i
]
Subsequently, on March 31, 1982, Applicants filed its objections to the Board's March 5 Order in the form of a i
Motion for Reconsideration.
Therein, Applicants questioned,
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inter alia, the use of the discovery process to cure defective contentions.
Applicants expressed their belief that, if such ruling were not reversed and Intervenors were not made to specify the factual bases for their contentions, Applicants would be subject to serious adverse effects because of broad i
and unrestricted Intervenor discovery requests recarding 4
these vague, nonspecific contentions. See Applicants Merch 31, 1
j 1982 Objections...at pp. 38-42, 2/. The NRC Staff supported Applicants' position in this regard. See NRC Staff's Objec-tions to Licensing Board's March 5, 1982 Order on Admission of Contentions, dated April 4, 1982.
On April 9, 1982, Applicants filed interrogatories upon l
Palmetto and CESG.
Those interrogatories were directed solely i
i to the underlying factual bases of a number of Palmetto's 1
i 2/
Applicants' March 31, 1982 Motion for Reconsideration l
alternatively requested that the matters therein be l
certified to the Appeal Board.
The NRC supported Applicants' certification request. See NRC Staff's Response to Applicants' Motion For Certification of i
Certain Rulings In Licensing Board's Prehearing Con-ference Order, dated April 20, 1982.
1 and CESG's contentions, with particular emphasis on those contentions which the Licensing Board admitted to the pro-ceeding sub]ect to greater specificity after discovery. 3/
By Order of April 13, 1982, the Licensing Board informed the parties that, given the "other adjudicatory responsibilities of the Board" it would be unable to " consider and decide the objections raised by the parties" until late May or early June.
However, the Licensing Board also directed that dis-covery proceed as if the March 5 Order would " remain in full force and effect."
In short, though all but one of Palmetto's contentions and all of CESG's contentions are the subject of objections by both Applicants and Staff, the Licensing Board has chosen to order discovery to continue on those contentions pending any ruling by it.
The Licensing Board did indicate that it would entertain objections to discovery requests on those contentions, but such an objection could only be raised on the grounds that discovery on that contention is " unusually l
burdensome." 4/ (emphasis in original).
Thus, the Licensing 3/
Those contentions included Palmetto Nos.
6, 7,
18, 40 and 43 and CESG Nos. 13 and 17.
4/
The Board directed that even the permissible objections must be accompanied by a request for an "early ruling" on certain specific contentions.
Even then objections could be raised only on interrogatories addressed to those contentions which the Board had admitted on the condition that the Intervenor provide the requisite specificity following discovery.
The Board specifically stated that the "early ruling procedure" (and, Applicants (Footnote continued on next page.)
-4_
Board's April 13 Order, taken in combination with its admission of defective contentions subject to the requisite specificity through discovery, has the effect of removing from Applicants the ability to object to interrogatories on otherwise valid grounds, such as failure to seek relevant information, vague-ness, calling for legal conclusions, and not reasonably cal-culated to lead to admissible evidence.
II.
ARGUMENT The Board's April 13, 1982 Order provides for the filing of objections to discovery requests if the discovery request is (1) based upon a contention which has been objected to, and (2) unusually burdensome. 5/
The Commission's regulations (10 CFR SS2.740b(b) and 2.741(d) also provide for the filing of objections.
Pursuant to these authorities Applicants file (Footnote continued from previous page.)
assume, the limited right to object granted by the Board) does not apply to those contentions which the Board admitted on the condition that Intervenor provide the requisite specificity following availability of pertin-ent NRC Staff and Applicants documents.
Order of April 13, 1982 at p.
2.
5/
Commission regulations and case law contemplate that a Motion for Protective Order be filed contemporaneously with objections. See Susquehanna, infra, 12 NRC at 322-323.
Applicants are filing such a Motion on this date.
the instant objections. 6/
Applicants would note that Com-mission case law does not favor general objections to dis-covery.
Pennsylvania Power & Licht Co., et al. 'Susquehanna Steam Electric Station, Units 1 & 2), ALA3-613, 12 NRC 317, 323 (1980);
Boston Edison Company, et al. (Pilgrim Nuclear Generating Station, Unit 2), LBP-75-30, 1 NRC 579, 583 (1975).
Rather, it is necessary for the objecting party to address a request individually, viz. "to show that the interrogatory I
should not be answered - that the information called for is...
-6/
Applicants are cognizant of the Licensing Board's lan-guage that objections filed pursuant to its April 13 Order should be accompanied by a " request for a ruling on the reconsideration request as to that contention."
Applicants have not requested such an "early ruling."
Rather, Applicants have requested that this Board expedi-tiously rule on its objections, or altenratively, certify its objections to the Appeal Board.
