ML20055J100
| ML20055J100 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 07/20/1990 |
| From: | Lazo R Atomic Safety and Licensing Board Panel |
| To: | VERMONT, STATE OF |
| References | |
| CON-#390-10656 89-595-03-OLA, 89-595-3-OLA, OLA-4, NUDOCS 9008010068 | |
| Download: ML20055J100 (36) | |
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-l[O[dh I:DCKLICO U5HRc UNITED STATES.0F AMERICA NUCLEAR REGULATORY COMMISSION di 20. P3 :05.
ATOMIC SAFETY AND LICENSING BOARD OrrlCE 0: SECi:E TAnv 00CKl Ting A S!PVICI~
Before Administrative Judges:
UNANCH 3
Robert M. Lazo, Chairman Jerry R. Klin*
' h R 231990' Frederick'J. Shon t
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In the Matter of Docket No. 50-271-OLA-4 L
VERMONT. YANKEE NUCLEAR ASLBP No. 89-595-03-OLA POWER CORPORATION-(Construction Period Recapture) t (Vermont Yankee Nuclear
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Power Station)~
July 20, 1990 MEMORANDUM AND ORDER I
(Motion To comoel Answers to Interroaatories. Set No. 2)
We have before us a motion dated May 7, 1990, filed by Vermont Yankee Nuclear ~ Power Corp. (Licensee) against the State of Vermont (State or SOV), an intervenor in this
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license-amendment proceeding, titled Motion To Compel Answers to Interrogatories, VYNPC Set No.
2.
The State filed its response on May 22, 1990.
In that response, the l
. State opposed the Licensee's motic in its entirety, seeking a protective order for all of the 2nterrogatories.
For reasons set forth below,'we are requiring clarification in minor respects of responses to several interrogatories but, in other respects, denying the Licensee's motion and granting the protective order sought by the State, subject, 9008010068 900720 PDR ADOCK 05000271i
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--2 of course, to the duty to supplement responses to the-extent j
set forth in 10 C.F.R.
S 2.740(e) (as interpreted by us'on pp. 3-4 of this order).
A.
Backaround. -This-is the second of the' Licensee's
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motions to compel further answers to interrogatories.
We I
dealt with the first in our Memorandum and. order (Motion To l
Compel Answers To Interrogatories, Set No. 1), dated May 24, 1990 (unpublished) (hereinafter,-Memo I).
There, we determined that the State should supplement or clarify.its responses in a few respects, most of which it already had voluntarily committed itself to do, but for the most part'we denied the Licensee's motion.
In ruling on the instant motion, we are assuming that the State has supplemented, or will supplement, its earlier responses as it committed to do (or as we. directed).
As the State here points out, both of the Licensee'-s sets of interrogatories presented extensive burdens for the L
L State to respond.
The first set included 18 interrogatories, most of which had numerous parts and-i l
subparts, Leeking answers which we portrayed (at least~in one instance) as seeking an " excruciating--and, in some circumstances, unwarranted--level of detail" (Memo I, at 7).
.The instant set includes 156 interrogatories, many of which also include parts or subparts.
As in the case of the first l-y set, the State provided answers to all of the questions
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posed to it..
of the.156 answers to. interrogatories, the Licensee is seeking-further answers to 105 of them.1 B.. General Princieles.. We earlier outlined the i
general principles applicable to motions such as that before us.
See Memo I, at 3-5.
Here, we emphasize first several
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of the general purposes of the discovery process--ligt, "to help litigants learn the nature of an adversary's case in advance of trial" and "to eliminate, insofar as possible, i
the element of surprise [.)" Pennsylvania Power and Licht Co.
(Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613,-12 1mc 317, 321-22 (1980).
We reiterate that responses to discovery may entail considerable effort but add that, at some point, discovery may entail undue burden or expense l
sufficient to warrant the imposition of a protective order.
10 C.F.R. S 2.740(c).
In addition, we repeat our holdings to the effect that-a truthful lack of knowledge or lack of complete knowledge l
is always an adequate answer, subject to supplementation requirements to the extent spelled out in 10 C.F.R.
S 2.740(e).
Under that provision, where responses to discovery are complete, there is a duty to supplement cnly i
IOn April 26, 1990, the Licensee filed a third set of interrogatories, consisting of 23 questions (many with parts and subparts).
The response of the State to these interrogatories, dated May 17, 1990, engendered a third Motion to. Compel,~ dated June 1, 1990, covering responses to five of the interrogatories.
Except with respect to the continuing burden being imposed on the State, we express no opinion with respect to any of these filings.
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in specified circumstances, one of these is where a-party-knowd I that a response that was' correct when made is no longer true and the circumstances are such that a failure to amend tho' response is in substance a knowing concealment.
.i 10 C.F.R. $ 2.740(e) (2) (ii).
In that connection, where the State has truthfully answered an interrogatory-to the extent it is able to do so R
at a given stage of its case preparation, and where it acknowledges that its answer reflects the incomplete' status of case preparation on the point in question, additional information acquired by it'during later stages of its case preparation will be considered by us to be a response falling within the category of responses described in 10 C.F.R. 5 2.740(e) (2) (ii)- and subject to supplementation on that basis.
Alternatively, we also consider such a response to be incomplete and in any event subject to supplementation l-on that basis as well.
u Before turning to specific interrogatories, there are two general matters raised both by the Licensee'and by the State which we will address.
First, the Licensee has objected to the State's." legal opinion" responses, to the effect that interrogatories are objectionable if they call for a legal opinion.
