ML20076L566

Motion to Compel West Valley Agricultural Protection Council,Inc to Answer Interrogatories.Interrogatories Relevant or Will Lead to Discovery of Admissible Evidence. Certificate of Svc Encl

ML20076L566
Person / Time
Site:	Palo Verde
Issue date:	07/15/1983
From:	Bischoff C ARIZONA PUBLIC SERVICE CO. (FORMERLY ARIZONA NUCLEAR, SNELL & WILMER
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20076L556	List: ML20076L553 ML20076L566
References
NUDOCS 8307190232
Download: ML20076L566 (13)

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d UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ARIZONA PUBLIC SERVICE ) Docket Nos. STN 50-529 COMPANY, et al. ) STN 50-530

)

(Palo Verde Nuclear )

Generating Station, )

Units 2 and 3) )

)

JOINT APPLICANTS' MOTION TO COMPEL WEST VALLEY AGRICULTURAL PROTECTION COUNCIL, INC. TO ANSWER INTERROGATORIES Pursuant to 10 CFR 62.740(f) and the schedule set forth in the Board's Order of June 14, 1983, Joint Appli-cants hereby move the Board for an Order compelling West Valley Agricultural Protection Council, Inc. (" West Valley")

to respond to certain interrogatories served on West Valley on April 27, 1983. The interrogatories to which Joint Ap-plicants seek responsive answers are set forth in Attachment A hereto and consist of Interrogatories 1, 3, 5-7, 21-26, 33 and 75 from Joint Applicants' Second Set of Non-Uniform In-terrogatories to West Valley Agricultural Protection Coun-cil, Inc. With the exception of Interrogatory No. 75, which is addressed at pages 8-9, infra, West Valley objects to each of the attached interrogatories on the grounds that they are burdensome and irrelevant. West Valley further argues in support of and as part of its objection that the NRC Staff 8307190232 830715 PDR ADOCK 05000529 0 PDR

• l has the burden of assessing the environmental effects asso-ciated with salt drift from PVNGS and that Joint Applicants through their interrogatories seek to shift that burden from the Staff to West Valley. See West Valley Agricultural Pro-tection Council, Inc.'s Response to Joint Applicants' Second Set of Interrogatories at 1 (June 1, 1983); West Valley Agricultural Protection Council, Inc. 's Motion for Protec-tive Order (June 29, 1983).1/

In response to West Valley's objection, each of the foregoing interrogatories is relevant to the issues to

, be litigated at the hearing or is reasonably calculated to lead to the discovery of admissible evidence. Furthermore, and contrary to West Valley's assertion, the problem is not that Joint Applicants are attempting through their inter-rogatories to shift responsibility to West Valley; the prob-lem is that West Valley is trying to avoid its responsibil-1/ West Valley also objected to Int 6rrogatories 4, 9-17,

, 27-32 and 59 on the same grounds. Joint Applicants are not seeking answers to these interrogatories at this time, how-

' ever, based on representations by counsel for West Valley to the effect that West Valley does not intend to call any of 4

West Valley's members as witnesses at the hearing, that 4

information sought by Joint Applicants concerning crops grown, acreage devoted to agriculture, specific yields or similar data relating to farming activities in the vicinity of PVNGS is contained in public records identified by West Valley in its Supplemental Answers to Interrogatories dated June 30, 1983, and that West Valley intends to rely solely upon such records. Should Joint Applicants subsequently learn that the foregoing representations are not supportable, specifically, the availability in public records of re-quested data on crops, acreage and yields in the relevant area, Joint Applicants may seek relief through a motion to compel.

l

ity as an intervenor in this contested proceeding by refusing to respond. The scope of discovery permitted in NRC pro-ceedings is defined by the Commission's regulations in per-tinent part as follows:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the exis-tence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.

10 CFR 2.740(b)(1). Testing the interrogatories by this standard, it is clear that Joint Applicants are entitled to the requested information.

Interrogatory 1 asks whether certain named indi-viduals are current directors of West Valley. Joint Appli-cants are entitled to an answer to this interrogatory be-cause the directors of West Valley niay have knowledge of discoverable matter. Interrogatory 3 seeks the identity and address of each member of West Valley. The basis for re-quiring an answe'r to Interrogatory 1 also applies to this interrogatory. It is not of particular concern that West Valley will not call its members to testify or that West 1

Valley intends to rely on public documents respecting crops l grown, yield data, etc. The fact is that not all of the in- l formation which is relevant or necessary for a proper deci-

! l

sion in this proceeding is contained in public documents.

See, e.g., discussion at pages 5-7, infra. In addition, Joint Applicants need to know which farmers in the area of PVNGS ere motbers of West Valley and which are not in order to proceed with acquiring relevant information. Information possessed by members of West Valley would be obtained through counsel for West Valley; information possessed by non-West Valley farmers may be obtained through direct com-munications with such farmers.