Applicants reasons stem, in part, from the adverse impact the Board's rulings will have, and indeed, as described in the above text, are having, on the proceeding.
Under such a circumstance, Applicants are of the view that piece-meal resolution of obje.9tions will only exacerbate the situation and accordingly, the early ruline procedure is not requested.
Applicants position takes on added significance in light of their pendine request for suspension or stay of discovery. See Applicants' Renewed Motion For Certi-fication, dated April 26, 1982 at p.
4, n.5.
It is Applicants view that it is first necessary to resolve what issues are in controversy, before proceedina l
with discovery.
A suspension or stay of discovery i
permits this Board, and the parties, the time neces-l sary to resolve the issues in the first instance. See 10 CFR Part 2, Appendix A, Section IV(a) which provides:
l l
Once the key issues in controversy are i
identified in the special prehearing con-l ference order (52. 7 51a (d) ), discovery may l
proceed and will be limited to those matters.
l in some other way not the proper subject of an interrogatory."
Pilgrim, supra, 1 NRC at 583.
However, these cases address the situation wherein issues have been admitted to the proceed-ing upon a proper showing of specificity and bases by an Intervenor. See Pilgrim, supra, 1 NRC at 585.
Such is not the case in this instance.
Palmetto has filed discovery requests which are directed to contentions Applicants have objected to in their March 31, 1982 Motion for Reconsideration and their April 26, 1982 Renewed Motion for Certification.
As noted, the NRC Staff has similarly objected to these contentions.
Applicants sub-mit that sound legal reasons support both their and the Staff's objections.
Accordingly, pending disposition of such Motions, Applicants submit that they should not be required to respond to Palmetto's discovery request.
Indeed, to do so would result in relinquishing a position that is at issue in Appli-cants' Motions viz., that it is contrary to Commission recu-lation and agency case law to allow an intervenor to cure a defective contention through the discovery process. 1/
7/
By filing the instant objections in lieu of specific objections, Applicants' do not waive their right to file such specific objections if it becomes necessary.
_7_
Deferrinc discovery in this case 8/ until a decision is issued on Applicants' outstanding Motions is fully consistent with the practice under the Federal Rules of Civil Procedure.9/
As Professor Moore states, "When it appears that burdensome expense and effort may be avoided if any pretrial considera-tion may obviate it, the court may delay discovery until the determination of the possibly determinative issue." 4 Moore's Federal Practice, S26.70[2], n.10 (1981-82 Supp.). See also 4A Moore's Federal Practice, 533.27, n.32.
A case in point is Equal Employment Opportunity Commission v. Hickey-Mitchell Company, 372 F.Supp. 1117 (E.D. Mo. 1973).
There the EEOC sought an injunction against an employer's alleged discrimin-ation in employment.
The defendant moved for a protective order to postpone discovery pending a decision on whether it had a defense that the EEOC failed to make a good faith investigation of the claim of the charging party prior to bringing suit.
The court granted the protective order "for the reason thtt the expense and burden placed on the defen-dant...might.be obviated" by a decision on the substantive question. (372 F.Supp. at 1121).
A deferral of discovery i
8/
See n.6, supra, which references Applicants' pending request for deferral of discovery.
9/
The Commission in seeking guidance regarding discovery practice has consistently looked to legal authorities and court decisions construing the Federal Rules. See, e.c.,
Susquehanna, supra, 12 NRC at 322, n.6 and cases cited therein.
-g-has also been held appropriate where there is a pending motion for summary judgment. See Brennan v. Local Union Mo. 649, International Brotherhood of Teamsters, 494 F.2d 1092, 1100 (D.C. Cir. 1974). See also O'Brien v. Avco Corporation, 309 F.Supp. 703, 705 (S.D. N.Y.
1969). 10/
The NRC Staff likewise sees the merit in suspension or stay of discovery pending resolution of outstanding Motions.
In its pleading of May 7, 1982, the Staff state'd that absent a short delay, Going forward prior to resolution of underlying specificity objections to the Board's March 5, 1982 order will inevitably lead to delay far beyond the intended deadlines for conclusion of this discovery. See NRC Staff Response to Applicants' Renewed Motion For Certification
...at
- p. 10.
i Further, the implication on schedule should not be great in light of Applicants' revised schedule of operation.
See 1
attached letter.
l Applicants also maintain that to respond to Palmetto's discovery request prior to a dispositive ruling on objections would be an undue burden.
The Board has admitted nonspecific contentions.
In order to ascertain the nature, basis and 1
I 10/
Applicants would request that any deferral of discovery to include a preservation of their right to file Motions to Compel with regard to the interrogatory responses from Palmetto and Carolina Environmental Study Group.
