ML20059M646

NRC Staff Response to Licensee Motion to Compel Production of Documents.* Supports Licensee Motion Due to State of VT Objections Not Well Founded.Notices of Appearance & Withdrawals & Certificate of Svc Encl

ML20059M646
Person / Time
Site:	Vermont Yankee
Issue date:	10/02/1990
From:	Hull J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#490-10879 89-595-03-OLA, 89-595-3-OLA, OLA-4, NUDOCS 9010050141
Download: ML20059M646 (9)

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD. g nr n c.muv ,

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VERMONT YANKEE NUCLEAR ) Docket No. 50 271-OLA-4  :

POWER CORPORATION ) l

) ASLBP No. 89 595-03 OLA (Vermont Yankee Nuclear Power ) (Construction Permit Station) ) Recapture)

NRC STAFF RESPONSE TO LICENSEE'S MOTION TO COMPEL PRODUCTION OF DOCUMEn'TS i

1. INTRODUCTION l

i On September 12, 1990, Vermont Yankee Nuclear Power Corporation (Ucensee) filed a Motion To Compel Production Of Documents. The motion relates to Ucensee's -

July 24,1990 request for production of documents in which the Licensee asked the State ,

of Vermont (SOV) to identify the documents en which SOV relled as support for each of the 14 admitted bases of Contention VII. Ucensee now argues that SOVs August 28th response to Ucensee's request for documents is inadequate and seeks to compel SOV to clearly identify its supporting documents. Absent such identification, Licensee argues that it will be hampered in its efforts to resolve by summary disposition SOV allegations having inadequate factual support; and Ucensee argues that its preparation for any subsequent evidentiary hearing will likewise be impaired.

For the reasons discussed below, the Staff supports the Ucensee's motion.

II. DISCUSSION The Staff has not involved itself in discovery disputes in this proceeding where it was not a direct party to that dispute. However, the nature of SOVs August 28th 9010050141 ,01002 ~

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2-response is such that the Staff is concerned about the integrity of the Commission's adjudicatory process. See, Long hland Lighting Co., (Shoreham Nucle .- Powir Station, Unit 1), CU 89 2,29 NRC 211,231 (1989). The document identification Ucensee seeks is, on its face, directly related to discovering what facts exist that support the various allegations that make up the bases SOV relies on to support its Contention VII. Rather than making an effort to identify and/or produce the documents Ucensee requested, SOV has refused to meet its discovery obligations by complaining of the burdensome nature of document requests 114 and by stating that Ucensee is trying to dictate SOV's case preparation. SOV does not even bother to explain how or why its case preparation would be improperly affected by revealing Contention VII's documentary support. The specific nature of requests 114 reflects the framework SOV chose when it drafted the bases upon which Contention VII rests.1 SOV's September 27th opposition to Ucensee's motion to compel fails to provide any support or rationale for the argument that SOV's case preparation would be improperly affected by producing the requested documents. SOV's reliance on its " broadly stated" Contention VII (SOV Opposition, p. 5) ignores one of the major purposes of discovery: to narrow and sharpen the issues in controversy.

SOV's emphasis on th e general notice requirement (SOV Opposition, p. 7) cited by this Board at p.10 of its January 26,1990 Order, is equally misplaced. This Board was then deciding whether to admit contentions, and was not addressing discovery issues.

8 The repetition of its objection to document requests 114 suggests that SOV has crafted a convenient argument, the details of which are still unknown. However, its objection to document request 15 is inconsistent with its objections to requests 114.

Instead of being too specific, SOV complains that request 15 is "without specificity". SOV Response to Request For Production of Documents, p. 4.

