ML20059M559

State of VT Answer in Opposition to Vermont Yankee Nuclear Corp Fifth Motion to Compel & State of VT Application for Protective Order.* Protective Order Should Be Issued So State Need Not Suppl Responses.W/Certificate of Svc

ML20059M559
Person / Time
Site:	Vermont Yankee
Issue date:	09/27/1990
From:	Volz J VERMONT, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
CON-#490-10864 OLA-4, NUDOCS 9010050056
Download: ML20059M559 (10)

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00CKETED USNRC UNITED STATES OF AMERId NUCLEAR REGUIATORY COMMISSION '9() 0C1 -1 NI 2g before the ATOMIC SAFETY AND LICENSING BOARD q g gp r g e,J 00 Chien i?.9.4l. , ' #~

In the Matter of )

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VERMONT YANKEE NUCLEAR ) Socket No. 50-271-OIA-4 '

POWER CORPORATION ) (Operating License. l

) Extension)

(Vermont Yankee Nuclear ) l Power Station) ) j t

STATE OF VEKMONT ANSWER IN OPPOSITION TO-VERNCNT YANKEE NUCLEAR POWER CORPORATION FIFTH NOTION TO COMPEL AND STATE OF VERNONT APPLICATION FOR PROTECTIVE ORDER l

Introduction  ;

4 On September 12, 1990, the Vermont Yankee Nuclear Power Corporation (" Vermont Yanket") served by first-class mail a

" Motion to Compel Produchion of Documents (VYNPC Set No. 1)"  :

(hereinafter referred to as the " Motion to Compel") on the State of Vermont (" Vermont"). Pursuant to 10 C.F.R. $$ ,

2. 73 0 (c) and 2.740(c), Vermont files this Answer in j Opposition to Vermont Yankee's Motion to Compel'and this i

Application for Protective Order. This Answer will demonstrate that the Atomic Safety and Licensing Board a

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(" Board") should reject Vermont Yankee's Motion to Compel and grant Vermont's Application for Protective Order.

This answer iw organized in the folicwing manner:

Section I addresses the licensee's reasons for compelling

- further responses, and demonstrates they are without merit.

Section II address the licensee's arguments concerning the bases of Contention VII, and demonstrates they are equally 1

without merit. Section III addresses the burden to Vermont of complying with these discovery requests. Vermont does not, in this answer, repeat in full the interrogatories and responses which Vermont Yankee is challenging, because Vermont Yankee's Motion to Compel already sets them out in full.

I. Licensee's Reasons for Compelling Further Response Are Without Merit.

In the Motion to compel, the licensee moves to compel document requests categorized by the sub-parts of Contention VII. It claims that, lacking such, an unnecessary t :rden is imposed on the Board and itself, and the integrity of the factual record is threatened. This is so, according to the licensee, because parties would be forced on the one hand to litigate issues in which Vermont has no case and on the i other hand, parties would be forced to litigate against a concealed Vermont case. Licens'ee claims this would make 2

l Vermont free to'be admitted with one contention and litigate l L something else of its. choosing. Notion, at 3. Licensee concludes this would be " trial by ambush". Motion at 3-4

.and Note 4.

These claims do not accurately portray the posture of this proceeding. Licensee has burdened Vermont by i

propounding 262 interrogatories and document requests, many  ;

with multiple'sub-parts. The responses to these have consumed 229'pages. In these responses, licensee has parsed the sub-parts of contention VII, and Vermont's case, upwards, sidewards, downwards and backwards, often, licensee has asked for "each and every fact" related to the interrogatory and "each and every document" related to each fact. Where Vermont has not developed its case-in a [

particular area, it has stated that it understands its duty  !

9o supplement responses in accordance with 10 CFR S ,

2.740(e). Vermont has committed to provide'hy ,

' supplementation all' the facts it intends ta) use in the case. <

State of Vermont Answer in Oooosition to Vermont Yankee Nuclear Power Cornoration Fourth Motion to comoel and State <

of Vermont Aeolication for Protective Order, August 17, l 1990, at 11.

l All of this discovery the Board has tolerated with excruciating patience, tho*1gh npt without criticism. See Memorandum and Order, May 24, 1990, at 7; Memorandum and  :

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Order, July 20, 1990, at 19 and Note 2; Memorandum and

• Ordar, August 27, 1990, at 5, 6 and 7. And all of these, l i

. Vermont-has endured by providing timely responses. At this point, there can be no clain whatsoever of " trial by  !

i ambush." Further, Vermont's response to Request No. 15 is a complete response:

" Vermont states that documents which support ,

Contention VII are those acquired from .

l q Vermont Yankee through and those referenced in responses to Vermont Yankee Interrogatories, these documents will be produced for inspection and copying."