Applicants have deferred filing such motions pending Board action on its suspension or stay request.
If the Board denies Applicants' request for a suspension or stay of discovery, Applicants will file such Motions forthwith.
9-l specific aspects of the several contentions Applicants filed interrogatories seeking that information from Palmetto and CESG.
However, Palmetto's responses are so totally devoid of information that it is readily apparent that the conten-tions are lacking in specificity and basis. 11/
To extraciate 11/
Examples of the insufficiency of Palmetto's response, and thus, of the lack of specificity and basis of Palmetto contentions, are set forth below:
Palmetto Contention 6 1.
Q.
What do you mean by the term " substandard workmanship"?
A.
Design, fabrication, construction, and testing below applicable standards.
I 2.
O.
What standard do you contend has not been met?
A.
Those required for safe operation, includ-ing 10 CFR Part 50 Appendix A General Design Criteria for Nuclear Power Plants.
3.
Q.
How do you contend that standard has not been met by the workmanship at the Catawba station?
A.
Intervenor at present lacks sufficient knowledge to answer and is awaiting responses to its Interrogatories and Requests to Pro-duce serviced April 20, 1982, with regard to this subject.
4.
O.
What " workmanship" is the subject of this contention?
A.
Design, fabrication, construction, and testing of safety related structures, systems and components.
i (Footnote continued on next page.)
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itself from this perilous position, Palmetto has now, as noted, served discovery upon Applicants.
However, Palmetto's dis-covery request regarding Palmetto contentions 6, 7, 18, 40 and 43 consists'in great measure of the vague, non-specific
" fishing-expedition" type interrogatories of the sort pro-4 scribed by 10 CFR Part 2, Appendix A, Section IV(a).
- Indeed, it is clear from a reading of this discovery that Palmetto is seeking to have Applicants provide the requisite specificity (Footnote continued from previous page.)
5.
Q.
Please specify the activities and areas of plant construction for which you contend the workmanship is substandard?
A.
Intervenor at present lacks sufficient knowledge to answer and is awaiting res-ponses to its Interrogatories and Requests to Produce served April 20, 1982, with regard to this subject.
1 With regard to its diesel generator contention (Palmetto Contention 18) Palmetto stated in the January prehearing l
conference that it could provide greater specificity.
l See Tr. 176-177.
However, when Applicants asked specific l
questions as to the meaning _af,and basis for,, quoted portions of the contention itself, Palmetto provided no useful information, Rather, in twenty-six instances it stated:
Intervenor at present lacks sufficient know-ledge to answer and is awaiting responses to its Interrogatories and Requests to Produce served April 20, 1982, with regard to this subject.
When asked the meaning of terms central to its contentions, such as adequate design, operation and sufficiently high reliability, Palmetto replied " common meaning."
1
- 11 _
for its contentions. 12/
Such a course is clearly an impro-per shifting of the obligation imposed upon Palmetto by 10 CFR 52.714.
12/
Examples of Palmetto's non-specific fishing-expedition interrogatories are set forth below:
Palmetto Contentions 4 and 40 3.
Does the Duke Power Company Quality Assurance program compli with each of the criteria of Appendix B to 10 CFR Part 50?
8.
Does workmanship in the actual design, fabri-cation, construction and testing of safety-related structures, systems, and components meet or exceed all applicable standards?
9.
Identify and describe in detail all standards applicable to the actual design, fabrication, con-struction and testing of safety-related structures, systems, and components.
- 13. For each activity under license by NRC or AEC conducted by Duke Power Company or its contractors and subcontractors involving any nuclear facility or operation, including but not limited to Catawba, identify each deficiency, as defined in 10 CFR Section 50.55(e), which represents a significant breakdown in any portion of the Quality Assurance program con-ducted in accordance with the requirements of Appendix B to 10 CFR Part 50;....
Palmetto Contention 7 3.
Do ynu agree that Duke Power Company has con-sistently failed to adhere to required NRC opera-ting and administrative procedures provided for in Commission rules and regulations, and that, there-fore, no reasonable assurance can be had that the facility can be operated without endangering the public health and safety?
(Footnote continued on next page.)
- - (Footnote continued from previous page.)
4.
If your response to No. 3 is negative, explain in detail the respects in which you do not agree.
- 11. Describe in detail each instance of Duke Power Company noncompliance with NRC operatinc and admin-istrative procedures provided for in Commission rules and regulations.
Palmetto Contention.18 7.
