ML20073R759

Motion to Compel Palmetto Alliance Response to Util Interrogatories & Requests to Produce Re Palmetto Alliance Contentions 6,7,8,16 & 44.Responses Inadequate to Date. Certificate of Svc Encl.Related Correspondence

ML20073R759
Person / Time
Site:	Catawba
Issue date:	04/29/1983
From:	Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8305040538
Download: ML20073R759 (65)

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RELiTED COIUmspONDENQ 0N: QED s

UNITED STAT _ES 0F AMERICI _.

t NUCI; EAR REGULATORY COMbhSSION

'03 *.':" -g 'p,.y BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of

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--et al.

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DUKE POWER COMPANY, Docket Nos. 50-413

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50-414 (Catawba Nuclear Station,

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Units 1 and 2)

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APPLICANTS' MOTION'TO COMPEL Duke Power Company, et al.

(", Applicants"), pursuant to 10 C.F.R. 2 4 740( f), hereby move t,his Board to i-ssue an -

order compelling Intervenor Palmet,to Alliance to respond further to hpplicants' Interrogator 1es'and Requests to

- Produce relatincj toNa1metto Al1 anc[ Contentions 6, 7,_

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16, and 44.1 This Motion to Comoel is necessary because Pa'lmetto Alliance's responses to Applicants' discovery requests.are simply inadequate.

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l~-T?ie Board has held;in abeyance, Applicants' Decemb'er 2 0, 1982 Motion to Compel against Palmetto Alliance (dealing with Contentions 6-and-7)_until the Intervenor.had a

" limited 'right of first discovery'" and, based upon the information obtained therein, s.upplied additional-discovery responses bn its various contenti~ons (January 20, 1983 prehearinf confer ~ence. See Tr. 805).

Accordingly, with respec.t to Cdntentions 6' and 7, the instant pleading 'sh5uld be viewed as a renewal of the

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outstanding Motion -to Compel.

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INTROD.UCTION2 w

The instant Motion is prompted by the filing of

" Palmetto Alliance Supplementary Responses to Applicants' 4

and Staf f's Interr.ogatories Regard' ng dontentions 6, 7, 8,

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i 16, 27 and 44," April 19, 1983 ("Suppbemental Responses").3 These Supplemental Responses ~stea,. in turn, from the Board's December 22, 1982 Memorandum and order

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." December

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• 22 Order"), in which the Board too the unusual step of granting Palmetto Alliance a "righ,t of first discovery" against Applicants and the NRC Steff-before requiring it to provide responsive answers to outstanding discovery _

-m requests.

See December 22 Order arJpr 16.

These Supple-

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- mental Respo,nsed, ther'efore, presuma61y refl'ect the information which P.almetto Alliance has obtained through

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its 4 1/2 month opportunity for unilateral discovery, as well as the information supplied _to'the Intervenor by the Applicants and Staf f during the months of discovery which preceded the December 22 Order.

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2 A more detailed descriptidn of[the events leading to the filing of this Motion to -Compel is set forth,in ",Appli-cants' Motion to Compel or, _in the Alaernative, to Dis-miss Contentions," filed December 20, 1982.

The motion in the alternative applied only to Contenti'O'h 7.

3 Applicants have n,ot_ moved _to c(mpel additional. Responses with respect to-Palmetto Alliance's answers to Interro-gatories on Contention 27.-

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_ 4 As we wiJ1 discuss in the attachment _to this pleading, Applicants submit that Palmetto Alliance's Supplemental Responses on Contentions 6,

,7, 8, 16, and 44 are inade-4 quate.

They are characterized by 'the iame ' vagueness, I

evasiveness and overall unresponsiveness 4 found in the Intervenor's earlier answers'to discovery filed months ago

(--in two instances, one year-agog.5 They fail to draw,

'upon the extensive i'nformation obtained in Palmetto Alliance's discovery of Applicants, and Staff.6

Moreover, 4

Rule 37(a)(3) of the Federal Ru"les of Civil Procedure provides that "an evasive or In_ complete answer is to.be treated.as a failure to answer."-

5 On April 9t.1982,, Applicants filed. Interrogatories and requests to prodbte"on ContentionII.6 and'7.

On August 9

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and 16, 1982, Applicants filed Interrogatories and requests to. produce on Contentions 16 and 27 and Con-tentibn d, r'espectively.

On-December 3, 1982, Appli-cants filed Interrogatories and Requests to produce on Contention 44.

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6 Applicants have comp' lied fully with a11 Palmetto Alliance discovery requests.

To summarize, on September 22, 1982, Applicants filed'their respons.es to Palmetto

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Alliance's Interrogatories-on Contentions 8 and 27; documents identified in those responses have been avaifable-for inspection 1_nd copying since October 4, 1982.

On October 19, 1982, Applicants responded to Palmetto Alliance's Interrogatories on Conte,ntion 16.

Documents identified in those fesponses have been available for inspsstion and copying since November 1,

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On December:31, 1982, Applicants responded to Palmetto Alliance's Interrogatories on Contentions 6 and 7; the documents identified in those regponse,s have been available since _ February 15, 1987 Following the Board's Order of February 9 on-Palmetto Alliance'm Motion to Compel, Applicants provided further responses on February 28, 1963.' The documents identified in those responses were available for idspection and.topying at the Intervenor's 14aich 14[ 1983 visit. Final-ly,'Appli-(footnote continued)

_..i, these Supplemental Responses. ignore thg purpose and scope of discovery in NRC licensing proceedings, (viz., to narr'ow and clarify the basic issues, thereby enabling the partics-4 i

to ascertain what they will face at the hearing and prepare to meet it).

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Applicants maintain that this. matter takes on added significance when viewed in the light of Palmetto Alli,

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'ance's pattern of behavior throughout this proceeding.7 Since July, 1981, when its involvement in this licensing

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proceeding began, Palmetto Allianta's' bahavior has-been -

characterized by repeated attempEs_to avoid properly defining the issues prior to their~ consideration in an -

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_ adjudicatory. hearing ~ setting.

Rathey,- time and again, Palmetto _Al(iance,h,as provided vague, evasive and unresponsive material in its pleadings so as to afford itself the. greatest possible lati5ude as.to_the meaning of

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(footnote continued from previous cants on March 25 filed responses to Palmetto Alliance's Follow-up InterrogatoriesI_ Documents associated with those responses were available for inspection and copy-ing on March 30, 1983.

By letter of April 12, 1983 counsel for Applicants sEMMari(ed the above and'provided j

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in response to a-telephone conversation with counsel for

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~~ Palmetto Alliance certain{information,respecting Bis-covery already had.

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In assessing the significange of a party's unmet obligations in an NRC proceeding in order to'deteTmine appropriate sanctio,ns, one of the factors o'be t

considered is "whether its occurrence is a,n isolated incident or a par _t of a -pattern of behavior ~.?

Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).

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4 its contentions.,To adopt a_ phrase coined _by the D.C.

Circuit, this pattern of behavior amounts to ' playing " hunt the peanut." Cf, Connecticut Light. & Power acompany, et al.'

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v. NRC, 673 F.2d 525, 530-531 (D.C. Cir. 19'82).

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Illustrations of Palmetto Allianee's " hunt the peanut" tactics are seen in~the following: (1) the skeletal nature of its initial contentions; (-2) the unresponsiveness of,its

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'initialanswersto(pplicants' Interrogatories, which Interrogatories were acknowledged py,the. Board to be pro-

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per8 (and indeed were not objecte4-to by the Intervenor);9-

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4 the failure of Palmetto Alliance tp. cooperate with NRC Ls

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Of fice of Investigations with regard' to allegations of

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' faulty workmansh'ip;40 and, (4) the.i_Fstant' responses to 8 ~ The Board stated in its December 22 Order (p. 6) that Applicants' Interrogatories " appear to be of a routine, boilerplate variety.wbich are_usually. answered without much objection."

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9 In its December 22' Order, 'the-Board s.tated with respect to Palmetto Alliance's " don't know" responses:.

Acknowledging the legilimacy of-the areas of inquiry [of Applicants' and Staf f's Interro-gatories], Palmetto also apparently acknowledges their obligation _,to ans9er (hese interrogat6 ries fully prior to hearing. (p. 10).

The Board also poi ted ou.(p.',4) that Palmetto Alliance has not raised objections-to Applicants' Interrog,atories on Contentions 8, 16 _and 27,on grounds of relevance.

(Nor has Intervenor done so onicontentions 6 and'7.)

2 10 See NRC letter to Board dated, November 4,-1982 and

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attachments ther,eto.

Thi_s letter was in r'esponse to a concern raised-by the -Board itself. See Board letter to NRC Sta f f dated. January 26, 1982.

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____ 4 Applicants' long-st,anding Interrogator,ies. - The net result is that Palmetto' Alliance is able to come before this Board j

in Aprir'1983, with contentions that are no more focused 4

than they were in July of 1981, de' spite the fact that this Board's manifest intention in givihg Palmetto Alliance a limited right of first discovery.was to place it in a position to provide adequate and ubstantive responses.to

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Applicants' Interrogatories.

See, December 22 order at pp.

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As a result, the specific. nature.of Palmetto

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Alliance contentions remains undi'stiosed and' Appli" cants-find themselves being forced to pr.epare to meet "any

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conceivable thrust" Palmetto Alliafice~might seek to make u-arising out of the general topic areas of its contentions.

See Pennsylvania Power & Light Co.,

et al. (Susquehanna Steam Electric Station, ' Units 1 and 2 ), ALAB-613, 12 NRC 317, 338.(1980), quoting.with approval.p.

6-of an August 24, 1979 unpublish.ed Memorandum arid Order of the Licensing Board in that proceeding.

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Simply put, Palmetto AlLianed has taken advantage of the situation and Applicants are suffering the.cgnsequ-

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ences.

Unless this-Board takes decisive, prompt act; ion, a

l real potential for delay will-exist in that vague con-tentions will be able to_. serve _as springboards for un-bridled inquiry at the,adjudi_catoEy hearing. _ Yurther, the j

very filing of this _ Motion,-cr.eates the potentii~al, for de-l

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, 4 laying the c1pse of discovery on May 20,. L283, which can, only work against Applicants.

Granting the instant Motion and timely receipt of responsive answers wi11 go a long way 4

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to correcting the situation.

Applicants submit that tie time se past for Palmetto Alliance to explain ~its allegatiqns on intervention in this proceeding.

Palmetto-Alliance, having been giyen every, conceivable opportun'ity by th'is Board to satisfy its obli-

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gations as a party to this proceed,ing, is out of excuses.

-- r Either Palmetto Alliance has the d,nformation-sought-by -

Applicants, in which case it must produce it, or it does not.

If it 'does not have this infor ation, then it must,-

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- now admit th.ls fact Applicants thus -reques't this Board to rule expe,ditioty, sly on their Motion to Compel, grant the re' lief sought, and order Palmetto Alliance to provide responsive. and substantive answer $ by May 10, 1983..

Applicants further request this Board to alert Palmetto Alliance that its failure to -comply with' the Bd'ard ts dis-covery drder will subject itI upon proper motion, to the potential imposition of sanctions including dismissal of contentions.