Interrogatory 5 asks for a description of those parcels of land owned by West Valley members which will be or may be affected by salt drift deposition; Interrogatory 6 asks West Valley to state the amount of drift per acre that will be deposited upon such parcels; and Interrogatory 7 t

asks for a description of the methods by which such deposi-l tion figures were calculated. Each of these interrogatories is relevant to Issue No. 4 stipulated to by the parties,E i

which reads as follows: -

What is the quantity of salt deposited per acre as a function of time, distance i and direction from the PVNGS (includes '

consideration of the predictability of the analytical model used)?

This issue relates to the dispersion and deposition of salt drift from PVNGS, a matter which received substantial atten-tion by both Joint Applicants in their Environmental Report See Stipulation dated March 30, 1983, transmitted to the Board by NRC Staff letter dated April 4, 1983.

9

("ER-OL") and the Staff in its Final Environmental Statement

("FES"). See, e.g., ER-OL $5.1.4.4; FES $$4.2.6.2, 5.4.1.

Obviously, this is not a matter requiring the development of new information or data. West Valley simply does not agree with the analysis performed by Joint Applicants and the Staff. It is totally unreasonable for West Valley to assert in this instance that Joint Applicants and the Staff are at-tempting to shift the burden for preparing information to West Valley. West Valley is challenging the analysis per-formed by Joint Applicants and the Staff. Joint Applicants are therefore entitled to discovery of the basis for such challenge. To the extent that West Valley may claim that Interrogatories 5 and 6 may be burdensome, Joint Applicants would be satisfied, as to Interrogatory 5, with the level or levels of salt drift deposition which, according to West Valley, may cause adverse impacts to agricultural produc-tivity, and, as to Interrogatory 6, with isopleths of pre-dicted salt drift particle deposition'.

Interrogatory 21 requests, for each parcel of property owned by West Valley members and for each crop grown during the past three years, that the irrigation method used be identified ds well as the frequency of irri-gation. The interrogatory also asks for the quantity of water used and the source of the irrigation water. There can be no doubt that the information sought by t'lis inter-rogatory is relevant to the issues to be litigated at the

l hearing. The irrigation method is relevant in determining the quantity of salt deposited per acre. For example, if spray irrigation is used, this may increase the total amount of salt deposited on the leaves of the crops. Spray irri-gation may also have the effect of washing off any salt particles which have accumulated on the leaves of the crops.

Joint Applicants' review of the documents cited in West Valley's Supplemental Answers to Interrogatories, dated June 29, 1983, has not disclosed the type of information sought by Interrogatory 21. At this point, therefore, it appears that the only way such information can be obtained is from the farmers. This request should not entail the development or preparation of new information. Rather, the information sought should already be known to West Valley members. Joint Applicants are simply asking that it be provided. Interrogatories 22 and 23 ask for the identifi-cation of persons having knowledge of and documents which refer to the information set forth in the answer to Inter-rogatory 21, respectively. These interrogatories also clearly seek discoverable matter.E/

Interrogatory 24 requests information on the water quality of the irrigation water used by West Valley members.

E/ Interrogatories 18-20 are similar to Interrogatories 21-23 except that the former set seeks information for the last ten years. Joint Applicants are not pursuing informa-tion covering the entire ten-year period in order to reduce the effort required of West Valley in responding.

In an effort to reduce the burden in responding to this in-terrogatory, Joint Applicants would be satisfied if the re-quested information is provided for the irrigation water re-ferred to in the answer to Interrogatory 21 rather than In-terrogatory 18. See footnote 3, supra. The information sought by this interrogatory is clearly relevant to the is-sue respecting how much salt is deposited per acre. If a spray irrigation method is used by the farmers in the vi-cinity of PVNGS, the amount of salt deposited per acre may be dependent upon the salinity of the irrigation water used.

As was the case with Interrogatory 21, Joint Applicants' review of the documents identified by counsel for West Valley has not disclosed the type of information requested by Interrogatory 24. Also, the information sought should already be known to West Valley members. Interrogatories 25 and 26 ask for identification of persons having knowledge of and documents which refer to the facts set forth in the an-swer to Interrogatory 24. Such information is clearly dis-coverable.

Interrogatory 33 refers to West Valley's allega-tion in its Petition to Intervene that all West Valley mem-bers are located "within the area likely to be affected" by salt deposition and asks for information concerning the area referred to by West Valley. As was the case with Interro-gatories 5, 6 and 7, this interrogatory is relevant to the questions of how much salt will be deposited per acre as well

as the tolerance of crops to salt deposition, questions which have been stipulated to as issues in this proceeding. Fur-thermore, the interrogatory was asked based on one of West Valley's own allegations. Joint Applicants simply seek to uncover the basis for the allegation and thus are entitled to an answer.

Interrogatory 75 asks for a precise definition of the term "near the plant" as utilized by West Valley in its Contention III.C(ii) of its original Petition to Intervene.