What has been the testinc and operating experi-ence of the emergency diesel generators, the compon-i ents and related components identified in No. 6 and the use of such for safe shutdown and reactor control in the event of loss of off-site power in testing and actual use at operating nuclear power plants, plants under construction, and other installations?
Identify each other nuclear facility, or other in-1 stallation under constructic1 or in operation, at which components of the same, or substantially similar design are employed and describe in detail the testing and operating experience at such install-ation including each License.e Event Report or other l
record reflecting such experience.
- 19. For each of the types of on-site electrical l
system malfunctions listed below what features of this facility's design, fabrication, construction l
and proposed operation, if any, provide assurance that such malfunction will not occur or impugn the health and safety of the public?
l Offsite Circuits and Startup Transformers...
A.
II.
Switchyard Breakers and Autotransfer Locic...
l III.
Load Shedding Systems...
I IV.
Engineered Safety Features Loss of Normal Power Protective Logic...
V.
Diesel Generator Air Starting Systems...
i VI.
Diesel Generators...
VII.
Diesel Generator Load Sequencers...
VIII.
Battery Charcer Systems...
IX.
Station Batteries...
X.
Inverters and DC/AC Motor Generator Sets...
XI.
Fusinc and Protective Relating....
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.. To respond to such broad-sweeping discovery requests would require an extensive commitment of Applicants' resources.
Indeed, to require Applicants to respond to such limitless discovery would in essence result in permitting Palmetto essentially unrestricted access to all Applicants' files that relate in any degree whatsoever to the general topics of quality assurance, operations, diesel generators and corbicula.
Such an expansive inquiry is contrary to the nature of dis-covery, whose purpose it is to refine and narrow the issues, not expand upon them. See Susquehanna, supra, 12 NRC at 322 quoting Pacific Gas & Electric Company (Stanislaus Project),
LBP-78-20, 7 NRC 1038,.1040 (1978).
In view of the pending Motions regarding this issue "which may obviate such interro-gatories altogether," Applicants maintain that to respond at this time would constitute an unusual burden.
This is parti-cularly the case when subsequent Licensing or Appeal Board or Commission review may, as Applicants suggest, dismiss the subject contentions, thereby obviating any discovery what-soever with respect to such contentions.
III.
CONCLUSIONS For the foregoing, Applicants maintain that they should not be required to respond to Palmetto's First Set of
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Interrogatories and Requests to Produce, pending final resolu-tion of outstanding Motions.
Respectfully submitted,
?
1 /,
!41 gJ. Michael McGagry, IIf/
DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 (202) 857-9833 William L.
Porter Albert V.
Carr, Jr.
Ellen T.
Ruff DUKE POWER COMPANY P.O. Box 33189 Charlotte, North Carolina 28242 Attorneys for Duke Power Company, et al.
May 10, 1982
I l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
DUKE POWER COMPANY, et al.
)
Docket Nos. 50-413
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50-414 (Catawba Nuclear Station,
)
Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants ' objections to Palmetto Alliance First Set of Interrogatories and Requests to Produce"; " Applicants ' Motion for Protective Order"; and Let-ter to Board in the above captioned matter, have been served upon the following by deposit in the United States mail this 10th day of May, 1982.
James L.
Kelley, Chairman George E.
Johnson, Esq.
Atomic Safety and Licensing Office of the Executive Legal Board Panel Director U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr.
A.
Dixon Callihan William L.
Porter, Esq.
Union Carbide Corporation Albert V.
Carr, Jr., Esq.
P.
O.
Box Y Ellen T.
Ruff, Esq.
Oak Ridge, Tennessee 37830 Duke Power Company P.
O.
Box 33189 Dr. Richard F.
Foster Charlotte, North Carolina 28242 P.
O.
Box 4263 Sunriver, Oregon 97701 Richard P. Wilson, Esq.
Assistant Attorney General Chairman State of South Carolina Atomic Safety and Licensing P.
O. Box 11549 Board Panel Columbia, South Carolina 29211 U.S.
Nuclear Regulatory Commission Robert Guild, Esq.
Washington, D.C.
20555 Attorney-at-Law 314 Pall Mall Chairman Columbia, South Carolina 29201 Atomic Safety and Licensing Appeal Board Palmetto Alliance U.S.
Nuclear Regulatory 2135 1/2 Devine Street Commission Columbia, South Carolina 29205 Washington, D.C.
20555
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' Jesse *.. Riley Scott Stucky 854 l'enley Place Docketing and Service Station Charlotte, North Carolina 28207 U.S.
Nuclear Regulatory Commission llenry A.
Presler Washington, D.C.
20555 Charlotte-Mecklenburg Environmental Coalition 943 Henley Place Charlotte, North Carolina 28207 r
[J. Michael McGapfy, iip l
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