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ARGUM5NT Applicants' approach to discovery has been straight-forward.

Applicants drifted theif Interrogato' ries to track the language of the,contentio,ns.

.[The Interroghtories were

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..s structured to, ascertain (1) ghe. scope.of.each contention; (2) the specific aspects of the contention; and (3) the basis supporting each specif.ic all.egation.. Applicants' 4

approach was to ask a siries of qu'estidns c'oncluding with an inquiry as to the specific basis fer the positions set forth in response t6 the serfes qf. questions.

As noted I

above, this Board has-recognized that these interrogato, ries

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'were proper and of a routine boilerp ate nature. See p.

5, supra.

However, despite the strai,ghtforward nature of the

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c Interrogatories, Palmetto Alliance,-has -provided -defective repsonses.

Applicants submit that_the various defects _

which charac'terize Pa1metto Allianc 's Supplemental

- Responses fall into%h'e following -fojr categories:

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. fa.ilure to specify bases for Responses; (2) failure to specify regulatory requirements; (3)

Responses whi.ch are vague' evasiv_e,and unre-sponsive te Applicants' Interrogatories (i.e.,

which fail to delineate.-the precise nature of

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the contentions);

(4) failure to respond to at all.

0 NRC case law is clear'that in'terrogatory responses which fit any of these fbur categories dre unacccepta'bfb'and

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warrant a motion to compel by the, proponent of the

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interrogatory.

Each of these categories is dig,cusse,d below.

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Fail,ure To Specify Bases For Resoon'ses A review of those Palmeto Alliance Supplemental Responses which purportedly provide the "ba,ses" for its answers reveals that not one of these Responses specifies precisely which documents cited conta[n the desired infor-

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mation.

For example, inresponshtoInterrogatorieson Contention 6, which sought the ba es for the S6pplement'al Responses provided,' Palmetto Alliance refers to its ori-ginal (April 28, 19.82) Response c[which'it recites a long list of documents ranging from the' FSAR, SER and unnamed

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" pleadings",to the U.,S. Con stitut'l'cn, the Atomic Energy

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Act and unspeo,ified NRC regulat_ ions... Pa.lmetto Alliance also notes i~ts reliance upon "Appli~a$t's and Staff

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Responses td Di'scov'ery and documents produced in connection with those responses" (Supplemental, Responses.at p.

6).

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response to the same-type of Interrogatory 'on other

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l contentions, Palme~to Alliance again pro _vides only a list t

of documents, making no effort to :specify which j

l Supplemental Interrogatory Re'sponses are based upon which of these documents 7, much less-identifying relevant sections

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'-E5 of-the documents.

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i The Appeal Board.has.recently ruled that i,nterrogatory answers which respond to a reqdest for specific information l

by referring to a list of documents will not suffice under NRC discovery rules :- I J

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Answers,should be complete in themselves; the interrogating party should not.need to sift through documents or other materials to obtain a complete answer. 4A Moore's Federal Practice

$3}.25(1) at 33-129-130,(2d ed. 1981).

A broad statement that the information sought by an interrogatory,is t6 be.found "in a mass ~of documents is also insuf f.icien.t. Harlem River Consumers Coop., Inc.

v.

Associated Grocers of Harlem, Inc., 64 F.R.D.

459, 463 (S.D.N.Y. 1974).

Instead, a party must specify. precisely which documents cited contain the desired information.

Martin v. Ea ston. Publishing ' Go., 85 F.R.D.

312, 315 (E.D. Pa. 1980).

See also Hagler v.

Admiral Corp., 167 F.

S~upp. 413 (S.D.N.Y. 1958).

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[ Commonwealth Edison Company 4 Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC 1400, 1421, n.39 (19_8-2) (emphasis added)]. "

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i Ac cord ingl~y, under the Byron standard each of these Responses i_s deficieqt in that it.lis : failed to " precisely"

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identify the s,ections or portio,ns of_ the, documents relie~d u

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upon.

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Faflube.To Specify Regulatory

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Requirements Many of Palmetto Alliance's _ Responses _are cha.racter-ized by an apparent ef fort to avoid specifying controlling regulatory requirements.

For-example, when'asEed to specify -"all..NRC requirements _ which you contend have not been satisfied" (Interrogatory 7, Contention 6) Palmetto Alliance simply refersdced Append.fx A to 10 CFR Part 50.

Appendix A consists of 64 criterid, each directed to a discrete aspect of plant design, construption a_nd op'er-s ation.

In numerous othbr instances Palmetto Al-liance reliesuponthegenericpublichealthandsahetyrequire-

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5 0. 5 7,,( a) ( 3 )s ll.despite the ment set forth in 10 CFR w

existence of detailed regulations governing the precise matters -in issue.

An exampl,e of this situation is seen in-4 Palmetto Alliance's Responses to Interrogatories concerning l

Contention 8 (operator qualification)

Therein I.ntervenor, at every juncture, makes referenge, to 10 CFR $50.57(a)(3);

it fails to refer to any aspect of 10 CFR Part,55 (except

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fordefinitionalpu{ poses), d'espite its knowledge of the part, as evidenced by its pleading,of March 31, 1982.12 Appli_ cants maintain that in fo,rmation concerning d

regulatory requirements which have, purportedly been vio.-

lated is cru~cial. See Public Servicet Company of New

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~ Hampshire, et af. (seabrook-Station,[pnits l' and 2 ), LBP-

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N.RC (November 17, 1982), slip op. at 82-471-03-OL, p.' 9, wherein the Board stated:

In co.nclusion, this Board beiieves tha.t.the basis with reasenable specificity standard l

requires that an intervenor i-nclude in a safety contention [13] a~ statement ~of.the _

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'j Applicants are cognizant of the Board's statement in its December 22 Order (p114) -which advised Palmetto

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Alliance that in some situations reference to 10 CFR

{50.57(a)(3) would suffice.

This reference addresses those situations wherein a " regulatory gap"~sxists.

Applicants maintaiH that wheri regulations exist.which

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7ertain to the subject ma~tter no " regulatory gap is present and thus such a g~enera_1 response is inadequate.

Applicants further maintain that with respect to, each of these contentions, such regulatiops exist.

12 See " Palmetto Alliance /CESG Responses and Object ons to Order Following Prehdaring Con,ference," at-pp. 11-12.

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13 Applicants submi~t Ehat this sdandard also applies to environmental contentions,-

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_ 4 reason for his contention-This statement must either allege with particul'Erity that an applicant is not complying with a speci-fied regulation, or allege with particu-larity the existence and detail,of a sub-4 stantial safety issue on which the regula-tions are silent.

In the abs'ence of a

' regulatory gap,' the failure to allege a v.iolation of the regulations ~or in attempt to advocate stricter requirements than those imposed by the regulations will result in a rejection of the contention, the latter as an impermissible-collateral 4ttack on the_,

Commis sion' s rules ( 10 C. F. R.~ 92. 7 5 8).

[ emphasis added]

Iptervenor's failure to spe,cify With. particularity the

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precise NRC standards and requireryents 'af fected"b7 the -

deficiencies alleged in this con'tention constitutes a -

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clear violation of the Seabrook ruTe.~

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Furthe r.more, Palmetto Alliance's-refusal to provide specific,referenc,e,q to the NRC rules and regulations which Applicants have allegedly violated also constitu".es a failure of Intervenor'.s.

i ironclad obligation to examide the. publicly l

available docume~ntary material with suffi-cient care to enable it-to uncover any in;'

formation that could serve as the foundation for a'sp*6cific contentiEn.

[ Duke-Power Co.,

et al. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, ___ NRC _ _ slip op. at 13].._,

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As the proponent of - co'$1tentions whi'ch specifically.a;11ege

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that Applicants have failed to adhere to various NRC

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regulations (and that Applicants remain an non-compliance w.

with such regulations),' Palmetto liiance cannot be allowed to provide evasive a.nd_unresponsihe answers to 2iscovery

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when the Interrogatories in question.are. directed at basic

- s information which, we believe, Palmetto Alliance was required' to have when it proffered th,ese contentions as 4

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issues for litigation in thi~s proceeding.

As this Board has ob. served:

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Furthermore, we have difficulty accepting at face value some disclaimers.of knowledge about contentions.

While we might : accept a ' don,' t know' response _to a question ~ catling for proof

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of a contention, it is more difficult for us to credit such a response to a question about the legal theory of a contentioh.- - e.g., Which NRC regulation is -violated' by ths contention?

The

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contentions were, after allf'. formulated with 'the regulations on the table and with considerable information available to the.Intervenors.

In those circumstances, Palmetto must have had some

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legal theory in mind. (On the'other hand, it is possible 9that,a b,etter legal theory for a con-tention will eVblve as evidence _is acquired through discovery.)[ December 22 Order at pp. 12-

.13].

3.

Responses Which Are Vague, Evasive And Unresponsive.To

_ Applicants' Interrogatories Many of the I.nterrogator.ies o which Palmetto Alliance has purportedly " responded" have not, in even the loosest sense o5 the word, been "ans ered.'"

For example, when

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asked '(Interrogatory 8, Contention. 8) to state.what

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constitutes suf ficienE~ hands-on operating experience. ( the linchpin inquiry with~ regard'to C5ntention 8) Palmetto Alliance simply responded thatt

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Palmetto is not prepared to establish atthis time a level of '-'suf ficient', hands-on operating experience need_ed_to ass.ure safe operatioh~of the

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. _ - - _ - _ 4 facility; but contends thq.t the. experience level asserted for Applicants' personn#1 is clearly

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inadequate.-

As-Palmetto Alliance is, surely aware,* discovery in NRC

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licensing proceedings is intended"to insure"that "the parties have access to all releva$t, unprivileged infor-mation prior to the~ hearing?r Boston Edison Company (Pilgrim Nuclear Generating Station, Unit 2), _LB P-7 5 -3 0,,

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'NRC 579, 582 (1975).-

While intervenors may rely heavily on discovery to obtain evidence to sypport their contentions, s-the Licens_ing Board in this proceqding-has expressiy noted-that " discovery can be equally Important to Applicants and t

the Staff for different purposes ef e assess the

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intervenor's,' case ahd ' prepare for tr[al. " December 22, 1982 Order at p.,6.. Acc.ordingly, NRC regulations contemplate that applicants will be-allowed essentially unrestricted discovery.into the legal,and factual und.erpinnings of Intervenors' contentions:

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[I]nterrogatories seeking specifiction of-the.

facts upon which a claim or contention is based are wholly prope.r, and lhe party-may be rsquired i

to answer questions which attempt to ascertain l

the basis for his claim or, for example, what j

deficiencies 'or defects were ' claimed to exisE

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with respect to a'particular situation or cause.

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That such an obligation 2to disclose is imppsed.,upon

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Palmetto Alliance as a party to t}is proceeding is hardly open to question or c6ntroversy, since the U.S.

Supreme I'cumbent Court has explicitly'rEled that "[i]t is in l

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upon intervenors who wish to participate [in an NRC

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licensing proceeding] to structure their participation so that it Js meaningful, so that it alerts the agency to the, 4

intervenors' position and contentibns.\\ Vermont Yankee

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Nuclear Power Corp.'v. NRDC, 435 U_.S.,519, 553 (1978).