Where interrogatories seek the details of a party's claim, they must be answered, as advocated by the Licensee.
However, the State explains that it interposed the legal-opinion objection only to indicate that
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pnrase or term and that, in each case, it also provided a substantive response to'the. questions asked.
That being so, we need not and do not resolve the question of the extent to which an interrorfatory may seek a legal opinion.-
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Second, the State takes strong exception to the remedies sought by the Licensee.
In Memo I, we declined to rule-on similar objections inasmuch as we were not imposing L
any of the remedies'to which the State objected.
For the same reason, we decline to address the objections here.
C.
Soecific Interrocatories.
We turn now to the specific interrogatories (or groups of interrogatories) for which further responses are requested.
'1.
Interroaatories 46. 77. 81. 83. 84. 85. 86, 88, i
89, 91. 94, 95 and 97.
These interrogatories asked, in substance, what the State meant when it used certain terms or phrases in a subsection (gig) of its-Contention VII L
(reference should probably have been to particular bases, L
since Contention VII has no subsections). 'SOV in each case responded by setting forth the derivation of the particular term, that it did not know what the author meant by the term, and that its meaning in quoting the term or phrase is that it is an apparent weakness in the Licensee's u
maintenance program, identified by a particular source which on its face is a credible and respected expert opinion.
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The Licensee deems that answcr to b) inadequate in not'
. revealing the applicable standard against which the maintenance ~ program-is to be measured.and not revealing the specific deficiencies that SOV contends warrant rejection of' the pending application.
The State responds that the interrogatories by their terms did not seek this information and that SOV's responses are true, accurate and-complete in each case.
Tha*: being so, no further response is required.
(With respect to Interrogatory 86, the State nlso referenced-its responses to. Interrogatories 8, 9,
and 10 of. Set 1; the Licensee offers no objection to that aspect of the State's response, which we deem' adequate on that ground as well.)
2.
Interroaatories 87. 90. 93, 96, and 99 1:n these interrogatories, the Licensee asked the State to describe enhancements to " program formality" that SOV contends are l:
required to obviate the reactor's vulnerability to various potential operational problems.
The State responded that, to-the extent it is being asked to demonstrate reasonable assurance that the maintenance program would protect public
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health and safety, that responsibility falls on the I
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Licensee.
The State also advanced its legal-opinion objection (see discussion above) and additionally stated that it was unable to answer the questions without access to and review of the Licen.iee's maintenance documents.
The Licensee in its Motion to compel asserts that SOV is merely being asked for its position on its own 1
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The State. responds to the effect that the 1
-Licensee has not contested the State's1 position that the-requested-demonstration is one that'must be made by the
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Licensee.
-1 We agree with most of the arguments advanced by the State. 'However, to the extent that the' State has or may t
formulate positions on corrective actions for_the particular shortcomings identified by it, those positions would become
- 1 subject to the supplementation requirements set forth in 10
(
C.F.R. S 2.740(e) (as interpreted on pp. 3-4 of this Order).
i 3.
Interrocatories 107. 109, 111, 113, 115, 117. 119, 124, 126, 128, 145, 148.
The responses to all these interrogatories included the phrase "at this time."
The-Licensee thus regards the responses as incomplete.
The i
State erplains, however, that'its responses were complete and truthful when filed, and that "at this time" in each.
instance referred to the extent of the State's case development and discovery.
Again, subject to the duty.to supplement set forth in 10 C.F.R. S 2.740(e) (as interpreted by us on pp. 3-4 of this order), these answers are adequate.
4.
Interrocatories 54, 92, 98, 114, 122.
The Licensee portrays the State-as admitting or conceding that responses 1
to.these interrogatories were incomplete.
The State again describes its responses as reflecting the extent of its case preparation at the time, adding that the responses were 1.
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fullyLeomplete and truthful when made.
Subject to the duty to supplement, these answers are adequate.
5.
Interroaatories 110. 112. 116, 118. 120. 125. 127.
129. 131.'133, 135. 137.
These interrogatories sought a Y
description'of changes to the maintenance or surveillance programs that the State contends, had the change'been implemented earlier, would have precluded the occurrence of' specified matters referenced in various LERs.
The State responded that it had not evaluated the LERs for this purpose.
In its Motion to Compel, the Licensee claimed that SOV
'i was raising an issue and blandly refusing to-state its position.
The State responded that it had reviewed various LERs and identified those revealing maintenance-related problems, that it listed those in the bases for its contention, and that, because of delay in case development, it had not further evaluated the LERs.
The State adds that its responses were complete, accurate and truthful when.
made, and it offers to supplement in accordance with 10
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C.F.R. S 2.740(e) if it should elect to review any of the LERs further.
.In our view, the State's responses are
. adequate, subject to future supplementation.
6.
Interrocatories 1.
3.
The interrogatories asked for definitions of what SOV contends is included within the scope of certain terms appearing in Contention VII.
The State provided definitions of matters "ir' Jded" within the
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e terms.
The Licensee regards the answers as incomplete and now seeks "the set of things that are within the scope of-the term [s)."-
Although the State appears to have answered these interrogatories,: its answers are unclear as to whether it
-l has defined "everything," or only particular matters, that it believes to be included within the terms.
It should clarify its responses in this respect.
Beyond that, however,.its references to definitions provided by others-(to which the Licensee takes issue) are not objectionable--
1A22, the State is perfectly free to adopt those. definitions for itself, as it appears to have done.