The documents that Vermont intends to use as evidence l 1

have been or will be by supplementation included in the i responses to appropriate licensee interrogatories. Thus, the remedy licensee seeks, to have an accurate understanding a

of Vermont's case and access to documents Vermont intends to I use, 1s already available and operative. Any further categorization of documents is duplicative and therefore  ;

burdensome, f

II. Licensee's Arguments concerning the Bases of a contention are Flawed and Equally Without Merit.

The licensee states, at 1, that: "[t]he literal terms of these 14 bases (to contention VII) therefore limit the 1 scope of this proceeding: nothing more may be litigated and i nothing less need be resolved.", (Footnote omitted.) In l support of this assertion, Vermont Yankee cites the 4

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i to11owing casest Vermont ' ankee Nucient Power Corporation. l (Vermont Yankee Nuclear Power Station), ALAB-876, 26 NRC ,

277, 284 (1987); carolina Power & Light company (Shenton  !

Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 545-46 [

(1986); Philadelphia Electric company (Limerick Generating ' l Station, Units 1 and 2), ALAB-845, 24 NRC 220, 242 (1986);

f and-Carolina Light & Power Company (Shearon Harris Nuclear i Power Plant), ALAB-843, 24 NRC 200, 208 (1986).

These cases simply do not support the assertion for which,they are cited. In each case, the Board reiterated the established principle that a party is bound by the literal terms of its contentions. In each case, at issue '

was the literal terms of the contention, not the literal  ;

terms of the bases.

The " literal terms" of contention VII are broadly stated:

The application should be denied because the l

. applicant has failed to demonstrate that there is reasonable assurance that operation of the plant beyond the date for which operation was originally approved will provide adequate protection to the public health and safety due to the. absence of a.  ;

sufficiently effective and comprehensive program to maintain and/or determine and replace all components found to have aged to a point where they no longer meet the safety standards applicab?.e to this plant and upon which this plant was originally granted its operating licensee.  !

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Vermont fully intends to limit the scope of its case to the .j

" literal terms" of this contention.

The licensea again, at 3, claims Vermont h:: sn 1

" obligation to organize its proof'according to the 14 i admitted bases of contention VII." Accompanying this claim are the following citationst Texas Utilities Generating ..

t Company (Comanche Peak Steam Electric Station, Units 1 and b

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2), LBP-81-22, 14 NRC 150, 154 (1981); Carolina Power &

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Light Company (3hearon Harris Nuclear Power Plant), LBP 49, 22 NRC 899, 915 (1985), aff'd, ALAB-843, 24 NRC 200 (1986); Boston Edison Company (Pilgrim Nuclear Generating j Station, Unit No. 2); LBP-76-7, 3 NRC 156 (1976); see also Long Island Lighting Company (Shoreham Nuclear Power )

Station, Unit 1), CLI-88-9, 28 NRC 567, 571 (1988).

J These cases also do not support Vermont 'lankee's claim.

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Each case deals with the dismissal of contentions which were I abcndoned by their framers. -Vermont emphasizes, it is the '

'l contention that was abandoned, not a basis. Vermont has not sbandoned Contention VII but has rigorously both pursued and responded-to relevant discovery.

The proper relationship of bases to contentions has been stated by this Board:

l The purposes of the basis requirements of 10 C.F.R. S 2.714 are (1) to assure that the 1 contention in question taises a matter appropriate for adjudication in a particular proceeding, (2) to establish a sufficient 6

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foundatiu for the contention to warrant-further'inquirylinto1the subject matter.

addressed.by the' assertion and,--(3)Jto put-the<other parties 1 sufficiently on notice

...so<that they will know at least aenerally what4 they will have to defend against or oppose'."

= Memorandum and Order, January 26, 1990, at 9-10 (notations omitted,-emphasis added).

Use of=the phrase "at least generally" makes clear that Li contentions are not limited to the " literal.tsrms" of hhe bases which originally supported them. The bases are a pleading requirement for admission or denial of contentions.