And as the Appeal Board-has stated:

The Applicants in particular, carry an unrelieved burden of proof in Commission p,roceedings.. Un-less they can effectively 1,nquire into the posi-4 tion of the intervenors, disqharging that burden may be impossible.

To permit a party to make skeletal contentions, keep the bases for them secret,.then require its adv.ersaries to meet any conceivable thrust at hearing would be patently i

unfair, and inconsistent with sound record.

[Susquehanna, supra, 12 NRC at~338 (emphasis I

added)].

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These and numerous other pronouncements of the Commission hav.e made it clear that g order to satisfy their obligations as participants in NRC proceedings intervenors must do more than simply raise is' sues.

The i

Appeal Board has exp' licitly. pointed out that:

[I]ntervenors al'so bear _evi'dsntiary responsi-bilities.

In a ruling that has received ex plicit Supreme Court approval, the Commission has stressed that an intervenor must come for-l ward with evidence sufficient.to require rea-sonable minds-to inqui.re. further' to insure-that its contentions are explored-a.t the hearing.

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__.Obviously, interrogatories designed to discoved

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(if any)' evidence Enderlies an intervenor's what own contentions are not out of order. [Id. at 340

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(citations omitted)]'.

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4 In short, a " litigant may not make serious allegations against another party and then refuse to reveal whether those arilegations have any basis. ",Id,.

at 33 9.

d.

a Evasive and incomplete discov;ery' responses such

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as those provided b'y Palmetto All(ance,throughout'thih

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proceeding are clearly insufficient to satisfy Inter-venor's burden to "co,me forward with evidence 'suffi-

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.cient to require reasonable mind,s to-inquire further'"

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Id. at 340.

Applicants acknowlesige, that in responding

.7 to discovery, requests, a' party "f(e,d,,only revea,1 information in its possession or-control," and that "C a]ssumincj :the truthfulness of 'the~2 statement, lack of knowledge is $1waya_2n adequate respehse." Id. at 334.

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this advanced stage of the proceeding, however, At Palmetto Alliance's htte'mpts to'avo'id providing responsive answers are unacceptable.

This is' particularly the cas'e since _ Palmetto Alliance has been given an extremely unusual "riglit; of first ~ dis.covery" for the past.four months, providihg i,t with a more_

than ample opportunity to take discovery from the

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Applicant s and NRC_ Staff and-thereby " flesh out" its i

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contentions before ha'ving to-file one single

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Supplemental Responsei

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4 Finally, Palmetto Alliance's recent Responses do almost nothing to further one of the fundamental pur-poses oL discovery, which is to " narrow and, clarify the bas.ic issues between the parti ~s."14 Discovery in e

adjudicative proceedings is designbd go "make a trial less a game of blind man's bluff and more a fair contest with the basic issues,and. facts disclosed to the fullest pract cable extent.",15 Vague, evasive and i

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unresponsive answers, particuarly at this late date,

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are inconsistent with this recog((zed discov.ery,.

objective.

4.

Failure To Respond

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To Interrogatories

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C In more' than a few instance.s PElmetto Alliance has simply failed--Eo respond. 10.CFj'32.740b(b)

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clearly states that each interrogtory is to be answered or objected,to.' Palmetto Alliancd's actions,

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in this regard, are in contradic_ tion of the regu-lations. Intervenor must be made to comply with it's obligations as a party, whether by means of a motion I

to compel responsive interrogatory answers or by-means

- -Ei-of-other lanctions".16 14 Hickman v. Taylor $ 329 U~ S. 495, 50p-501 t19'47).

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15 United States v.

Proctor & Gamble Co.,

356 U.S.'677 (1958).

16 To enforce compliance Qi.th the provisions of the (footnote. continued) e

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Having set forth the four categories which

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address the defects of Palmetto Alliance's Supplmental Response.s, it remains for Applicants to rel, ate.such defects to specific Interrogatorieis so'that*the Board can determine the propriety of a r'equgst to compel an answer.

The specific Interrogatory Responses as to which Applicants ask this Board to compel responsive answers are set forth in the Att_achment to this Motion

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and made a part hereof.

The Attachment discusses the

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subject Interrogatories on a conie"ption..by contpnt, ion basis.

In such discussion, the Responses.are grouped into the ca'tegories discussed ab' ova 7 thereby

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- eliminating tNe neerfor repetitive tegal citation.

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Appl _icants are. hopeful that such' format will enable the Board to pro $1ptl resolve the matter.

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( footnote contidu ck frofa prev.ious.page)

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i discqvery rules, Boards have available to them a full

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range of sanctions,- up t_o and. including dismissa'l of a party to a proceeding. 10 CFR-$2.718-(c); Statement of Policy on Conduct of Lice'nsing Proceedings, supra, 13 NRC at 454 (1981).

For a party to hpve cofitentitns admitted to the ' roceeding and_ tMn to refuse to, comply with discovery procedures invites sanctiona up to and including dismissal of the contentions by the Board.

Commonwealth Edison Company (Byron Nuclear'. Power S ation, Units.1 gnd_.2 ),J ALAB'-6 7 8, 15,NRC I400 1416-4

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1417 (1982).

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. III. CONCLUSION

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For the reasons set forth above,7+an'd Tn the basis of the discussion set forth in the Attachment, Applicants 4

respectfully request that their Motion.to C,ompel be granted and that Palmetto Alliance be ordered to file

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respon'sive answers prior to th'e May 20, 1983 close of

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discovery.

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Respectfully submi~tted, t

Mibhael McGarfyc: IIJ//

Anne W. CottingMam.

DEBEVOISE & LIBERMAN 1200 5eventeenth Street, N.W.

Washington, D.C.

20036

( 2,0 2.) 857.-9833 u

Albert' L'Carr, Jr.

Ronald._L._Gibsop DUKE POWER COMPANY

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P.O. Box 33189 Charl,otte, North. Carolina 28242 Attorneys for Duke Power Company, et al.

April 29, 1983

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ATTACHMENT I.

. RESPONSES TO INTERROGATORIES.ON COlTTENTION 6 Applicants' I'nterrogatories r,egarding Contention s.

6 sought information such as (1) the definition of material terms in the. contention,* (2) the specific'

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instances of faulty workmansh'ip ob pqor qualit?-

control which gave rise to Palmetto Alliance's concerns,-(3) the crecise,regulat{obs with which Palmetto Alliance contends Applica'nts have not com-plied, and (4) the ba,ses for Palme35o Allia_nce's allegations.

-Applicants' request for,su,ch informa-tion was con ~sistent with the Boards observation that Intervenor's cdse-rbgarding Contention 6 would

" presumably involv[e] specific instances of mis-feasance ~.~.

Dece'mber 1 Order at p. 3.~1 S e'e -

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also 'the transcript of the prehe.aking conference of J.

January 12, 1982 wherein Chairman -Keliv noted that. to prove its case on Contention E, Palmetto Alliance

. more specific-about quality ass ~urance must "get

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.-- - tha't i s subst'andard

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. '. (Tr. 119).

1 Applicants are aware that the-Board > stated that-such proof "need not be adduced at sthis stage. " -December 1 Order at p.

5.

However, -Applicants interpret this statement as applying.to the stage of the proceeding at which the contention _wa'sJadmitted, not to the discovery phase of the proceeding.,-

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I t-4 Applicants submit that Palmetto's Supplementary Responses are vague, unresponsive and contain little information which was unavailable to Palmet,to before 4

its earlier submittal on Contention 6.'The specific

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infirmities are discussed below.

A.

Failure to Speerfy Bases ~for Responses (Interrogatories 9,

19, 24,935, 52, 57, 65, 75, 81, 82, 94, 101, 106/ 214 and 121)

Palmetto Alliance's answers.to those

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Interrogatories which attempted to establish the bases

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for or information'regarding its,5hsppnses are inadequate.

In reply to these 13terrogatories, Intervenor referred t'o its April'2'S[~ lO82 Response to f

- Interrogatory 9,'whidhistates: '

b.

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Applicants' Application, Final Safety

- Analysis Report and pleadings; Jntervenors'

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Petitions, Supplements, Affidavits and pleadings; NRC Staf f's Safety Evaluation,of the Catawba Nuclear Station Unit Nos. 1 and

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2, Systematic Assessinent of~ Licensee Per-formance Review Group; Licensee Assessments, NUREG-0834, and pleadings; oral and-written communication by Palmetto Alliance membersr Nolan R.

Hoopingarner, II, an_d William R.

McA' fee to counsel; The United States Consti-tution The Atomic Energ? Act of 1954, as I

amended, and Title 10 Code of Federal Regulations.

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-- -In addition, P'a'im tto Allian'ce provides as its' bases

" documents produced in.conneqjion With those [ Applicants' and Staff's] Responses [Co its -discovery? requests],,,

2 particularly documents-reflecting complaints of harassment, threats, pressure to appr.ov'e. fault}y workmanshipTand faulty

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• 4 workmanship a,s identified =by a number of Catawba Welding Quality Control Inspectors in 1981 and 1982."

Supplemental Response-at pp. 5-6.2 Interrogatory answers which rbspodd to'a request fo r.

specific information by_merely ref' erring to a mass of documents are insuf ficient. - The, answers should be complete in themselves, and a party should aurt need to sift through Mocuments in hopes o-f guessing what The other party will rely on.

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c B.

Failure To Specify Regulatory,Requir.ements..

(Interrogatories 2, 7,

38, 39* 100)

Applic, ants' Inte,rrogatories.N7al,2 and _7

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( regarding all,egations of substandard,wo,rkmanship),

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38 and 39 (regarding 't5e entire dodtbn' tion), and 100

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(regarding alleged-Beficiencies) reguested that Palmetto Alliance specify "those NRC requirements concerning'[a particular' alleged defici'ency'] ~.

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which you contend are.not met ~.".(See Supplemental Responses to Interrogatory 13, at:p. 6).

Palmetto Alliance's responses to these Interrogatories were uniformly vague, evasive,~and/or

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unresponsive, and p'rovided ng-ind'ication of the 2

In response to Interrogatory 35 (Supplemental Re'sponses at pp. 9 and 10), Palmetto also refers to others.

documents "known to Applicants and Staff and produced by them in Response to Palmetto questions in discovery A simple reference to such information falls far short of satisfying' the Intervenor's -obligation to respond to such In_terrogatorids.

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specific requirements which it contended that W

Applicants had failed to meet.

For example, in respondi-ng to Applicants' request that it specify the

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particular NRC requirement associated with* alleged deficiencies (Interrogatory 100)','.Intgrvenor referred to the response to another Thterrogatory (No. 5),

which, although conta.ining several paragraphs, fails to mention or refer to any Commission regulation.

All other Palmetto Alliance Responses co,nsist of a

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c statement that Applicant has failed..to.. comply with.all.

requirements contained in Append-ix,A to 10 C.F. R.

Part, 50.

Appendix A to 16 C.F.R.