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Indeed, this Board went on to state at p.11 of its Order that 'The question of the contention's substance is for later resolution . . ." and that summary disposition would be a proper way to address the contention's substance. SOV offers no valid arguments to [

justify denying Licensee the discovery needed to pursue summary disposition. f i

In several previous licensing proceedings, intervenors have chosen not to reveal. j evidence underlying their contentions, thereby failing to meet their discovery obligations -

l In responding to such failures, licensing boards, appeal boa:ds and the Commission itself have uniformly held that discovery obligations must be met. In Shorcham, supra, 29 NRC at 231, government intervenors were dismissed from a licensing proceeding for, inter alla, i failing to produce documents during discovery. In Pennsyh>ania Power and Light Co., [

(Susquehanna Steam Electric Station, Units 1 and 2), ALAB 613,12 NRC 317 (1980),

intervenor's objection to 150 interrogatories, with numerous subparts, as burdensome was ,

rejected. The Appeal Board emphasized the right of parties to discover all-relevant matters not privileged which tend to support allegations in pleadings. Id.,12 NRC at 330 32. The Appeal Board stated 'The Rules of Practice expressly sanction discovery  ;

into the claims of an opposing party and specifically allow questions concerning such ,

s things as 'the existence, description, nature, custody, condition, and location of any books, 8

SOV maintains at 4 7 of its Opposition that it may litigate matters not set forth in the basis of its contention. This is not so. The purpose of contentions is to put parties on notice of the specific matters to be litigated.10 C.F.R. I 2.714(b)(2); Texar Utilities Electric Co. (Comanche Peak Electric Station, Unit 1), ALAB-868, 25 NRC 912, ,

930 (1987); Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB 216, 8 AEC 13, 20 21, modified on other grounds, CLI 74-32, 8 AEC 217 1974). Absent a basis a contention would not have the specificity needed for admission and parties would not know the issues to litigate. it is only matters stated in the contention as elucidated in the bases of the contention which are subject to litigation. '

See Public Senice Co. of New Hampshire, (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93,97 (1988).

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documents, or other tangible things and the identity and location of persons having i i

knowledge of any discoverable matter' " (citing 10 C.F.R. I 2.740(b)(1)). Id., at 333 34.  !

The Appeal Board further stated *Obviously, interrogatories designed to discover what (if any) evidence underlies an intervenor's own contentions are not out of order". Id., at 340.

Similarly, in Public Service Co. of New Hamp. shire, (Seabrook Station, Units 1 and 2),

LBP 83 20A,17 NRC 586, 589 (1983), it was emphasized that the discovery of the I documentary basis of a contention is proper. In KerrJfcGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-86-4, 23 NRC 75, 81 (1986), the duty of a party to respond to discovery to allow an opponent to understand the basir of contentions and prepare for hearing was emphasized. In Nonhern States Power Co., (Tyrone Energy Park,  ;

Unit 1), LBP 77 37,5 NRC 1298,1300-01 (1977), it was noted that it may be impossible '

for an applicant to meet its burden of proof absent intervenor responses to document  ;

requests inquiring as to contention bases. 5 Finally, SOV's statement in its response to Licensee's Document Request 15 that

" documents which support Contention VII are those acquired from Vermont Yankee through discovery and those referenced in responses to Vermont Yankee Interrogatories",

is so vague as to not meet SOV's discovery obligations under this Commission's Rules of Practice. A reference to specific documents on which SOV intends to rely at the hearing, rather than a reference to literally thousands of documents acquired from Licensee, is needed to make this response meaningful. See Commonwealth Edison Co., (Byron Nuclear Power Station, Units 1 and 2), ALAB-678,15 NRC 1400,1421, n.39 (1982).

5-In sum, SOV's objections to the requested discovery are not well founded and present a challenge to the efficacy of the Commission's hearing processes. Ucensee's Motion To Compel Production of Documents should therefore be granted.

CONCLUSION ,

For the reasons stated above, the Staff supports Ucensee's Motion To Compel Production Of Documents. ,

Respectfully submitted, ,

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3 / / tl/ i ohn T. Hull '

Counsel for NRC Staff Dated at Rockville, Maryland this 2nd day of October,1990

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, UNITED STATES OF AMERICA  ;

NUCLEAR REGULATORY COMMISSION  :

'90 Og -3 NO 54  :

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD np;EofsiCRIWy bucm UH3' 'D V' 1 In the Matter of ) *'# '

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' VERMONT YANKEE NUCLEAR ) Docket No. 50-271 OLA-4  :

POWER CORPORATION )  !