[ Duke Pm wr Company (Catawba Nuclear Station, Units 1 and 2), I 16-NRC.1937 (1982). At 'ake power makes clear, it is not a

appropriate to l'ook at the bases unless 6,here is a dispute c /er the breadth cf the contention. Once admitted, it'is

-the literal terms of the gentention which are litigated, not i 1

the " literal terms" of the bases.1 a

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1 It is recognized -that at times it may be necessary to e interpret the meaning.of a contention by resorting to its j

. bases.- Thus, in Seabrook, a contention regarding "the:  ;

accumulation'of mollusks, other aquatic organisms, and I debris" .was determined to involve blockage and _ not - O corrosion by referral . to its bases. Public Service- d

" " '; . Company of New Hampshire (Seabrook Station, Units 1 and- d 2 ) ', ALAB-89S, 28 NRC 93 (1988), 95-97. There is no j

' dispute here, however,. over- the literal ' meaning of. j '

Contention VII.

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=III., complying With These Discovery Requests is-overly _;

Burdensome.  !

It'is important that the Board understand the.truly-i burdensome nature of these discovery requests. To organize the evidence according to the fourteen-bases would be an 1

extreme b'urden to Vermont.

I Vermont is a small state with

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3 limited financial and personnel resources. It has only one ,

professional staff person with nuclear power plant expertise. Moreover, organizing and evaluating each -l document supplied by Vermont Yankee to determine which sub-

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_part it. supports would be a time consuming task which might _l.

h prove-to be useless. To do so would be a waste of 5 L'# resources. Vermont has not yet decided what--organization it p

b will use to.present its case. It is unreasonable and U p ' , .

. inappropriate to force Vermont to organize documents, all~of i

which are in the possession of Vermont; Yankee, according to L the bases, when there is no legal requirement for. Vermont to-  !

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present its case in that manner. Therenis no need for t

Vermont Yankee to know which documents support which bases, y

if Vermont, in fact, does not present its case in that manner. As stated earlier, Vermont has committed to provide i, by' supplementation all the facts it intends to use in this h- :l s Case.

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4 Conclusion-For the reasons set forth above, the Board should deny-Vermont Yankee's. Motion to Compel and should; issue a Protective Order that-provides that Vermont need not supplement any of its responses to Vermont Yankee's-first set.of; document requests.

STATE OF VERMONT By its attorney, I % d /

James Volz /

pirector-for Public pdvocacy Department of'Public Service '

120 State Street Montpelier, VT 05620 (802) 828-2811

Dated

September 27, 1990 9

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UNITED STATES OF AMERICA " hhhc NUCLEAR: REGULATORY COMMISSION

' ' before the ATOMIC SAFETY AND_ LICENSING BOARD '90 DCT -1 A11 :28-i

' )

In'the' Matter of ) P!C'F M W"-

VERMONT-YANKEE NUCLEAR Docket No. 50-2"/N POWER CORPORATION-

)

) (Operating' License k hch'

) Extension)

(Vermont-Yankee Nuclear )

Power Station) )

._ )

CERTIFICATE OF SERVICE I hereby certify that on September 27, 1990, I made service.

of " State of Vermont Answer in Opposition to Vermont Yankee 1 Nuclear Power Corporation Fifth Motion 'o Compel-and State of j

'- Vermont Application for Protective Ordeu"'and " Supplemental- l'

.No.Response to Applicant's Interrogatories by State of Vermont (Set

.3)", in accordance with rules of the Commission by mailing a copy'thereof postage prepaid to the following: 1 I

Administrative Judge- Administrative Judge Robert M. Lazo, Chairman Jerry R. Kline Atomic Safety and Licensing Board Atomic Safety and' Licensing U.S. Nuclear Regulatory Commission Board Washington, DC 20555 j U.S. Nuclear Regulatory j Commission j Washington, DC'20555 j Eugene Holler, Esq.

Administrative Judge Ann P. Hodgdon, Esq. ,

Frederick J. Shon. Patricia A. Jehle, Esq.

Atomic Safety ~and Licensing Board . Office of the General Counsel- .i U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory 1

. Washington, DC 20555 Commissaan Washington, DC 20555 R. K. Gad, III, Esq. Anthony Z. Roisman, Esq.

Ropes & Gray Cohen,-Milstein, Hausfeld &

One International Place Toll I 1

Boston,'MA 02110 Suite 600 j 5401 New. York Avenue, N.W.

~ Adjudicatory File Washington, D.C. 20005 3

j Atomic Safety and Licensing Board Panel U.S.N.R.C. -

Washington, DC 20555 ta_ m _

[ l James Volz

/

Dated: September ?7, 1990 Director for PubliciAdvocacy