Part GO contains-64

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g' criteria ran' ing irMeope from gener"al fire' protection requirements (Criterion 3) to suppression of reactor power oscillations (Criterion 12).

Palmetto A11iance's Contention _6 clearly d' e's not support a o

position that all such criteria are at issue.

Applicants accordingly submik that Infiervsnor's Respons&s to.the aforementioned Interrogatories are unacce'tably vague and unresponsive, and provide p

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Applicant,s with little' infori5ation to prepare their,

a 2-case in response to Palmetto'Allisnce's ' contention.

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Responses Which Are Vague, Evasive And Unresponsive To Appli6 ants' -w Interrogatories (Interrogatories 3, 5,

8, 14, 28, 29, 30, 31, 33, 34, 40, 41, 42c 44, 47, 48, 49, 50, 53, 54, 55, 55,

. 59, 60, 61, 96, 97, 98,' 99,.104,,105, 108, 109, 110, 112, 116, 119, 120,; 122, 123 and 124) s The majority of Applicants' April 9, 1982 Interrogatories were designed to* determine the specific bases for Palmetto Alliance's Contention 6, vit., the specific instances of alleged substandard workmanship or poor quality control-whiqh gave kfse' to Palmetto Alliance's concerns, and the potential impact of such instances on safe operation of the plant.

Su.cW~information is crucial

-t-to the preparation of-Applicants' cas,e in response to Intervenor's contention.

Indeed, lE -ls precisely such-

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specific instances which, Palmetto maintains will be the f

focus of litigation with regard to this conte.ntion.

See Palmetto's Resp ~onse lo~ Interrogatory 23, wee ~ rein it states

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thatwhatmustbelitigatedwithhespecttothi{scontention

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is the "[e]xistence, extent, and relationship among substandard workmanship, poor quality control, actual plant construction and a-degree of-assurance that the pant can

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opeute without enilangering -the safety of the pubild. "

The majority of falm.ettd's answers to these, requests

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for specific information are vague, evasive and unrespon-1 l

sive.

Applicants will address each of Intervenor's i

de ficient responses -bglow.-'c 2

e e-

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4 4

1.

Supplemental Response To Interrogatory 3 Interrogatory 3 requests that. Palmetto Alliance state how substandard workmanship at the Catawba. station has resulted in the failure to meet specific standards.

In response, Interveno'r states that':.

Palmetto is concerned that deficiencies in Duke Power Company's Quality Assurance program, including compaqy pressure 'on Quality Assurance Control Inspectors and others to approve ~ faulty workmanship, have allowed s.ubstandard workmanship in plant construction to go uncorrected.

Palmetto Alliance has not determined and therefore cannot yet content (*th'e sp'cific manner e

in which resulting workmansh.p...is.below standard...

. 7 It should be recalled that Palmetto, Alliance responded _to this Interrogatory on April 28, 1942 by stating that it

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" lacks sufficient 'kn$wledge to answdr, and is awaiting responses" to its discovery request.

Having now obtained sQch discovery, Intervenor.has still'not responded to the i

Accordingly, Applic' ants main,tain that Interrogatory.

Intervencr's answer to Interrogatory 3 is deficient.

2.

Supplemental Response'tIp Interrogatory 5 Interrogatory 5 requests that Palmetto Alliance "speci'fy the activities and areas of plant construction for

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which [Intervenor gontends]'T

. the workmanship is, substandard."

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The April 28, 19i32 RespNnse t.o No. J states 'thift

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Palmetto "at present lacks s]fficient knowledge to answer, and is awaiting response" to its discovery request.

Now, e

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- 4 after the discovery material has been made available, w

Intervenor, in its Supplementary Response, references ith April 2S,1982 Response to Interrogatory 8Q and implies that, in addition, other examplesjof s'nbstandard workmanship may be "found in three '_gro, gps of documents provided by Applicants in di scovery As to the first group, Palmetto Allia,nce cites the personnel exit interview

-and "other records of Mr. Hoopingarnsr which are believed

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to reflect further details of substandard workmanship he observed."

As to t.he second groid,...Falmetto Allia.nce

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refers to certain NRC Inspection-Re, ports identified by Applicants 'during discovery, whicCarose ou~t of complai;2ts by Mr. Hoopinciarne:-.'"which are b.elieVed 'to reflect his

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further observations of faulty workmanship."

These Inspection Reports reflect the '1979-1980 NRC inquiry and evaluation of the complaints made'b'y Mr. Hoop'ingarner.

As to the third group, Palmetto Alliance refers to an April 12, 1983 letter from Duke Power"Ch. Attorndy, A.V.,Carr, Jr., which identifies documents "which may reflect Mr.

McAfee's observation of substandard workmanship at

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Catawba.",

The referenced letter tr.ansmitted to Palmetto T

Alliance an index to certain documents that Applicants had made available for in5pec'tioT and copyiny purstlan"t 'to

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Intervenor's discovery requests. I

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A In its A,pril 28, 1992 Response to Interrogatory 80, referenced in its Supplementary Response to Interrogatory 5,

Palmetto Alliance cites as specific activities and areas of construction which it views asJinvolving' substandard workmanship (1) improper handling'and storage of stainless

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steel and electricai cable tin an unnamed area or construction activity.), (2) impr6per concrete pours for unspecified parts of the containm'ent during heavy rainfall, (3) improper inspection of, anchor bolt

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installation. (in an unnamed area-$5r.. construction activity),

(4) changing of (unidentified) blue,orints to re flect

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(unidentified) construction errorsrf(5) rainfall leaking onto unspecified electrical equipment._in the control room,

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(6) unspecified inadequate testing training, and (7) unspecified approval of. faulty workranchip.

In addition, Intervenor stated in its response to Interrogatory 80 that

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in order to provide more specific information, access to

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records sought in discovery'-requests' served pn April

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20, 1982 is necessary in order to-refresh" the memory of Intervenor's members making allegations of substandard workmanship.

Applicants havE made available to Inte_rvenor the documents requested.

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At the January, 1982 prehearing conference,'Infervenor m

characterized its members Mr. McAfee and Mr. Hoopingarner, as " chomping at the bit" to review such documents and to

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L provide information (Tr. 120).

However, Intervenor now states that its members have not had a chance to review

• such additional material, and implies, therefore, that Intervenor cannot be more specifid.

[orther, Intervenor states that upon review of this miterial and other "yet unknown" material, other activities or areas of substandard workmanship may be un, covered.

Intervenor in effect says

-that because not everything it h. opes ~to find to support its

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contention has been found yet, it wi11 tell us nothing.

7 But it must _tell us what it has (6.far,. and _per,i.oclically

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update its interim responses pur-suant to 10 CFR $2.740(e).

In shdrt despite ample oppohi3nity to' examine

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discovery materiala4"I-ntervenor has s' ailed to provide a

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complete and specific listing of the areas or activities of alleged substandard Gorkmanship on which it so far may rely as requested by Interrogatory 5.

Kather, Int'ervenor has merely provided a. discussion of some of its generalized i

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Thus,,instead concerns regarding construction a@tivities.

of narrowing.and focusing the issues,.this discovery j

respon'se has expanded and left unbounded the issues which Applicants must be, prepared to litigate.

Palmetto's failuEe to p'r' ovide a specific and complete listing of its concerns in 't'his response,is crucial'in that

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l its response to 30 other Interrogatories requesting 3

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3 Interrogatorie_s -Nqs._.28, c 29, 30, 31, 40, 41, 42, 44, (footnote.cpntinued)

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.A specific info,rmation simply refers to its response to e

Interrogatory 5.

3.-

Supplemental Response To Interrogatory 8

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Interrogatory 8 requests Palnietto Alliance to describe

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how the particular aspects of "su$sta.gdard workmanship" which it alleges have occurred results in the conclusion NRC requirementt have not b'en satisfied.

Applicants that e

• note that in Intervenor's April 28, 1982 Response to the Interrogatory, it stated that a compJete answer must await l

responses;to its discovery reque~sls...,

Now, afte.r cLiscovery.

documents have been made availabie,,, Palmetto Alliance _

states:

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[i]t can 'only.#el-ate this '[unsrie'gidied)

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substan'dard workmanship, the fGil details and extent of which remain undetected, to Duke's

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• fai-lure t'o sat'isfy the NRC.Tequirements of 10 CFR Part 50, Appendix B Palmetto Alliance's failure to idbn'tify any specific examples of substandard workmanship, and thus its failure to relate such examples to Commishion rsquiremsnts,which it alleges"that. Applicants have not Elet,. render this answer unresponsive.

Palmetto Alliance at this stage of the

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proceeding must be, expected to have identified spepi.fic instances of substandard workmanship and' to relate such to

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the specific language'of Appendix B.

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2 (footnote continued from previous page) 47, 48, 49, 5 0_, ~6 3; RO~,

81, 97, 98, 99, 100, 104, 105, 108, 109, 110, 112, 119, 120,'122, 123 and 124, e

.x 4.

Supplemental Response To Int errogatory 14 Interrogatory 14 requests that Palmetto Alliance specify Ahe manner in which NRC requirements noted in Interrogatory 13 have not been meti.

I6 response thereto,.

Intervenor simply references the~ docq;;;ents which it identified in its response to Interrogatory 9.

Notwithstanding Appl (cants' objei::tions to Intervenor's response to Interrogatory 9,' supra ~, Applicants maintain i

that the Intervenor's response does. not even attempt to address the requirements'which Phlae.tto.Allianc.e c.ontends.

l that Applicants have not met, or-th.e manner in which s.uch

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requirements have not been met.

Aecordingly, Applicants b.

maintain that"Intex=,ienor's ansGer.,is totially unresponsive.

5.

Supplemental Responses On Interrogatories

,,31, 40, 41,-42, 44, 47, 48,

- 287.29,.-30, 49, 50, 63, 80, 81, 96, 97, 98, 99, 100, 119, 120, 122, 123, 124

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Palmetto Alliance's^ Supplemsntal Responses ori' these i

Interrogatories al'1 refer Applic.aryts.to-Intervenor's l

Response to Interrogatory 5. (Interrogatory Respon'ses 47, l

48 and 49 also refer to the Tesponse to No. 41, which in l

l turn refers to the Response-to Not 5.

Interrocjatory Responses 96, 97,.98,;.100, 1-20, 12-2, 123 and 124 also refer j

l to Intervenor's Response.._to_No. 80, which in turn refers to

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i the Response to No. 5).

For the teasons set forth in the i

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4 discussion of the response to Interrogatory 5,

supra, e

Applicants submit that more responsive answers should be' compelled.

4 6.

Supplemental ' Response To Interrog'atory 33 Interrogatory 33 requests the-identity and current address of individu31s whicE Palpetto Alliance contends have performed poor quality cont'rel or substandard

• workmanship.

The nsmes provided-by intervenor are taken verbatum from an index of documents.crovided to it by c

Applicants in discovery.

The index.. lists the names of.

certain Quality Assurance employ'se_a.who voiced complaints i

or set forth problems and concernsTi it does not state that such individ,uals pd:-formed substandaYd work'.

