ML20077G042
| ML20077G042 | |
| Person / Time | |
|---|---|
| Site: | Washington Public Power Supply System |
| Issue date: | 08/01/1983 |
| From: | Reynolds N DEBEVOISE & LIBERMAN, WASHINGTON PUBLIC POWER SUPPLY SYSTEM |
| To: | NORTHWEST ENVIRONMENTAL ADVOCATES (FORMERLY COALITION |
| References | |
| ISSUANCES-CPA, NUDOCS 8308030326 | |
| Download: ML20077G042 (19) | |
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NUCLEAR REGULATORY COMMISSION 4
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i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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WASHINGTON PUBLIC POWER
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SUPPLY SYSTEM
) Docket No. 50-460-CPA
)
(WPPSS Nuclear Project Po. 1)
)
LICENSEE'S RESPONSE TO INTERVENOR'S THIRD SET OF INTERROGATORIES On July 13, 1983, intervenor served the Washington Public Power Supply System (" Licensee") with its third set of interrogatories in the captioned proceeding.
Pursuant to Sections 2.740b(d) and 2.741(d) of the NRC Rules of Practice, Licensee sets forth its response to each interrogatory.
INTERROGATORY 1:
State the full name, address, occupation and employer of each person answering the interrogatories and designate the interrogatory or the i
part thereof he or she answered.
Response
The individual responsible for answering these interrogatories is Mr. Alan G.
Hosler Project Licensing Manager, WNP-1, Washington Public Power Supply System.
His business address is 3000 George Washington Way, Richland, Washington, 99352.
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a INTERROGATORY 2:
Provide a list of and make available all documents received by the Applicant from the Bonneville Power Administration ("BPA") from January 1, 1981 to the present regarding the anticipated cessation and actual cessation of construction activity at WNP-1, including the placing of the project in a mothballed, deferred or preserved state.
Response
The information requested in this interrogatory will be made available on August 17, 1983.
Procedures to be followed in examining these documents are set forth in Licensee's responses to intervenor's first and second set of interrogatories.
INTERROGATORY 3:
Provide a list of and make available for inspection and copying all documents provided by Applicant to the BPA from January 1, 1981 to the present regarding the anticipated cessation and actual cessation of construction activity at WNP-1, including the placing of the project in a mor d:c,lled, deferred or preserved state.
Response
The information request ad in thi s interrogatory will be made available on August 17, 1983.
1 1
Procedures to be followed in examining these documents are f
set forth in Licensee's responses to intervenor'E first l
l and second set of interrogatories.
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INTERROGATORY 4:
What are the " current conditions" referred to by Licensee in its response to Intervenor's Second Set of Interrogatories, Nos. 14 and 24, which affect the determination that an extension to 1991 is for a " reasonable period of time"?
Provide this information in a list format with the greatest specificity possible and refer to all the documents which are relied upon as a basis for each condition.
Response
The " current conditions" referred to in Licensee's response to interrogatories 14 and 24 of intervenor's second set of interrogatories are (1) the
' recommendation by BPA regarding WNP-1 and (2) the difficulties in obtaining financing for the project in light of this recommendation.
The documents which are relied upon as a basis for each condition are set forth below:
Recommendation of BPA Licensee's April 30, 1982 letter to Mr. Harold R.
Denton, Director, Office of Nuclear Reactor Regulation, U.
S.
Nuclear Regulatory Commission, as noted by the Staff upon its issuance of the June 16, 1983 Order Extending Construction Completion Date;
(
o o LiceEs'e's January 11, 1983 letter to Mr. Harold R.
e Denton, Director, Office of Nuclear Reactor Regulation, U.
S.
Nuclear Regulatory Commission, as noted by the Staff upon its issuance of the June 16, 1983 Order Extending Construction Completion Date; The net billing agreements signed by each of the project participante, the Licensee and BPA.
The Project Agreement executed between BPA and the Licensee.
Financing Difficulties Each of the documents listed abo e in connection with the recommendation of BPA are also relied upon as a basis for this condition.
INTERROGATORY 5:
Provide all materials and documents used by the BPA to prepare the " Analysis of Alternatives Related to WNP-3, May 26, 1983" by the BPA (hereinafter refered [ sic] to as the WNP-3 Decision Document) which bear in any way upon the deferral of construction on WNP-1.
Response
Licensee objects to interrogatory 5 on the ground that it seeks materials and documents not in the Licensee's possession, custody or control.
Section 2.741(a) permits any party to serve on any other party a request to produce and permits the requesting party to
.. inspect and copy documents which are within the scope of Section 2.740 "and which are in the possession, custody, or control of the party upon whom the request is served Interrogatory 5 clearly seeks documents within the possession, custody or control of BPA and not the Licensee.
Moreover, it impermissibly requires the Licensee to divine the materials and documents BPA used in preparing the materials and documents sought here.
Section 2.741(b) is based for the most part on Rule 34 of the Federal Rules of Civil Procedure and, as such, judicial interpretations of the analogous federal rule can served as useful guidance.
See, e.g., - Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),
LBP-78-37, 8 NRC 575, 581 (1978).
Those interpretations make it abundantly clear that a party may not be compelled to produce materials and documents which are not in its possession, custody or control.
4A Moore's Federal Practice T 34-17.
In addition, interrogatory 5 seeks materials and l
l documents which in fact address the future construction schedule of WNP-3, not WNP-1.