That contention alleged that in the area surrounding PVNGS, deposition levels of 2-4 pounds per acre per week would oc-cur near the plant. In answer to Joint Applicants' Interro-gatory 169 from their First Set of Non-Uniform Interroga-tories, West Valley explained that initial estimates of salt drift deposition from the PVNGS cooling towers are provided in the model utilized by Professor Davis, one of the West Valley consultants, and described in his report. Notwith-standing the fact that Professor Davis has apparently per-formed some analysis, West Valley, in responding to Interro-gatory 75, states that it cannot at this time provide a pre-cise description of the term "near the plant." West Valley's response obviously cannot be reconciled with the fact that the analysis performed by Professor Davis identified areas l

! where 2-4 pounds per acre per week would be deposited. It would seem to Joint Applicants that West Valley would simply have to look at the results of Professor Davis' analysis to 1

l 1

O determine the extent of the area where 2-4 pounds per acre per week would be deposited. That area presumably would constitute the area referred to by West Valley as "near the plant." The information must be available and Joint Appli-cants are entitled to know what it is.

As noted at the outset of this discussion, each of the interrogatories fall within the scope of discovery per-mitted under the Commission's rules. Such rules are to be liberally construed. Pacific Gas & Electric Company (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038, 1040 (1978). Joint Applicants urge the Board to reject West Valley's transparent attempt to frustrate Joint Applicants' legitimate and reasonable discovery requests.

WHEREFORE, Joint Applicants move this Board for an immediate order compelling Intervenor West Valley to respond to the Interrogatories set forth in Attachment A hereto.

RESPECTFULLY SUBMITTED this 15th day of July, 1983. ~

SNELL & WILMER By

' Arthur- C y r _

Warren E. Platt Charles A. Bisch Vaughn A. Crawford 3100 Valley Bank Center Phoenix, Arizona 85073 Attorneys for Joint Applicants ~l f

.9 ATTACHMENT A

1. State whether each of the following indivi-duals is a current director of West Valley:

(a) Dan Saylor (b) Rick Ladra (c) Phil Ladra (d) Paul Perry (e) Harry W. Porterfield (f) Gary Accomazzo

{

\

(g) Bob Sheppard (h) Jim Gladden (i) Delbert Beyer (j) Don Narramore (k) Bill Odom (1) F. Ronald Rayner (m) Stephen P. Pavich (n) Jackie Meck (o) W. T. Gladden -

3. In your Petition, you allege that West Valley has 56 farmer members. Identify the 56 members who comprise West Valley and state, for each, his or her address.

5. For each parcel of property described in answer to the preceding interrogatory, state whether you claim that such parcel, or any part thereof, will be af-fected or may potentially be affected by salt drift depo-sition from the PVNGS. If you claim that only a portion of

e any parcel listed herein will or may be affected, describe specifically the part thereof which you claim will or may be affected.

6. For each parcel of property listed in answer to the preceding interrogatory, state the amount of drift per acre which you claim will be deposited thereon on a daily, monthly and annual basis.

7. Describe the precise method by which the deposition figures given in response to the preceding in-terrogatory were calculated. Include in your answer all facts, assumptions, and calculations upon which such figures are based.

21. For each parcel of property listed in re-sponse to Interrogatory No. 4, and for each crop which you claim was grown thereon during the past three years, identify the irrigation method used for each such crop and the fre-quency with which such crop was irrigated. Your answer should include, but not be limited to,- the total quantity of e' g

• j water applied per acre per day, per month, and per growing

/ season, and the source of the irrigation water.

i

, 22. Identify each person having knowledge, or l f l claiming to have knowledge, of the facts set forth in your j l

answer to the preceding interrogatory. As to each such j person, state the specific facts concerning which they have knowledge or claim to have knowledge.

4

, fj to jy 6

7-T UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ARIZONA PUBLIC SERVICE ) Docket Nos. STN 50-529 COMPANY, et al. ) STN 50-530

)

(Palo Verde Nuclear )

Generating Station, )

Units 2 and 3) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of " Joint Applicants '

Answer to West Valley Agricultural Protection Council, Inc. 's Motion for Protective Order" and " Joint Applicants' Motion to Compel West Valley Agricultural Protection Council, Inc. to Answer Interrogatories" have been served upon the following listed persons by deposit in the United States mail, properly addressed and with postage prepaid, this 15th day of July,1983.

Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l Chairman, Maricopa County Board of capervisors l 111 South Third Avenue i

Phoenix, AZ 85004 Atomic Safety and Licensing Appeal Board Panel i U.S. Nuclear Regulatory Commission j Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

t C

i I

t Robert M. Lazo, Esq.

Chairman, Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Richard F. Cole Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Dixon Callihan Union Carbide Corporation P.O. Box Y Oak Ridge, TN 37830 Lee Scott Dewey, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Edwin J. Reis, Esq.

Office of the Executive Legal Directer U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Lynne Bernabei, Esq.

Government Accountability Project Institute for Policy Studies 1901 Q Street, N.W.

Washington, D.C. 20009 Kenneth Berlin, Esq.

Suite 550 2550 M Street, N.W. ,

Washington, D.C. 20037 Charles A. Bipchoff

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