Thus, while

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it appears that Palmetto Alliance is contending that these p5rsons have performed substandard work, the record does

,Accordingly', unless Palmetto

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not support.thi_s fact.,

Alliance comes forward with -specific examples that support

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allegations that the individuals named lierein Actually perform 6d faulty workmanship 1 the Response must be viewed as evasive and unresponsive.

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7.

. Supplemental' Respolise To Interrogatory 34 Interrogatory 34 requests th t Palm'etto Alliance i

identify the particular acts of poor quality control in which it contends that' named individuals were' involved.

Intervenor's answer is totally unpesponsive in;that it does

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4 A not even attempt to identify particular acts of alleged,

-w poor quality control involving named individuals.

IndeeB, Palmetto Alliance's response does not address-any general or specific act of poor quality control; rather, it references individuals who have " complained of quality control and workmanship deffciencies 8.

Supplemental. Responses To Interro-

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gatories 56, 59, 60 and Gl _

In these Interrogatories, Applicants request that Ihtervenor explain in detail the $ub' stance of its position that Applicants have not developed and implemented an

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appropriate, quality assurance progrgm:(Interrogatory 56),

provide an explanation of Intervenor',s concern regarding any alleged ~ inadequacies in policies implementing

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Applicants ' ' quality assurance progrJm (Interrogatory 59),

provide an explanation of Intervenor's concer,n regarding

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the allege'd'inadequaci6s'of procedures'for implementing Applicants' quality assurance pr.ogram (Interrogatory 60),

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and provide an explanation regarding Intervenor's ' concern regarding any alleged' inadequacies in instructions for implementing Applicants' quality assurance program

- -dT-(-Inberrogatory 61) ".

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'2 In response to'Applicanis' request for a detailed i

response as to the subsfance oT Palmetto Alliance'sx 3

concerns regarding Applicants' quality assurance program, Intervenor refers 10 tts..oiiginal} Response, which states 4

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4 that " Applicants' quality assur,ance program fails to provide adequate confidence that a structure, system or component will perform satis,factorily in service."

Intervenor explains that its conce'rn regard'ing Applicants' I

policies, procedures and instructions +for implementing its program is that "the progra5'does not work."

In short, Intervenor does not even attempt'to " explain in detail"- the

' substance of its concerns; rather, it presents vague, evasive responses to these Interrogatories.

Accordingly,

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Applicants maintain that such answers to Applicants' Interrogatories are unresponsivei, _

[

9.

Supplemental Response To tnterro-gatories 104 and 105 These Interrogatories request' thit Intervenor specify

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the particular'syst' ems affected.by alleged deficiencies and the impact of such deficiencies on plant operation (Interrogatory 104),-and state whether such' alleged'

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deficiencies are uncorrected and the basis 'for this response (Interrogatory 105).

Applicants note that in Palmetto Alliance's April 287 1982 Responses to these

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Interrogatories, it stated-that a' complete answer must

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awa t responses to'its discovery requests.

Now, after the discovery material has been-made ivailable, Palmqtto Alliance merely references in its_ Supplemental-Responses its responses to Interrogatories 5 and 80.

However, such Responses do not address--t5eJpartlcular systemd 'affected by e

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. 4 specific alleged deficiencie,s,,the impact of such alleged deficiencies on plant operation or Whether such alleged

• deficiencies remain uncorrected.

10.

Supplemental Response T5 Interrol gatories.lOS, 109,-llO,.and 112 In these Interrogatories, Applicants request that Intervenor provide specific inst]anceswhere" company pressure" was allegedly brought a d by whom it was bro 6ght (Interrogatory 108), the identity-oE each individual on Whom such alleged pressure -was broug'ht t'o bear (Interrogatory 109), the manner in which such alleged pressure was brought,(Interrogatory 1110), and every

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ef-instance of i.gadequa,te construction whigh resulted from' such alleged " company pressure" -(InEerrogatory 112).

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Applicants hot'e that, in Palmetto Alliance's April 28, 1982 Responses to these Interrogatorie,s,, it stated that complete

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answers must await responses to its discovery reque'sts.

Now, after the discovery material.has been made available, Intervenor references in its Supplemental Responses its answer to Interrogato' ries 5 ind 80, and relates an instance involving William :R. McAfee-during which his sdpervisor

~~PS-allegedly verified' th_e ~ specific 1ength of an anchor bolt

~2 within the reactor building.

Sighificantly, Intervenor's

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incluy e any ~ specific instances Where T

Response does not

" company pressure" was brought to require an individual to perform any activi.ty 2nic 'c6uld have an adverse' impact on 4

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4 plant safety.

Rather, Intervenor's Response vaguely states that Intervenor is aware of " pressures and retaliation against.f. hose [ employees] complaining."

Response to Interrogatory 80 at p.

13.

Such' cf.ener'alized assertions fall far short of the Applicants' 7.regyest that Intervenor specify each instance of company pressure, each individual on whom such pressure,was brought to bear, the manner in

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-which such pressure -was brought,, and 'the ef fect of such

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alleged pressure on plant construction.

11.

-Supplemental Response To Interro-gatories 116, 119 and 420 In these Interr6gatories, Appl.Icants request that

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Intervenor sta'te thsCmanner in w'hiche pproval was given for

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alleged " faulty workmanship" (Interrogatory 116), the 2

identity of the individual giving such approval (Inter-rogatory 119), and what approval wat given fo'r each particular task alleged (Interrogatory 120).

With regard to Applicants' request in Interr'ojatory-116' that Intervenor provide-the manner in which -approhal was to be-given for alleged " faulty workmanship", Intervenor simply responded

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"by OC in,spectors"., Significantly,. Interrogatory 116 does

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not request by whom siich appiroval will be given, but rather

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how such approval will be giien. 'Accordjngly,Mn"tervenor was unresponsive to this Interrog5Itory.

With.negard' to Applicants' request for the identity of individuals giving

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, 4 such approval and the specification of what approval was

.s given for a particular task, Intervenor references its Responses to Interrogatories 5 and 80.

However, neither of these responses address the request of Applicants regarding these issues.

Accordingly, knterhengy's responses to Interrogatories 119 and 120 are,also vague, evasive and unresponsive.

1-Conclusion __

Applicants submit that the Interrogatory answers en Contention 6 that are_discussqa'h'erein are vague, evasive, incomplete, and/or generhlly unresponsive.

Moreover, Responses,to several InEdyrogatories have

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been omitted without, explanatioq.

Applicants accordingly~believe 'th'at Palmetto 'All'iance has failed

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to comply with' its discovery obbigation as to these f

Responses, and urge the Board to compel ~respo.nsive answers.~'

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II.

RESPONSES TO INTERROGATORIES-ON CONTENTION 7 On April 19, 1982, Applicants filed a series of Interrogatories on Contenti-on 7 which sought baste i-nfermation as to "the. definition' of material terms' in the contentions, thb _ nature _and effect of the alleged

~.

)

" consistent failure to adhere to 2 operating and 3

administrative procedures,"'and how these occurrences future safe Dperation of Catawbaf relate to the O

e me

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4 whether Palme.tto. Alliance contends that t.he-requirements governing these terms are set forth in NRC regulations and, if so,,

whether it contends that

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Applicants have not satisfied thos!e require'ments; and the bases and sources for all of t'/he.toregoing information.. General reque5~ts for documents were also included, along with.a series of* general

" Interrogatories.

Palmetto Alliance's Supplemental Responses are m :-

predominantly characterized by the same. vagueness,.--

evasiveness and general unresponsiv_eness found in J

Palmetto Alliance's original respo Ees.

The specific

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deficiencies' rs diMtrssed below$.

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However, befor,e beginning a specific discussion of Responses Applicants consider deficient, Applicants would note that Palmetto Alliance's statement (Supplemental Responses at p.

24) that " Applicants have otherwise refused to compile information or otherwise respond' to specific questions beyond identifying-documents" substantially misrepresents the discovery effort which Applicants have

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undertake,n in respgnse' to PaImetto Alliance's

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Interrogatories.

As the Board is~ aware, Applicants have 1~

filed full and responsive answers ( id ent).fying *'and ~ '

providing documents, where~ appropriate) to al1 mf those i

l Interrogatories except those to which Applicant-s have

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successfully, objected.

The record simpl,y does not support Palmetto Alliance's suggestion that Applicants have fail'ed to fulfi-ll their discovery obligation.

A.

Failure To Specify Regulatory 7

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Requirements (Interrogatories.

24, 25, 26, 27, 35, 36, 37, '3 8 )

Contention 7 atserts that Applicants' " consistent to comply with required' procedures has led it to failure" violate " applicable ~NRC regulations"'(Interrogatory 24; see Supplementary Responses at p.

24) i. the past and to

" remain in noncompliance with applicable regulations" (Interrogatory 26; see Supplemental _ Responses at p. 29).

Applicants asked a number of Interrogatories which sought

~.

Intervehor specify which N.RC", regulations have to have a

j allegedly not been, complied with.

Despite the allegations

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set forth in its contention, Palmetto Alliance fails to name a s, ingle specific,N,RC requi[em'ent which has allegedly been violated.

Rather, it s ta te s-that :

Palmetto Alliance contends that such ' consistent failure' by Applicants represents noncompliance with NRC regulations, most critically 10 CFR 50.57(a)(3).

The additional NRC regulations not c'omplied with [and] the activities representing such noncompriance are-identified, in part, -by the.NRC Staff,in~the reportf and documents se,t,

- - forth above in responserto interrogatory 11."

(Interrogatory 25; see Suppl ^emental Responses at P. 29).

An examination of the d6~cuments rsferenced in the f

Supplemental Response-to Interrogatory 11 reveals that no specific regulatory vtolakiods ap' pear to be liited.in

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A either NUREG,0834 or the 1982 SALP Board Report.

Compounding the matter is Palmetto Alliance's vague reference in its Supplementa1 Response on No. 25, which states that:

[t]he additional NRC regulat$ons.not complied with are identified, in part, by the NRC Staff in the reports and documents set forth above in response to interrogatory 11. (emphasis added)

"Such a partial reference to a reference which itself is incomplete should not be condoned by,this Board.

failure t'.specify which (.if any)

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o' In addition to its NRC regulations Applicants have violated, Palmetto Alliance

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also refuse's to indicate which NRC-regulations provide for operating and admini4trative procedu'ks'which have r

allegedly not been,followed (Interrogatories 35, 36 and 37; see Supplemental Responses at pp. 30-31); or note any instances of failure to adhere to' procedural requirements contained in any Commission-regulations (Interrogatory 38; see Supplemental Responses at p.' il); or name any,

activities or " failures" which do'not. meet applicable regulations and/or have caused Applicants to remain in noncompli,ance with, applicable regolations (Interroga_ tories

'"~ -

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25 and 27; see Supplemental Responses at'p. 29).

Although purported incidents of regulatory noncompliance' are~ ' central

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to Contention 7, Palmetto Alliance merely states in j

response to each of these inquiries that the -answers

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A requested are "within the knowledge of Applicants."

Applicants submit that if Palmetto Alliance wishes to maintaic.that Applicants have been and continue to be in violation of NRC regulations, it Es in'cumbent upon the Intervenor to state'which regulations have not been complied with.