7.
Interrocatorv 5 This interrogatory sought requirements applicable to maintenance programs.
Vermont named certain requirements but stated that it was not aware of each and every requirement.
This response is adequate but subject to supplementation in accordance with 10 C.F.R.
S 2.740(e).
8.
Interrocatorv 6.
This interrogatory asked the State to list and describe certain matters "in as much I
detail as 13 available to SOV" (emphasis supplied).
The State indicates that it did so; no more is required.
(Because of the present-tense wording of the interrogatory, supplementation will not be required.)
9.
Interrocatorv 7.
This interrogatory asked the State to define the " failure mechanisms" within the scope of
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a phrase used in contention VII..The-State referenced-its-answer to Interrogatory 1 of Set 1, and hided it was' unaware of all applicable and operable failure mechanisms and that it had provided'as complete a list as possible at that time.-
The Licensee recites that'.the response to Interrogatory 1, Set 1 was inadequate; and that the time reference in c' he.
answer at least' requires supplementation.
The State asserts that it provided a complete response and that the. time reference reflects the extent of its case preparation.
In Memo I, at 6-7, we required the State to supplement, in certain respects, its response to Interrogatory 1, Set 1.
Subject to that supplementation, the State's. answer-to this l
interrogatory in satisfactory.
This answer must also be supplemented as required by 10 C.F.R. S 2.740(e).
10.
Interroaatories 9.
10, 11. 12 These t.
interrogatories asked the State to " define the. measure" of l
L the terms "sufficiently effective" and "sufficiently t
comprehensive" (as used in the State's contention) and.to L
provide the bases for each such definition.
The State provided definitions of " effective"'and " comprehensive" and referred to certain facts as relating to aspects of the maintenance program which were not sufficiently effective or E
comprehensive.
However, it provided no bases for its definitions, stating only that the ultimate basis for each 1
would be the decision of the Board.
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.The Licensee regards these answers.as non-responsive.
8 The State argues that defining " sufficient" in terms of what is " insufficient" is entirely acceptable.
The-State adds.
that it provided as complete and full a-definition of the I
terms as it had when the response was made, and reiterated that the Licensee bears the burden of presenting an acceptable program.
We~believe that the State must clarify.these answers to indicate whether the facts it sets forth are the "only" bases it has for believing that the maintenance program will not be sufficiently effective or comprehensive.
If so, we will deem the_ responses to Interrogatories 10 and 12 to provide those facts as the requested " bases."
(If not, SOV L
should provide any additional facts or bases on which it is relying.)
Given such clarification, the responses are adequate.
However, the State will then become bound to assert only the listed facts as its bases for ineffectiveness or incompleteness.
(We, of course, may take i
additional facts into account, but the State may not 3
complain if we fail to do so.)
All of these responses are of course subject to supplementation in accordance with 10 1
C.F.R. S 2.740(e); to the extent additional bases or facts are provided through appropriate supplementation, the State may also rely on those bases or facts.
11.
Interroaatories 14. 16.
These interrogatories asked the State to identify requirements with which SOV
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1 i contends that tne maintenance and surveillance programs, lrespectively, are not in compliance, and reasons why SOV so L
cor2 ends. -The State identified-one legal requirement for.
each and several factual bases for the asserted non-compliances'.
The Licensee asks for a ruling either that Sov is i
limited.to the one legal requirement or, alternatively, that-SOV identify other legal requirements.
The State asserts 1
that there is no11egal basis for such a ruling, that it is in-the process'of further developing its case, and that if it should uncover evidence that the Licensee is not in compliance with other requirements, there is no basis for denying the State the opportunity to rely on such requirements.
Legally, the Licensee is correct in observing that the State should be limited to those legal requirements it identifies.
The very purpose of the discovery process--to reveal information relevant to a party's case and to prevent surprise at trial--mandates this conclusion.
As long as the I
State has identified all requirements on which it is currently relying, however, its answers are adequate.
If it-
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should uncover any other legal requirements on which it may choose to rely, however, it must (as a condition for relying on such additional requirements) advise the Licenaee of such requirements, through supplementation of its responses pursuant to 10 C.F.R.
S 2.740(e).
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-0 12..-Interroaatory 17 This interrogatory asked what the State meant by a' given. phrase in its contention. : The-i State set forth what it meant.
The Licensee regarded the answer as, at best,. incomplete, observing that if the meaning were as stated'by-sov, the contention would have to be modified.
The State responds by observing that it provided a complete and accurate description'of what.was-meant.and,.further, that it was describing what in fact was meant by the contention.
Since the State appears to have i -.
answered the interrogatory that was asked, no further response need be.provided.
13.
Interrocatories 19. 19, 20.
These interrogatories seek a description-of the _tems, events or circumstances that would constitute " closure showing improvement," and ask whether closure by the NRC would be adequate and, if~not, why not.
The State emphasized that, once a weakness had been identified, it expected closure not only by NRC but also by itself.
The Licensee claims that the p
. interrogatories asked what needed to be done to solve each it weakness, but we agree with the State that this would constitute a new and reformulated interrogatory.
Given the State's prior responses to what it meant by its contention, these responses are adequate.
In addition, to the Licensee's argument that Interrogatory 19 called for a yes or no answer, the State responds that the response was clearly "no" and should have been comprehended as such but
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to the initial response.
In-any' event, no further response-
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14.
Interroaatory 23.