) ASLBP No. 89 595 03-OLA  !

(Vermont Yankee Nuclear Power ) (Construction Permit l Station) ) Recapture) i NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above captioned matter. In accordance with i 2.713(b),10 C.F.R., Part 2, the following information is provided: '

Name: John T. Hull Address: U.S. Nuclear Regulatory Commission i Office of the General Counsel

• Washington, D.C. 20555 Telephone Number: 301-492 1573 Admissions: Court of Appeals of Maryland

-i Name of Party: NRC Staff '

Respectfully submitted, J

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'n T. Hull unsel for NRC Staff .

I Dated at Rockville, Maryland this 2nd day of October,1990 I

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., usNRC 90 001 -3 A10:54 UNITED STATES OF AMERICA t ri!cr or 5tcRL1ARY NUCLEAR REGULATORY COMMISSION Boc6i m G ^ '.!'tVICI ER e BEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of )

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VERMONT YANKEE NUCLEAR ) Docket No. 50 271 OLA-4 POWER CORPORATION )

) ASLBP No. 89 595 03 OLA (Vermont Yankee Nuclear Power ) (Construction Permit Station) ) Recapture)

NOTICE OF WITHDRAWAL Notice is hereby given that effective October 2,1990, I will withdraw my appearance in the above captioned proceeding. All mail and service lists should be amended to delete my name after that date, c6ka rL CA Patricia Jehle Counsel for NRC Staff Dated at Rockville, Maryland this 2nd day of October,1990 ~

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'90 DCT -3 A10 34 UNITED STATES OF AMERICA . i NUCLEAR REGULATORY COMMISSION Y,cocr nr sita ocni%a 1/4y 3 snvia eht.m.4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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VERMONT YANKEE NUCLEAR ) Docket No. 50 271 OLA 4 '[

POWER CORPORATION ) .

) ASLBP No. 89 595-03-OLA (Vermont Yankee Nuclear Power ) (Construction Permit  ;

Station) ) Recapture)  ;

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NOTICE OF WITHDRAWAL .,

Notice is hereby given that effective October 2,1990, I will withdraw my appearance in the above captioned proceeding. All mail and service lists should be amended to delete my name after that date.

Euge$ Holler Counsel for NRC Staff i I

I Dated at Rockville, Maryland this 2nd day of October,1990 9

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, UNITED STATES OF AMERICA UNC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARDEE 3 SEcia ItJY In the Matter of ) gnc%$5f NCM

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VERMONT YANKEE NUCLEAR ) Docket No. 50-271 OLA-4 POWER CORPORATION )

) ASLBP No. 89 595 03-OLA (Vermont Yankee Nuclear Power ) (Construction Permit Station) ) Recapture)

CERT 1FICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO LICENSEE'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS", " NOTICE OF APPEARANCE OF JOliN T. IlULL", " NOTICE OF WITliDRAWAL OF PATRICIA JEliLE", AND

• NOTICE OF WITIiDRAWAL OF EUGENE liOLLER" in the above-captioned -

proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 2nd day of October,1990:

Robert M.12zo, Chairman Jerry R. Kline Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Beard Panel Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Frederick J. Shon James Volz, Esq.

Administrative Judge Vermont Department of Public Atomic Safety and Licensing Board Service Panel 120 State Street U.S. Nuclear Regulatoty Commission Montpelier, VT 05602 Washington, D.C. 20555 Atomic Safety and Licensing Board R.K. Gad, III, Esq.

Panel (1)* Ropes and Gray U.S. Nuclear Regulatory Commission One International Place Washington, D.C. 20555 Boston, MA 02110 2624

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l Office of the Secretary (2)* Adjudicatory File (2)'

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Comadssion Attn: Docketing and Senice Section Washington, D.C. 20555  :

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9 L Jo T. Hull '- '

unsel for NRC Staff t

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