B.

Responses Which Are Vague, Evasive and Unresponsive To Applicants' _.

Interrogatories-

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Two topics are central to Contention 7: (1) Palmetto Alliance's allegation of'Applicait's,',,"consis. ten,t failure to adhere to required Commission operating and administrative

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procedures provided for in Commission-rules and

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regulations;"*and DZ7.the relaEi nshs) of-Appliants' " track

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record" at Oconee and McGuire to'the ability to operate Catawba safely. 'Each topic is discussed below.

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1.

Operating And Administrative Procedures

(~ Interrogatories 1, 2,~6, 8,

12, f 4 ', 16,~46)

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Applicants asked a number o,f, Interrogatories which

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sought specific information about-these " operating'and administrative procedures." ~For example, Interrogatories 1,

12 and 46 asked-which of_these + procedures Palmetto

- M-A-1-liance ' contends are; the subject f this contentiori.

Such j

information is key to both In'tervenor's case and,

i Applicants' case on this contention.

In response to, these Interrogatories,Intervenor fails to list a single specific procedure, stating. ingtead'that the operating and _.

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. 4 administrative procedures identified by the NRC in NUREG-are the subject of Contentio~n' 7 I (See Supplemental.

08344 Response,s at pp. 24, 27 and 32).

As to the operating procedures in question,-Intervenorj als'o remarks that

"[r]eference to [NUREG-0834]'or re,spogse by NRC Staff would

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likely particularize the operating procedures which the NRC l

intended." (Supplemen,tal Respons_es at p. 24).

As to the

. administrative procedures, palme,tto 111iance suggests that

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a "more particularized description

. may be available from the NRC, Staff.'" (Supplements Responses at,,p._27).,

l Applicants submit that such-evasive and unresponsive answers to basic Interrogatories' '-$i e.,

as suggesting that referench to NMKEG-0834 or responses -by the Staff

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"would likely" produce the speci'fic descriptions sought --

are unacceptable.'

Surelp, if Palmetto Alliance has read NUREG-0834 it should be able to state with assurance whether the procedur'es in qu_estion'are contained therein; f

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and if it has exercised its "righy of first-discovery" from the NRC-Staff, Palmetto Alliance hhould now know whether the Staff had particular procedures.in mind'.5

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- -pt. _

4_ EBC Li*censee Assessments _(Systematic Assessment'of Licensee Performance Review Group), August, 1981.

5 In its April 20, 1982 instrrog tories dealing "with Contention 7, Palmetto Alliance asked'(in No. 26),

Applicants to describe in detail the "below _avera' e" g

rating for Catawba. reflected in NUREG-0834.

In their December 31, 1982 Responses to-this Interrogatory, Applicants indicated th'at;such a question.wa;s.more (footnote. continued)

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4 As a matter of fact, an examination of NUREG-0834 reveals that no specific operating and administrative procedures were identified by the Staff in,its discussion of the various Duke Power Company jplan'ts.

" Palmetto Alliance's Supplemental Responses 'on,)his matter thus leave Applicants with no more information on the " procedures" l

with which the Interv,enor.is conberned than was provided in Palmetto Alliance's original ' Res.ponses, in which it claimed to " lack sufficient knowledge" to answer.

Given the fact

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that Applicants' alleged'"consisi(nt, failure" t.o adhere,to, these procedures is the crux of {ontention 7, it seems only reasonable'that Palmstto Alliance'bI required either to_

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name those 'reyulatorFy -procedur&s'whib'h it-believes

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Applicants have violated or to admit that it has no

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specific procedures in mind.

Other Interrogatory answers cohcerning t'nese i

" operating and administrative procedures" are similarly

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unresponsive, reflecting either a[ continuing disregard by Palmetto Alliance of its obgsgation tp provide-fundamental

]

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(footnote continued from previous page)

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appropriately addressed to ths NRC Staff, which !

performed the SALP. evaluation and wrote the NUREG.

Applicants further_not_e that the NRC Staff provided the

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in iEs" information sought in Interrogatory 2)lliance

" Supplemental Responses to Palmetto A Interrogatories and 9roduction: Requests on-Contentions 6 and 7,"

filed February 177 1983 (see pp. 10-13).

There is, therefore, no reason for Palmetto Alliance to provide such ev.asivp Answers in response to these Interrogatories.

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re

. 4 information or a pervasive lack of supporting information on this key aspect of its contention.

In response, for

• example, to inquiries as to who developed gnd. implemented

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j the administrative procedures in ciuestion (' Interrogatories 15 and 16; see Supp"lemental despodses at p.

28); when the operating procedures were developed and implemented see, Supplemental Responses at p.

25); and (Interrogatory 8; e

-where the operating procedures i.n' question are to be found

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(Interrogatory 6; see Supplemental Responses at p.

25);

Palmetto Alliance evasively repl[(s,.that such i,0fo.rmation,

i is "within the knowledge of Appl-icant's. "

That the informatiori may or miy not.be witli.i5 Applicants' knowledge

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is irrelevant.' - AppLloants wisii to kEow 'what Palmetto Alliance knows about these procedures, so that Applicants

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c1.n prepare their case.

t Similarly, when asked to speci'fy what ac'tivities these operating and administrative procedures are intended to govern, Palmetto Alliance replie'sionly that such an inquiry is "more appropriately directed to NRC Staff,"-and/or that this information is within Applicants' knowledge.

(Interrogatories 2,and 14; sue Supplemental Response,s at

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pp. 24 and 27).

Applicants again submit that this response is grossly inadequate.~

If Palmetto Allipnce p1'an's tu support its allegations of Applicants' " consistent ailure to adhere to required Commission operating and-

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4 b

4 administrative procedures," then surely it must have some knowledge of the. actual activities to which these a

procedures' apply.

If not, how can it gauge the importance.

of these procedures to public healith a'nd safety?

How can

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it verify the occurrence of violaf,.iong of these procedures absent some knowledge the activities which the procedures

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govern?

Given such a, situation,:the Board should order

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--full and complete di-sclosure.'

2.

Relationship Of Applicants' " Track Record" To Its Performance At Catawba * (I'nterrogatories 7

10, 44, 45, 48,'

49, 50, 52) -'

i Another facet of Contention-7 which is central to Palmetto Al'liance's 6ase is how 'Ida.irvenor ~ proposes to tie Applicants' - b* rack.rfaoord" at OconeeCand McGuire to its ability to operate Catawba safely.

Here again, Palmetto

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Alliance's Supplemental, Responses are incomplete and i

evasive, and provide virtually no-information' as to the

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bases for Contention 7.

For example, in answer to i.

l Interrogatory 10 (see Supplement'al Responses at.p. 25),

which seeks to establish the-relaO.on_ ship between i

Applicants' alleged failure to adhere to operating i

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procedure,s at Oconee and their abil.ity to operate Catawba safely in the future,T Palmelto Alliance's Supplemental l

Response fails to include a lingl specific example mf the

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i defects alleged to exist in Applicants' trackireco2d,"

or any explanation of Applicant

" repetitive and chronic" O'

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.g

a t

5 non-compliance with NRC regulatory procedures and how it has affected public health and safety.

Intervenor also '

fails tg. explain its implied asse'rtion that.the NRC's I

inspection of Applicants' facilitiies Es inadequate.

Other Interrogatories also sdek Jn explanation of how Palmetto Alliance proposes to relate the findings of NUREG-0834 as to Ocon,ee to conditions at Catawba.

Here

.again, Palmetto Alliance's Suppl,emental Interrogatory

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Responses are clearly deficient.. For example, when asked l

its interpretation ~ of the phrase [" weaknesses. in. personnel,

adherence to operating and administrative procedures" used

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in the 1981 SALP Rep 0rt, Palmetto Akliance merely refers to its original-k' April _.28, 1982) responie to-this question, which stated: "[m]eaning intende'd by author."

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(Interrogatory 44; s5e Supplemental Responses at p. 32).

i l

Similarly, when asked to specify the particul'ar

" weaknesses" alleg.edly present at. Catawba, Intervenor again refers to its April 28,.1982_Res'p@nses,wherein.it, replied, in direct contrast to the langugage o,f Contention 7,

" term refers to Oconee." (Interrogatory 45; see Supplemental

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j Responses,at p.

3 2 ). ---

t Applicants submit, firs ~t',

that this Supplemental Response deliberately avoid's answ ring an Interro'gatory

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clearly designed to elicit the' meaning of the baeakn' esses" alleged to'have been found,.

In addition, Palme.tto Alliance j

s e

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is surely obligated in its Supplemental Response on this l

Interrogatory to, clarify the confusion created by its 1

origina), Response as to 'whether these " weaknesses" are or, are not meant to apply -to Catawb'a j Nor'does Palmetto Alliance specijy which " personnel" l

have allegedly failed to comply with the " operating and administrative proced,ures" in question, stating instead

.that:

i'[t]he term ! personnel' was Employed by NRC Staff.

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Palmetto employs the term as intend,ed by NRC Staff."

s l

(Interrogato.ry 48: 'see S6pplemenj{1,., Responses a.t p. 33).

Equally evasive answers appear in response to Interrogatories which attempted'th_" pinpoint. the actual y

" failures to folloid ~ procedures" ~re.fedred to in Contention

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7.

Wnen asked to specify the "dailures" and " procedures"

i. i.

included, Palmetto Allia~nce replies'that it intends to rely

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1 upon those " failures" and " procedures" which'the NRC Staff had in mind. (Interr'ogatories 49,.50 and 52; see Supplemental Responses at p.,_33).; Although th.e.NRC Staff t

did use-these terms, Palmetto All'iance apparently plans to rely upon these alleged " failures".to follow (unspecified)

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" procedures," to attempt to prove its contention.

Since it w

has now had the benefit of discovery, Intervenor should*

either provide responsive answers to these, questions or

-s admit that it does not -know the answers.

C.

Failure To Respond To InterrogatoJ es i

(Interrogatories 17, 28, 54)

Palmetto Alliance has faile*1~to respond to Interrogatories 17, 28 and 54 in derogation of 10 CFR

{2.740b(b).

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Conclusion

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Applicants sub'mit that the Ifte,rrogatory answers o.n t

Contention 7 that are discussed -herein are vague, evasive, incomplete, and/or g'nerally unre'sponsive. ~ Moreover,

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e Responses to 'severd'Interogat6 ries nave been omitted

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t without explanation.

Applicants accordingly believe that Palmetto Alliance ha~s fa'iled to com' ply with its discovery obligations as to these Responses,'and urge t'he Board to compel responsive answers. -

III.

RESPONSES TO INTERROGA-TORIES ON_ CONTENTION 8 On August 16, 1992, Applicants served on Palmetto Alliance, Interrogatories and requests for documents relating to Contentioh 8.

These Interrogatories were basic in nature, requesting only'tNat Palmetto,Alliahc5 specify

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its concerns and identi-fy the basis for those concehns.