This interrogatory asked how
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SOV contends that post maintenance testing must be q
f incorporated into the maintenance procedures.
The State indicates why the testing should be incorporated and gives an example how this should be done.
The Licensee complains that'the State failed to answer the "how question but, as n
the State points out, the Licensee ignored the "how" part'of L
the answer provided.
That answer was adequate. (Whether or not the Licensee agrees with the substance of an answer is not properly before us at this time; the Licensee's Motion to Compel in many instances, including this'one, appears to seek a ruling on the substantive adecuacy of a response, a h
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' ruling.which would be inappropriate at this time.)
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Interroaatory 24.
The State responded to this interrogatory by claiming that it lacked certain information needed to answer it.
The State has reiterated the truthfulness of this answer.
The Licensee seeks more detail on the ground that the State's case preparation should have l
L proceeded further.
However, there is no requirement for it to have done so.
Subject to appropriate supplementation required by 10 C.F.R.
S 2.740(e), the State's answer is i
adequate.
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- 16.
Interroaatories 29, 30 These interrogatories.
1 asked whether non-incorporation of "PRA concept" renders the maintenance program or operation of the reactor "in any respect" not in compliance with a regulatory' requirement L
and, if so, in what' respects.
In response, the State listed-i l-facts relating to a' reasonable-assurance finding, two of w'hich relate to non-incorporation of PRA concepts.
The I
State added that incorporation of PRA concepts-would~ assist in making the reasonable assurance finding.
The Licensee seeks a yes or no answer to Interrogatory
- 29 and further substance to Interrogatory 30.
The State claims that Interrogatory 29 cannot be fairly answered so narrowly, since it is not possible to state with precision whether failure to implement a particular measure will defeat the reasonable assurance requirement, and accordingly:
's that Interrogatory 30 cannot be answered any more precisely.
l With those explanations, the State's answers are adequate.
17.
Interroaatorv 31 This interrogatory asked what l,
significance, if any, the State placed on the commission's failure to impose a PRA requirement by regulation in its answers to the foregoing two interrogatories.
The State said that the commission's decision not to promulgate a regulation is not a matter of substance in the proceeding, and it also offered a legal-opinion objection to the interrogatory.
Although the Licensee deems the response to be patently frivolous, we read it as asserting that the l
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State.gave no consideration to what it' deems to be an irrelevant' factor.
The State adds that it is not aware that-theLCommission, in considering whether to impose:PRA
~ concepts, has even given consideration to the t)Te of I
situation presented in tnis proceeding.
That response is adequate.
18.
Interragatory 13.
This interrogatory asked SOV to define what it meant by " qualified replacement personnel."-
The State did so.
The Licensee seeks more detail but, as
.p the State' observes, those matters were not specified by the interrogatory. ; The State provided an adequate answer to the question asked.
19.
Interroaatory 37.
This interrogatory sought a description of the data, investigations and analytical or
. investigative processes upon which the conclusions reached in a paper referenced by SOV were based.- The State objected to this interrogatory but also stated that the work "was partially based" on certain identified references.
The
.o Licensee asserts that the objection should be overruled but, as the State points out, makes no comment on the references in. fact provided by tne State.
As noted, the State identified references which only partially supported the conclusions in question.
It states, 1
however, that it provided a full and complete response to the interrogatory.
It also states that the dispute with respect to-this interrogatory is made moot by Sov's answer
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Because of its use of the H
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term " partially," however, the State should' clarify that the-references it provided are the only ones known byfit to j
exist or, alternatively, should supply any' additional references of which it is aware.
20.
Interrocatorv 40 In response to Interrogatory 39, the State prov_ded a negative answer as to whether it.
-l contends that a maintenance program " based on the stability t
of maintenance staff, their skill in their professions, and their knowledge of plant system characteristics that come y
with long-term experience" will "always be-incapable" of achieving the purpose of a maintenance program.
Given such answer, Interrogatory 40 seeks the conditions under which a program.so based will achieve the purposes of such a program.
In response, the State attributes the negative answer to use of the term "always" and indicates that at some time such a program will be capable of achieving those purposes.. The State refers to conclusions of tha NRC Maintenance Team but expresses a caveat with. respect to those conclusions.
The State also refers to a prior L
response to an interrogatory, to the effect that it has not I:
had access to sufficient underlying data to draw an informed conclusion (an answer we deemed Edequate in Memo I, at 11, although subject to supplementation where warranted).
-The Licensee claims that "at some time" is no answer at all.
Although we view the State's answer as provi' ling 1
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little of a substantive response, we agree with the State that use of the term "always" injects a necessarily hypothetical element into the inquiry and renders a more definitive answer impossible.
Given the purpose of discovery to uncover. facts in the possession of the opposing
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i party, this response appears to be sufficient, although i
subject to supplementation in accordance with 10 C.F.R.
I S
2.740(e).
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.i 21.-
Interroaatories 41. 42. 43.
These interrogatories asked whether the State agrees with statements of the NRC Maintenance Team to the effect that the standard for the qualit/ of maintenance at the plant is high, that management support for maintenance is strong and effective, and that informal management oversight and feedback works well to assure safe and reliable plar;t operations, with details sought with respect either to negative or positive answers.
The State in each case incorporated by reference facts set forth in its response to Interrogatory 44 (covering specitied substantive areas) which led it to disagree with each of the conclusions.
The Licensee claims that the responses do not answer the questions.
We disagree.
We read the responses in context as providing negative answers, with details incorporated by reference.
That is adequate.
(We express i
no view, however, on the substantive sufficiency of these aspects of the contention in light of the answers provid0d.)
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22.
Interroaatorv 44.
This interrogatory asks whether SOV agrees without qualification that the Licenses has implemented a maintenance program adequate to provide
. reasonable assurance that the plant can and will be operated 1
without endangering the health and safety of the public, with details requested for both a positive and negative answer.
The State provided a negative answer, asserted the broad clain-of its Contention VII, stated that it has not been provided access to enough information to set forth all the details requested, but listed 13 facts of which it was aware at the time, their stated bases, and the name and
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qualifications of the expert it will use in this area.
The Licensee claims that the State's response " shares the deficiancy of the response to Interrogatory No.
41"--a response which we have found to be adequate.
The State appears to have answered this interrogatory fully, giving us reason to agree with the State in its Qtlastioning of the good faith of the Licensee in including responses of this sort in its Motion to compel.
The State provided an unequivocally negative answer and listed specific facts and references in support of its answer.
No more was required.2 2Indeed, as suggested by the State, we find somewhat disconcerting, if not entirely frivolous, the L'censee's attempt to belittle the reasonable assurance requirement of 10 C.F.R.
S 50.57(a) (3) through denomination as a " residual requirement."
Egg Vermont Yankee Nuclear Power Corocration (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809 (1974).
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23.
Interreanterv 45 In this interrogatory, the 4
Licensee seeks the definition of a term used by the State.
The State provided a definition.
The Licensee objects to
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the definition as "a perfect circle."
Whether or not that be so, the State defined the term as it used it, and no more is required.
24.
Interreanteries 47, 55, 61 These interrogatories ask whether Sov contends there is an applicable NRC j
requirement for, respectively, the Licensee's timing of its I
review of maintenance activities, for the nature and content of trend analysis programs, and for utilizing an RCM T
(reliability-centered maintenance) program.
The State answered that it was unaware of every NRC requirement, but specified the general public-health-and-safety requirement of 10 C.F.R. S 50.57(a) (3).
For Interrogatory 61, it listed the functions of an RCH program as fulfilling the requirement of 10 C.F.R-S 50.57(a) (3).
The Licensee claims that the State has not directly answered the first two of these interrogatories and, if S 50.57(a)(3) is the only requirement, the State should say so directly.
For the third interrogatory, the Licenste claims the response is an evasion.
The State asserts that it answered each of the interrogatories fully, referring again to.10 C.F.R. S 50.57 (a) (3).
That being so, absent supplementation under 10 C.F.R.
S 2.740(e), the named requirement is the only one which may be relied upon by the
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State. (That requirement may, however, envelope a number of subsidiary guidance policies or statements; to the extent i
relied upon by the State, they must be identified through i
supplementation pursuant to 10 C.F.R. 5 2.740(e).)
No further responses are required at this time.
25.
Interroaatorv 49 In response to a statement by the State that there is a maximum amount of time within which the Licensee must perform a review of the appropriateness and technical adequacy of completed i
t maintenance activities, this interrogatory asks what is this maximum time, with supporting reasons.
The State indicated that it could not at the time provide quantitative values, but it set forth criteria it would use for making the determination.
The Licensee deems this answer to be non-responsive or, at least, incomplete.
The State agrees that it may have gone beyond the question asked but explained that, lacking a t
quantitative value at this time, it wished to provide what relevant information it possessed.
This response is adequate but clearly, by its terms, is incomplete and subject to supplementation under 10 C.F.R. $ 2.740(e).
26.
Interroaaterv 50 This interrogatory asked SOV for instances in which, after maintenance or repair, the l
lack or untimeliness of a review of maintenance activities by the Licensee subsequently led to a failure before correction.
The State pointed to two failures and stated l
't'
' the possibility of their being caused by the untimeliness of maintenance review activities; it declined to give a more precise answer as a result of its lack of access to review records of maintenance activities.
The Licensee deems this answer to be evasive, that the true answer would be "None."
The State claims that its I
answer was truthful and that it could not give a further answer until it had completed its review of the Licensee's records.
This answer is adequate but, like others t
reflecting the progression of the State's case preparation (see, e.nm, items C.3 and C.4, supra), will be subject to supplementation in accordance with 10 C.F.R. S 2.740(e).
r 27.
Interroaatory 52 This interrogatory sought the i
State's definition of a particular term used in support of its contention, and the State provided a definition.
The Licensee now claims that the State should have given its definition in another manner but, as the State points out, that type of response was not necessarily called for by the question.
No further response is required.
28.
Interroaatorv 53.
This interrogatory asked the l
State for the types of circumstance under which it I
understands the Licensee's vendor manuals to be updated and, for each circumstance, to explain the mechanisms by which information from vendors will be critical to prevent failures of safety equipment.
The State claimed lack of access to and, accordingly, review of vendor manuals or
_ _ _ _ _ = _ _ _ _ _,. - - -
- 1 0
% updates but gives an example of a " conceivable" circumstance where the updating of vendor manuals could affect safety.
The Licensee deems this answer to be evasive. The State maintains that its answer was true and complete.
That is all that is required; lack of knowledge, where truthful (as we perceive it to be here) is always an adequate response.
29.
Interreanteries 58. 59 The first of these interrogatories asked whether SOV would acknowledge that, if the authors of a particular document used by the State as a basis for part of its contention used a particular term to refer to other than an operating license amendment, then the relevant portion of the contention is "without basit."