More specifically, the Interrogatories were designed to

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.s, enable Applicants to learn the definitions ascribed by Palmetto Alliance to material terms in the contention su'ch as " hands-on operating experience,"

s uf ficient" experience and "similar lack of ex~perience;"Ithe activities which the Intervenor contends constitute " sufficient hands-on operating experience;" whetEer P,almetto Alliance contends

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that Applicants do nqt meet appl'icable NRC requirements

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-* governing operator training; whether it contends such NRC regirements are inadequate; and whether it contends that someotherstandardshouldbeapphied.. Applicants'

'nforma. tion on the dimensions Interrogatories also sought i

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such a'-whether its allegations and scope of Contention 8, e

apply to rea'ctor operators, senior,dp.erators, shift supervisors, and/or plant supervisors.

Finally, Applicants sought the legal and technical bases for the Interrogatory Responses provided.

In its Supplemental Responses on Contention 8, Intervenor fails to provide answehs to the 'most fu.ndamental inquiries, such as why Applreants. allegedly do not meet NRC 1

requir'ements; the particular regulatory provisions

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allegedly violated,(Interven'or relies only upon $50.57, the broad public health and safety regulation); what experience would constitute " sufficient hands-on opArating l

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, experience;" instances in which Applicants have failed to a

provide " primary management responsibilities;" or the precise bases for its Supplemental Re ponses.6 Specific Interrogatory Responses, gropped by category of deficiency as in the preceding itwo tections, are set forth below.

A.

Failure To-Specify-Bases For Responses (Interrogatories 6, 13, 19, 30, 46, 52, 59,*21 and 84)

In answer to Interrogatory 4, which seeks the bases

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for previous. Responses, Palmett6,,kl.liance refers to (1). its responsestoGeneralInterrogator1}e,s (see Supplemental _

Responses at p. 36),*and (2) its' hesponse to Interrogat.ory

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2.

Thereafter,- inai~nswer to all suds.,equent' Interrogatories '

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on Contention 8 which ask for the bases for previous Responses, Palmetto Alliance merely refers to its Response to Interrogatory 6 (See Interroga~t6ry Responses 13, 19, 30, 46, 52, 59, 71 and 84).

An_ examination of the content of l

both Intervenor's answer to the 'G'eneral~ Interrogat_ories and

[

I its answer to Interrogatory-2 reveals that this mode of l

responding is inappropriate and inadequate.

Specifically, 1

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6 Palmetto Alliance's suggestion on p.'36 of its l

Supplemental Responses that Applicants provided no j

information on Contention 8 until compelled'to do so by l

the Board is inaccurate.

Answgrs to Palmetto Alliance's September 3, 1982 Interrogatories on Contention 8 were i

filed by Applicants on September 22, 1982; supplemental answers were provided on March-28, 1983.

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l 4 the documents referenced in the General Interrogatory

• M Response consist., inter alia, of the Report of the President's Commission on the accident at Ihree Mile

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Island, October 1979; NUREG/CR 1270 VII, APP.7; and NUREG-0737, the clarification of the TMi Aq$ ion. Plan requirements.

Such a general re,ference to documents encompassing thousands of pages fms a method of responding to specific requests for documents is inappropriate.

Palmetto Alliance's reference.to its answer to Interrogatory 2 is similarly unf5,luminating.

In this.

answer Intervenor merely refers -to ~10 CFR $55.4's

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definitions of "oper*ator" and "cohtrols," and lists the. 27

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" control manipulati(ns" and "pla'nt, s/olutions" set forth in

the ANSI 1981 standard whose actual performance Palmetto

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Alliance believe constitutes " hands-on operating experience."

No effort is made i'n'the subsequent Interrogatory Responses to indicate which aspect of 55.4 and/or the ANSI standard Palmetto' Alliance'is-rely _ing upon in its responses.

Such defgcienc'y warrants correction.

B.

Failure to Specify Regulatory Requirements (Interrogatories 4,

,10, 16, 17, 32, 33, 38 ahd 67)

Applicants, in a'n attempt to ascertain the standard bu

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which Intervenor's contention can be measured,"have' attempted to discover those NRC requirements-which Palmetto Alliance considers to be controlling.

That such inquiry is

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g o-m

..s proper is be\\ied by the fact that Palmetto Alliance is fully cognizant of the regulations that pertain to the operator qualification issue.

Indeed this. matter was thoroughly briefed not 'only by Applicant arid Staff but also by Palmetto Alliance. See Palmetto Alliance's Response of March 31, 1982.

Furthermoriii through discovery Applicants made available to Palmetto Allia" nee a copy of,the NRC's

' Standard Review PlaR; and, in their August 3, 1982 Response to general Interrogatories, referenc,ed NUREG/CR 1270 and

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the TMI Action Plan (NUREG-0737)~e,-Despite its knowledge of the controlling regulations and Ita. access to NRC information~bearingonthesubjechPalmettoAlliancehas simply relie'd upon M ~CFR 50.57.

tN[ der f.he circumstances, '

a mere referen.ce to the generic public health and safety regulation cannot be permitted to suffice.

This position applies also to Interrogatories 4 ', '1 0,. 1 6, _ 3 2, 33, 38 and 67.

Applicants have asked Palmetto Alllance is Interroiatory 17 to explain 3hy it contends Applicants fail 3

to mee't NRC requirements.

In response, Palmetto Alliance simply states that."lhek of sufficient actual experience impunes the reasonab1A assurknce of safe' operation."

Such an answer should not k>e _ viewed as respo:',sive ; rather, Palmetto Alliance shoul'd explain how the lack'of sufficient actual experience impugns the rea,'sonable assurance of safe

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operation.

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4 C.

Resoonses Which Are, Vague, Evasive And Unresponsive To Applicants' Interrogatories (Interrogatories 8, 17, 50, 51, 68, 72, 82 and 83) 4 Applicants maintai,n that various-Responses of Palmetto Alliance are inadequate.

Each is. addressed below.

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1.

' Supplemental Response To Interrogatory 8 This Interrogatory, whichs[ervesasthefundamental

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inquiry with respect to Contentio B, seeks to ascertain Palmetto Alliance's' view as to what -constitutes " sufficient h' ands-on operating. experience.".in response, Palmetto -

Alliance simply states *. hat it "_is not prepared to establish at this time a level of. sufficient hands-on -

operating experience;".

Applicants wish.to know the precise _

level of experience Palmetto All-lance' considers to be adequate.

fiithou~t' knowledge of.*such level Applicants are greatly hampered in putting forth,a, case; rather Applicants

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Clearl'y find themselves addressing a moving target.

Palmetto Alliance, having had the. full benefit _of discovery, should be expected at:this late date to share

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with the Board and parties its position with respect to

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what it views to be adequate;handp-on operating experience.

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2.

Supplemen.tal Response To Interrogatory 51 Applicants have sought _ identification of each instance

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wherein they have failed'to provi e " primary management responsibilities."

Palm ~etto Alliance, in maintaining that Applicants have so fa led, simply) states: "Yes,'NUREG-0737 e

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establishes s,uch requirement,s." ( Supp,lem,en,t_al Responses at

p. 42). Such a general reference to NUREG-0737 cannot be' viewed as supplying information of. each instance in which Applicants have failed "to provide ! primary management responsibility.

Accordingly, a rEspoasive answer is

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warranted.

Supplemental Respon' e To Interrogatory 68,

3.

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-e Interrogatory 68 requests that Palmetto Alliance explain why the requirement of sufficient hands-on

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operating experience has not been, met by various individuals.

After ' listing the amoynt of experience of various people in its Responses, hobever, Palmetto Alliance simply state ls t'dat euch experience.iY." insufficient."

(Supplemental Respo,nses at p.

44). Intervenor's total fdilure to provide any specificity whatsoever necessitates

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that the,B_oard compel an, adequate 1'esponse._

4.

Supplemental Response To Interrogatory 72 In this Interrogatory Applicants h5ve' asked for the i

names of Senior Reactor Operators-and-Reactor Operators whose resumes Intervenor has examined.

In its Response,

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i Palmetto Alliance refsrs Applicants to its November 3, 1982

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supplementary response, which. states tha't "no names of operators are set out in_this copy of ths FSAR)'

In'

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response to Palmetto A111ance's Interrogatory 1-6 on this contention Applicants indic;ated ih their September 22, 1982 e

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.A response that such names would be made available.

Indeed, the names have been available at Applicants' offices sin'ce October-4, 1982.

Accordingly, Applicants believe that a

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responsive answer. shou 1~d be.forthdoming.

6.

Supplemental Response to Interrogatory 82 In response to this InYsrrogatory's inquiry into the definition of " experience," Palm'etto Alliance refers

• Applicants to its rssponse to Interrogatory 8.

For the reasons set forth in the discuss-ion,of Intervenor's f

Interrogatory 8 response, Applicapts, maintain a-further.

response should be ordered by this Joard.

D.

Failure to Respond (Interrogatory 50)

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An examinaEiod-of Palmetto Alli'Ence's Responses reveals that i.t has failed to respond to Interrogatory 50 in contradiction of 10 CFR $2.740b(b).

Conclusion..

Applicants submit that -the Interrogatory answers on Contention 8 that are discussed herein are vague, evasive, incomplbt'e, and/or generally unresponsive.

Moreover, a Response to one Interrogatory has been omitted without

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explanation.

Applicahts ace'5rdingly believe that Palmetto Alliance has failed to compl? with its d'iscovery obligation

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as to these Responses,' a_nd ulge the Boazd to compel,

responsive answers.

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F*

I e 5 IV. RESPONSES TO INTERROGATORIES ON CONTENTION 16 On August 9, 1982, Applicants served on Palmetto Alliance discovery requests relating to Coritention 16, which sought, as did Applicants' interrogatories on other contentions, speci5ic inform $ tion'to.glarify the concerns underlying this contention,-ti.e,, why does Palmetto Alliance contend that, Oconee.and*_.McGuire spent fuel cannot

• be safely stored at Catawba?).

.Iri particular, these Interrogatories sought Palmetto Alliance's definitions of key terms-(i e., what is encompaEsse.d..by." storage," " safe storage," and "have not demonstrate,d"); why the Intervenor contends tiiat Applica.nts have not demonstrated their

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ability to stdre~s M t. fuel safely; Whether'it believes that NRC requirements have not been met, and/or that such standards are inadequate; and if Palmetto Alliance believes that other standards should be me't.'

Applicants submit that -Intervenor's Supplemental Responses fail to specify th.e el'eIpents of what' it considers f

a " sa f e" spent fuel storage grocess,.or the details of variou's concerns stated in the contention.

Nor do its

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answers provide adequately.soecific reference to the, r

documents in which the bases-for its Supplemental Responses

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are set forth.

These deficient Responsep are 31scussed s

below.

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4 A.

Failure To Specify, Bases For Re,s,p,onses (Interrogatories 7, 16, 24, 18, 37 and 48)

The Interrogatories pertaining to Contention 16 sought informa ion relative to why"Palme to'Allia ce believes that the storage of Oconee and McGuire. spent fuel at the Catawba spent' fuel pool will render the CataUba facility unsafe.

Afteraseriesofquestionsrega[rdingoneaspectofthis

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inquiry, Applicants sought the bases. supporting Palmetto Alliance's response' to such questions.