The
/
second interrogatory asked a follow-on question if the answer to the first were "other than an unqualified affirmative."
The State objected to Interrogatory 58 as asking a hypothetical question with no foundation of record facts.
The Licensee responds that the hypothetical is within the realm of the legitimate--but it offers only its own opinion as support for that view.
The State repeats its same objection, which we uphold.
We note that, whatever the views of the authors of the document, the contention would I
nevertheless have a basis (for reasons set forth by the State in response to Interrogatory 59).
Only the weight to be given that basis (a matter going to the merits of the contention) might be changed.
l
i c-3 The Licensee claims that the general response to Interrogatory 59 is inadequate but, given SOV's statement that the response was " complete and truthful,"
no further response is required.
The State has advised why it deems the statement in question to be pertinent to the general claim of the contention.
30.
Interroaatorv 60 This interrogatory asks what SOV understands to be the special effectiveness of RCM for
" life-extension."
The State identified what RCM can accomplish--in the Licen ve's description, the goals an6 capabilities that might be accomplished.
The Licensee views the answer as non-responsive because it offers no rear.on why RCN is the only, or best, or " uniquely able" way to accomplish those goals and accomplishments.
The State I
claims that the word "special" did not necessarily convey that meaning and that SOV answered the qcestion as asked.
i We agree.
31.
Iptorroaatorv 67.
This interrogatory asked the State to define what it meant by "weaknssa in the
{
maintenance programs," as used in its contention.
The State responded by referring to its response to Interrogatory 6, Set 1.
The Licensee asserts that this response is as inadequate as the one to which the State referred.
Because we found the response to Interrogatory 6, Set 1 to be adequate (see Memo I, at 13), we also find this response to be adequate.
i s
o i
)
i I 32.
Interroaaterv 68 This interrogatory asked SOV to state every reason why it contends that " weakness in the maintenance programs" is "of specific risk," with details i
requested for each reason.
The State referred to reasons set forth in response to Interrogatory 44.
Although the Licensee acknowledges that this answer is responsive in s
part, it faults the State for providing a-non-inclusive illustrative list.
The State asserts that the answer is possibly non-inclusive only because it had not yet completed its case preparation work.
We find this answer to be r
adequate but, given the possible incompleteness, subject to supplementation in accordance with 10 C.F.R. S 2.740(e).
33.
Interroaaterv 70 This interrogatory asked Sov to state why each and every aspect of the maintenance program t
it has previously identified is " relevant to the proposed action."
The State indicated that it had not yet completed its review but provided information available to it.
The Licensee acknowledges that the answer is responsive but incomplete and seeks a specific deadline for its completion.
The State claims that it provided all responsive information known to it and reiterated its intention to supplement pursuant to 10 C.F.R. S 2.740(e).
In our view, interpreting S 2.740(e) as we have on pp. 3-4 of this order, this response is sufficient.
34.
Interroaatorv 72 l
This interrogatory asked for l
1 reasons why SoV contends that a review in certain respects
.I
. of industry practice in maintenance planning would materially impact safety in the extended term.
The State set forth its reasons, but the Licensee deemed the answer to be evasive.
The State claims that it provided a complete answer, but it also added certain details which it claims that it previously spelled out elsewhere and did not again include to avoid verbosity.
This response is adequate.
We note that the positions of both the Licensee and the State depend on differing legal interpretations which we do not attempt to resolve at this time.
35.
Interroonterv 73 This interrogatory asked the State what it meant by "better computerization of the MR system."
The State responded by setting forth the derivation of the term and stated that it used the phrase t' refer to the computerization of a currently manual system.
The Licensee claims the answer is evasive because "better" is inherently vague.
The State asserts that "better" referred to a comparison of a manual versus a computerized system.
With that clarification, the State's answer is sufficient.
36.
Interreaatorv 75 This interrogatory asked for a definition of a term.
The Licensee claims that the response was totally non-responsive.
The State asserts that it provided a full answer but acknowledges that its response was somewhat imprecise.
It provided a restated answer,
l
.o :
i which appears to be adequate.
No further answer is required at this time.
37.
Interroaatorv 76 This interrogatory asked for reasons why the State contends that "better utilization of
(
the Assistant to the Operations Supervisor" would materially impact safety.
The State responded that a particular report "gives the impression" that-review of maintenance requests places a significant burden on the shift supervisor, for two t
independent reasons.
The Licensee claims that the answer is non-responsive because of #ts use of " impression."
The State explains that it used the word " impression" because of its lack of documents to' evaluate the particular report to which it had referred, together with its reservations over the coport itself.
Subject to supplementation in accordance with 10 C.F.R. $ 2.740(e), this response (as clarified) is adequate.
38.
Interrocatorv 79 This interrogatory asked for reasons why SOV contends that paying sufficient heed to operators' desires for hardware repair and replacement would materially impact safety.
Sov responded that not paying sufficient head to such desires of operators represents an identified weakness in the maintenance program which contributes to a lack of assurance that the maintenance program will perform as claimed.
The Licensee claims this answer is evasive, "for the same reasons as ho.
77."
We agree with the State, however, that the reasons advanced by w
..\\
. the Licensee with respect to Interrogatory 77 do not relate in any way to the response to this interrogatory.
In any event, we found the State's response to Interrogatory 77 to be adequate (see item C.1, guarA).
In the circumstances, no further response to this interrogatory is called for.
39.
Interreanterv 80 This interrogatory asked the State to describe in detail the work SOV contends needs to be done in the certification area, as set forth in its contention.
The State answered that it had not yet made such a determination but that it was in the process of developing its case on this matter.
As we have noted previously, it is entirely appropriate for the State to develop its case through the discovery process, but it must provide whatever information it has developed at the time it answers the interrogatory, subject to supplementation as required by 10 C.F.R. S 2.740(e) (Memo I,
at 5).
If SOV had not completed caso development to the point where it could identify Any certification work, then its "no determination" response was adequate.
The State should clarify its answer in this respect.
In any event, its respense is subject to supplementation, as indicated above.
40.
Interroaatorv 82 This interrogatory asks for i
reasons why the State contends that formality would materially impact safety.
The State responded that lack of formality is an identified weakness that contributes to a m
... Y
! lack of assurance that the maintenance program will perform as claimed.
The Licensee seeks a factual basis for this clain.
Because the State has identified its reasons why formality would impact safety, however, it has adequately answered the interrogatory.
The burden shifts to the Licensee to establish, if it can, that the identified weakness does not have serious safety implications.
(Again, we express no view on the merits of the State's or the i
Licensee's positions.)
41.
Interreaaterv 100 This interrogatory asked what the State meant when it used a certain phrase in its contention.
The State answered what it meant.
The Licensee regards the answer as incomplete and seeks more descriptive detail but, since the State identified what it meant and 3
thereby answered the question, no further response is required.
42.
Interroaaterv 103; This interrogatory seeks reasons, with underlying factual data, why Sov contends that the extension cannot be considered until maintenance program improvements are made and tested.
The State provided a rather generalized reason.
The Licensee asserts that the response is at best incomplete.
The State responds that the answer is clear and complete.
That being so, no further response is required.
The Licensee has raised a legal objection to what the State is here proposing, and the State counters with a legal i
..:-,~,---
e f
I i defense.
W= express no view at this time on the validity of either position, except to note that the adequacy of past performance me" logically be deemed a precursor to future performance unt.cr a proposed program and,' hance, the adequacy of the proposed program.
43.
Interroaaterv 106 This interrogatory asked whether the State contends that NRC imposes any requirements as to " reliability standards" and, if so, to provide details.
The State's answer did not affirmatively state either yes or no but described certain of the alleged requirements on reliability (citing one and describing others).
The Licensee deems the response to be evasive and non-responsive.
In response, the State clarified that its response was affirmative and added that it was not able to cite many unwritten requirements (or " voluntary i
commitments") which may exist.
SOV adds that the response is complete and truthful.
As so clarified, this response is i
adequate, although subject to supplementation to reflect continuing caso development.
44.
Interroaatory 108.
This interrogetory sought identification of changes to the maintenance or surveillance programs that, if implemented earlier, would have precluded the occurrence of matters set forth in a LER.
The State responded that it had not yet evaluated the LER.
The Licensee asserts that the answer is, at best, incomplete, for reasons which, in the State's view, bear no relevance to
4 e.
i 1 the interrogatory.
We agree that the Licenses has provided-no relevant reasons why this answer is inadequate.
The t
J State's answer is adequate, subject, of course, to supplementation should the State review the particular LER as part of its case preparation.
See item c.5, angra.
45.
Interroaatory 138 This interrogatory asked the State to' define " weakness," as used in its contention.
The State refers to its response to Interrogatory 6, Set 1.
The Licensee finds the response defective for the same reasons for which it deemed the response to Interrogatory 6, Set 1 to be defective.
Since we found the response to Interrogatory 6, Set 1-to be adequate, subject to supplementation as volunteered by the State (see Memo I, at 13), we likewise find this response to be adequate, subject i
to supplementation.
46.
Interroaatory 140 This interrogatory asked for i
reasons, and supporting details, why SOV contends that the
(.
facility will have " future inadequacies" in its maintenance i
l program.
In response, the State referenced its response to l
l Interrogatory 14, Set 2.
The Licensee complains that SOV has cited only one legal requirement and, therefore, that it should either be limited to that requirement or forced to supplement its answer.
As we held with respect to Interrogatory 14 (supra, pp. 11-12), however, the State will be limited to requirements it has identified or will identify through supplementation pursuant to 10 C.F.R. 5
~
~
]
1,
l I
2.740(e).
No further supplementation at this time is therefore required.
47.
Interreantory 147.
This interrogatory asked for
-reasons, with supporting details, that Sov contends that
" adequacy of the coating system" would differ for the extended period from its adequacy for the balance of the present license term.
The State first objected to the relevance of the interrogatory because adequacy in the present term is not an issue in the proceeding.
Given the l
broad scope of relevance when applied to discovery--itat, information " reasonably calculated to lead to the discovery of admissible evidence" (10 C.F.R. 5 2.740(b) (1))--and given the plausible connection provided by the Licensee to the means it is utilizing to respond to the contention, we agree with the Licenses that the inquiry is relevant.
The State also asserts in essence that its claim ~is that reasonable assurance has not been demonstrated that the containment coating system will meet its current it:ensing basis in the extended term.
If that is the entire substance of its claim, and if it has no supporting evidence, its response is then adequate but leaves it open to a demonstration by the Licensee of successful compliance in the current term as tending to demonstrate likely compliance in the extended term--a potential, although not the only, approach that the Licensee may elect to utilize.
The state should clarify whether it now has any such supporting data;
o..
, i in any event, its answer will be subject to supplementation in accordance with 10 C.F.R. $ 2.740(e) (to reflect its case development).