In each instance P'almetto -Alliance refers _to its R$sp'onse' to General Interrogatories.

Palmetto Alliance's response to General

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Interrogatories is as_follows:

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See response of, August 30 c 1 9 8 2...

In addition Palmetto Allia~nce has obtained The NPC's safety evaluati' n report related to the' Catawba Station '

o operation, NUREG 0954 which includes an evaluation o~f-the fuel storage. facility; Applicants April 2, 1982, letter from W.L.

Parker to Elinor Adensam of the NRC Staff transmitting additional information relat'in'g to the storage of non-Catawba fue-1 at Catawba; September 1976 Duke analysis of the ' expanded Catawba heat load on the spent fuel pool;' and ESAR Part 9.l.2 ' Spent Fuel Storage,' which in-part: form the bases for Palmetto's position on this contention.

Applicants take issue'with Intervenor's reference that these documents "in part form the' bases for Pafm'etto's position on this contention.-l" Applicants have asked for i

the bases, not the partial bases ind thus maintain.that

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Intervenor should be compelled to-provide a complete.

response.

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r 4 Applicants would note that Palmetto Alliance's August

. g 30, 1982 response conrists of references to 29 documents *,

which for the most part appear to be newspqper and magazine

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articles, and intervenor papers.

iSuch'-general reference to specific inquiry shIould not be pefmitjed to suffice.

B.

Responses Which Are-Vague, Evasive And Unresponsive To Applicants', Interrogatories (Interrogatories 5, 6,

11, J 8, 22, 23, 40, 41, 44 and 46)

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Palmetto Alliance has failed to set forth with specificity the precise n'ature o'[~,i.,ts s. pent.fue1 p, pol contention, other than to argue that it remains of the view that the Ca'tawba spedt fuel pool'cS3not safely accommodgte

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Oconee and McGuire spent fuel.~ Speeffic Interrogatories

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are addressed below.

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1.

Supplemehtal' Response To Interrogatory 5 In Interrogatory 5 Applica.st's tought to ' determine those factors considered necessary to assure safe storage.

Palmetto Alliance's response _was' himply to' state that it was Applicants' burden to prove that _the spent-fuel pool could accommodate the spent fuel at Oconee and McGuire, making ge,neral reference to to CFR.550.57.

Such a reply is

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simply not responsive.

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2.

Supplemental Response To Interrogatory 6 i

When asked to provide the details of its concerns ih Interrogatories 13, 18, 23, j40, 41, 44 and.46, Palmetto

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Alliance refers Applicants to its ;RespBnse *to Interrogatory 1

4, which Applicants note is nonexistqpt.

Applicants assume l

that Palmetto Alliance meant to, refer Applicants to its Response to Interroggtory.6.. A' examination of Palmetto j

Alliance's response to Interrogatory 6 does alert

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Applicants to Palmetto Alliance's, general concern over

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expanded heat load', loss of onsf.te/.offsite power, cask dro.p accidents, fuel handling accidents,,and airplane crashes.7 However, as:to the specifics under4ying such concerns (which specifIcM Appli. cants have'sotight'in the above

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referenced Interrogatories), absolutely no detail whatsoever is provided.

Clearly, at this advanced stage of reque_s't for specif'ic information the proceeding Applicants' should result in more than a mere-recital or laundry list of concerns.

Applicants' position takes on added.

significance. when one realizes that the specific analysis l

of the' spent fuel pool including, for example heat loading, is set fqrth in the FSAR and has been available to, the 5

Intervenor from the oEtset oE thip proceeding.

Further, s

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7 Characteristic of Palmetto Alliance, matters rai. sed in this response have teen specifically precluded by this Board and yet Palmetto Alliance continues to raise the matter. See, i.e.,

the Boards December 1, -1982 Order at pp. 20-21, specifically ex'cluding consideration of

" aircraft crashes into the spent fuel pool." m i

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, 4 this information was specifically identified in Applicants' August 9, 1982 Response to Palmetto Alliance Interrogatories on Contention 16.

4 3.

Supplemental Response:To Interrogatory 22

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In Interrogatory 22, Applicahts,again have sought to determine specifically each-element of the storage process which Palmetto Alliance main,tains,is necessary for the

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. protection of the public health,and safety.

It is only by

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establishing such a standard thqt Applicants will be able

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to determine _, first, the validiyf'of,such standard, and_

second, how its spent fuel pool -analysis compares to such standard.

However, rather than pto~ iding the necessary

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y information Pilmetto Alliance sfmplplasserts that

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" Applicants cannot safely stor'e' irradiated fuel assemblies."

Su'ch a'res'ponse shoul'd not be permitted to stand.

Conclusion Applicants submit that the'I}nterrogatory. answers on Contention 16 that are discussed here,in are vague, evasive, incomplete, and/or generally unresponsive.

Applicants accordingly believe that Pal-metto-Alliance has failed to comply with its disco ~very obligation as to these Responses, and urge the Board to"coripe~1 responsive answe n.*

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A V.

RESPONSES TO INTERROGATORIES ON CONTENTION 44 Palmetto Alliance has not responded to Applicants' Interrogatories co'ncerning Contention 44.

Rather,, it refers to a Response filed;by 'a different party (CESG) to

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Interrogato' ries from the-N,RC Staff and asserts that the answers to Applicants' Interrogatories "are fully provided in answers to NRC Staff Interrogatories provided by CESG."

Such behavior by Pa,lmetTo Alliance is simply

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irresponsible.

Leaving aside the fact that Applicants are entitled either t' o a resp,a.nse. to each o.f. their.

Interrogatories or to an_ objection,8 Palmetto Alliance has chosen to disregard a sp~eci.{ic Licehsing Board order applibable to such insta5cesu To -explain, the action taken by Palmetto Alliance is identical to an action taken by it with respect to Interrogatories filed by the NRC Staff.

In that instance, P'almetto Alliance had Alleged that answers i

to the Staff s Inter _rogatories were contained in its answers to Applicants' Iht;errogatories The Staff moved to r

-compel responses and_the Board granted such motion, ordering that Palmetto Alliance either answer or object to

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the specific Interrogatory pr, if it chose to rely on prior responses, to demonstrate -that the Interrogatories were in fact substantiveli identi al.

(T3 650-653).-

In a 8

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See December 22 Order-at p.

10.

. Applicants recognize that where Interrogatories overlap a. reference to other responsesEa'be(sufficient.

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' subsequent order the Board noted that a party "is entitled g. _-

to direct answers to each and every interrogatory posed."'

See Dec, ember 22 Order at p.

10.

4 Under this ruling Palmetto Alliance should be required to answer the Inter'rogatories filed b,y Applicants.

Should l

l Palmetto Alliance assert that answers to Staff Interrogatories will, suffice, then it is incumbent on Palmetto Alliance to demonstrate, thal the information has in fact been provided.

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i 70'. :EIE' UNITED STATES OF AMERICK NUCLEAR REGULATORY COMMI-qpION -

83 t'AY -2 R11 :00 BEFORE THE ATOMIC SAPETY AND LICENSING BOARD In the Matter of

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DUKE POWER COMPANY, et al.

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Docket Nos. 50-413

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50-414 (Catawba Nuclear Station.

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Units 1 and 2)

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CERTIFICATE OF SERVICE

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I hereby certify that copies of Applicants' Motion To Compel," " Atta,chment, " an.d "Certificati.on' By Counsel" in the,

above captioned matter have be~en served upon the followino by

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- deposit in the United States mail thii G9th day of Xpri'1, 1983.'

James L.

Kelley, Chairman Georg e-E. Johnson, Esq.

Offi e_pf_the Executive Legal Atomic Safety and Licensing c

Board Panel Director U.S.

Nuclear Regulitory.

U.S.~ Nuclear Regulatory Commission Co_mmission Washington, D.C.

20555 Washington, D.C.

20555 Dr.

A.

Dixon Callihan Albert 7. Carr, Jr.,

Esq.

Union Carbide Corporation Duke Power Company P.O.

Box Y P.O.

Box 33189 Oak Ridge, Tennessee-378,30 Charlotte, North Carolina 28242 I

Dr. Richard F.

Foster Assistant Attorney; General

~ Richard P.

Wilson, Esq.

P.O.

Box 4263 Sunriver, Otegon 97702 Etate of South Carolina 3.0.

Box 11549 Chairman Golumbia, ' South Carolina 29211 Atomic Safety and Licensing Board Panel

_ Robert Guild, Esq.

U.S.

Nuclear Regulatory Attorney-at-Law

_ Commission P.O.

Box 12097

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Washington, D.C.

20555 Charleston, South Carolina 29412 Chairman

~ ~ Palmetto Alliance Atomic Safety and Licensing -

2135 1/2 Devine Street Appeal Board ColumEia, South Carolina 29205 U.S.

Nuclear Regulatory Commission

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Washington, D.C.

20555 - ; _,

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Jesse L.

Riley Scott StuckY Doeketing,and-Service Section 854 Henley Place Charlotte, North Carolina 28207 U.S.

Nuclear Regulatory i

Commission Henry A.

Pres,ler Washington, D.C.

20555 Gharlotte-Mecklenburg Environmental Coalition 2

943 Henley Place Charlotte, North Carolin~a 28207

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Carole F.

Kagan, Attorney

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A'.omic Safety and Licensing

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Board Panel

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U.S.

Nuclear Regulatory Commission

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Washington, D.C.

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- MichaelMcGfrry,[/II J.

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_ r-4 UNITED STATES OF AMQRICA -

NUCLEAR REGULATORY COMMISSION

-2'A'd 23 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD c:.

-..,x-In the Matter of

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DUKE POWER COMPANY, et al. )

D'ockTt Nos. 50-314 4

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50-315 (Catawba Nuclear Station,

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CERTIFICATION BY COUNSEL I, q.MichaelMcGarry,counkel'YorApplicantsinthe above referenced proceeding, cert'i'fy"the following~:

1.

On the afternoon of April-20, 1983 I received-a copy of Palmetto Allian~ce,_}uppleme~ntary Responses.

2.

Since that., tlate, I and iny co'-counsel have devoted significant time and effort to preparing the i

instant Motion to Compe'l.

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3.

That due to the' length'and' nature of the Supple-mentary Response and its references to other pleadings, Applicants had -not finalited their l

positions until-Friday morning, April 29,-

1983.

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4.

Early Friday afterrioon (ipril 29, 1983) I

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personally telephoned Palmetto-Alliance's counsel, Mr. Robert Guild, a't both his Charleston and

- Columbia, South Car.olina; telephone numbers.

In both instances I was answered by a recording.

I left a message in both instances to the effect that Applicants were fi].ing a. Motion to Compel that day and desired.to discuss the, matter with Mr. Guild.

'Mr.

Guild *did not return,my telephone calls.

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On Friday,. April 29-l'983 ApNicants filed the instant. Motion to Compel pursuant to 10 CFR 2.740(f) which requires such to be filed "within ten (10) days after the date of the response" which in this instance was April 19, 1983. 10 CFR

$ 2. 740( f) does not provid's five days for service in calculating the fili.ng date.

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April 29, 1983 g.

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