48.
Interroaatory 150 This interrogatory asked the State what it means by a certain phrase in its contention.
SOV provided citations to authority defining the terms it used.
The Licensee claims the answer is. evasive, since SOV provided no explanation.
But, as the State points out, it was not asked to explain but only to define what it meant, f
and it did so.
That being so, its response was adequate.
49.
Interroaatory 152.
This interrogatory asked for reasons and supporting details why SOV contends that ECCS pump suction must be evaluated with regard to the effects of operation and misoperation of a proposed hardened containment vent.
The State responded that it could not answer the interrogatory without the submission by the Licensee of the final design of the containment vent.
It also provided, by refershca te another interrogatory, one such reason.
The Licensee claims that SOV has not answered the interrogatory and should at least provide reasons of which i
it is currently aware, together with the expertise of persons on whom it will rely.
The State claims that the reason it supplied is the only one it currently has ascertained at this stage of its case preparation.
i l
. ~.. ~.
e i L The State should clarify whether or not it has selected an expert or experts on whom to rely for this aspect of its t
i j
contention and, if so, should identify and describe the qualifications of the expert.
Beyond that, it has adequately answered the interrogatory, subject to i
supplementation under 10 C.F.R. $ 2.740(e) to reflect the development of its case on this matter.
50.
Interroaatory 155.
This interrogatory asked, with respect to each of the foregoing interrogatories as to which i
SOV responded that it could not answer or could not answer completely without the acquisition of additional information, the additional information required, reasons why it is necessary to acquire the information, steps it is taking to acquire the information and the anticipated date when the steps will be completed, and the intentions of SOV concerning supplementation (including whether and the date on which it intends to supplement).
The State objected to this interrogatory as burdensome, as disclosing the thought processes of counsel, and as seeking the disclosure of case strategy.
Without ruling on legal privilege or the applicability vel non of the work product doctrine, we agree that this interrogatory is unduly burdensome.
The information requested is of but marginal usefulness, given what is already of record.
Thus, we have described herein each interrogatory for which supplementation may be warranted.
e,
- o...'o To this extent, an answer to this interrogatory would duplicate information already produced.
Further, we are establishing a schedule for the submission of the clarifications that we have found are warranted and in the future will establish a schedule for the submission of supplemented answers.
Moreover, if the State chooses not to.
file a supplemental response for any particular interrogatory, then the Licensee can take Sov's case as it has been revealed thus far on the subject of that i
interrogatory.
Accordingly, the State need not answer this interrogatory.
D.
Order.
For the foregoing reasons, it is, this 20th day of July, 1990 ORDERED:
1.
The State of Vermont is directed to clarify, to the extent indicated, its responses to Interrogatories 1, 3,
9-i 10, 11-12, 37, 80, 147, and 152, all of Set No.
2.
These clarified responses are to be filed within 14 days of service of this Memorandum and order, i
2.-
Various interrogatories as identified hereinabove are subject to the supplementation requirements of 10 C.F.R.
S 2.740(e), an interpreted on pp. 3-4 of thin order.
3.
In all other respects, the Licensee's Motion To Compel Answers to Interrogatories, VYNPC Set No.
2, dated l
)
oe - s o. e g' i
1 I i
May 7, 1990, is deniad, and the State's request for a
\\
protective order is aranted.
]
FOR THE ATOMIC SAFETY AND LICENSING BOARD Robert M. Lazo, Chairtrian l
ADMINISTRATIVE JUDGE.
Bethesda, Maryland i
July 20, 1990 i
t k
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---.. ~ _. _ _ -,
' - " ' ' ~ ~
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M UNITED-STATES OF AMERICA NUCLEAR RE6ULATORY COMMISSION
- < 1 In the Matter of
' VERMONT YANKEE NUCLEAR F0WER.
Docket No. (s) 50-271-OLA-a CORFORATION (Vermont' Yankee Nuclear Fower-i Station)
I t
i CERTIFICATE OF SERVICE l heremy certify that copies of the foregoing LB M&O (NOTION TO COMPEL...r have been served upon the followino persens by U.S. mail, first class, except 4
as otherwise noted and in accordance.with the requirements of 10 CFR Sec. 2.712.
i Atomic. Safety anc Licensing Appeal Administrative Judge Boero Robert'M. Laro. Chairman U.b. Nuclear beautatory Commission Atomic-Safety and Licensino Boaro
' Washington, DC 20555 U.S. Nuclear Regulatory Cornission Wasnington, DC 205t5 d
Administrative Jucce Acministrative Judge Jerry R. Kline Frederiet J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Boarc U.S. tiuclear Regulatory Commission U.S. Nuclear Regulatory Commission I
Washtngton, DC 20555 Washtnoten DC 20555 Ann P.
Hodooon R.
K.
Gao, 111 Escuire i
t Office of tne General Counsel Hopea & Gray U.S. Nuclear Reculatory Commission One international Place Washinoton, JC 20555 Boston, MA.02110
~
- Anthony 't. Rotsman, Escuire James Volz, Esquire Cohen, Milstein & Hausfeld Interim Director for Pub. Advocacy 1401 how ter r Avenue, Sui t e 600, NW vermont Department of Public Service
'la shi no t on. DC.
70005 170 State Street dontpeater. VI vteu2 l
i Dated at Rockville. Md. this 23: day of July 1990 f) f
^
. 3@NAdWh Office (; the Secretary of the Commission b
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