Thus, interrogatory 5 seeks information outside the scope of this proceeding and which is not reasonably li'kely to lead to the discovery of
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admissible evidence.
10 C.F.R. Section 2.740(b).
Accordingly, for the two reasons set forth above, interrogatory 5 is objectionable.
INTERROGATORY 6:
Provide all materials and documents used by the BPA to prepare the " Analysis of Resource Alternatives" dated April 19, 1982 by the BPA (hereinafter refered [ sic] to as the WNP-1 Decision Document).
Response
Licensee objects to interrogatory 6 because it requests documents not in Licensee's posses-sion custody or control.
The legal basis for this objection is set forth in Licensee's response to interrogatory 5.
INTERROGATORY 7:
Explain why the Applicant believes need for power and financing are not issues to be considered in this proceeding taking it.to account item 6 on page 2 of Applicant's letter dated January 11, 1983 requesting an extension for the completion date for WNP-1 (and used subsequently as the basis for the NRC Staff SER and Order, dated June 16, 1983) which states:
"recommen-dations of the BPA to WPPSS that the construction on WNP-1 j
be delayed for an additional period of two to five years (beyond June 1, 1986) due to load / response balance changes and economic factors identified in the BPA's report i
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" Analysis of Resource Alternatives, dated April 19, 1982."
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(emphasis added).
. 1 R sponse:
With respect to need for power, intervenor stated in response to interrogatory 7 of the NRC Staff's First Set of Interrogatories that need for power is not an issue in.this proceeding.
It reaffirmed that position in response to Staff interrogatories 8, 13 and 14.
. Based on these responses, Licensee concluded that intervenor did not intend to put this' issue in controversy.
- See, e.g.,
Licensee's Response to Inter-venor's Second Set of. Interrogatories at Interrogatory 19.
Intervenor then abruptly changed its mind, retracted its position that need for power is not an issue in this proceeding, and is now apparently attempting to raise such issue.
See Intervenor's Updated Responses to NRC Staff's First Set of Interrogatories, July 13, 1983 at Interrogatory 7.
Accordingly, because the issues in this proceeding are raised by intervenor and because intervenor
-is apparently now endeavoring to litigate an issue involving need for power, that issue will have to be considered in some form by the Board.
With respect to financing, Licensee has never stated that such issue is not to be considered in this proceeding.
INTERROGATORY 8:
Identify what obstacles exist to financing for WNP-1 including any or all elements of the BPA recommendation, how such obstacles prevent financing,
. the anticipated time for each obstacle to be overcome, and what must occur for each obstacle to be overcome.
Explain how all obstacles will be overcome in a "two to five year" period following the date of cessation of construction.
Response
There are two obstacles beyond the control of Licensee which currently prevent financing of WNP-1 through the sale of bonds by making those bonds unmarketable.
The first is the possibility that the assets of WNP-1 might become subject to the actions of a bankruptcy court were Licensee to file voluntarily a petition for bankruptcy.
(As a matter of law, Licensee cannot be forced into involuntary bankruptcy.
See 11 U.S.C.
Chapter 9.)
The second is the pending litigation in the U.
S.
Court of Appeals for the Ninth Circuit l
concerning the validity of the Net Billing Agreements.
Both obstacles could be overcome through the enactment of state and federal legislation and/or a favorable decision in the Court of Appeals affirming the District Court, which had upheld the Net Billing Agreements.
At the I
current time, it is reasonable to assume that these l
obstacles can be overcome in "two to five years. "
INTERROGATORY 9:
Which of the scenarios presented in l
Table III-C.1 of the WNP-3 Decision Document was chosen in July 8, 1983 by the WPPSS Executive Board / Participants Committee /WPPSS Board of Directors?
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Response
Licensee objects to interrogatory 9.
As noted in response to interrogatory 5, the BPA document referenced in interrogatory 9 does not address the future alternatives concerning WNP-1.
Rather, it address the future construction of WNP-3.
Accordingly this interroga-tory is objectionable because it seeks information concerning WNP-3 which is not within the scope of discovery allowed by Section 2.740 of the NRC Rules of Practice.
INTERROGATORY 10:
Does the Applicant believe that the restart of construction of WNP-1 is tied in any way to the use of BPA revenues for any of the net-billed projects?
Does BPA belive [ sic] that the restart of construction of WNP-1 is tied in any way to the use of BPA revenues for any of the net-billed projects?
If so, provide the legal basis for use of such funds.
Response
Applicant does not understand what intervenor means by the word " tied."
Upon clarification of this aspect of the interrogatory, Licensee will respond.
The balance of this interrogatory seeks from the Licensee information as to the opinion of BPA on certain matters and the legal basis for that opinion.
These aspects of interrogatory 10 are objectionable.
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Whether BPA believes that the restart of construction of WNP-1 is tied in any way to the use of BPA revenues from any of the net-billed project is a question best directed to BPA.
The Licensee is not authorized to speak for BPA, which interrogatory 10 assumes.
Moreover, this aspect of interrogatory 10 constitutes discovery against a' person not a party to this proceeding.
Sections 2.740b and 2.741, pursuant to which this discovery request is i
made, are. expressly limited to discovery among the parties to this proceeding.
The last question of interrogatory 10 calls for a legal conclusion on the part of the Licensee, BPA or both as to whether the restart of construction of WNP-1 may be tied.in any way to the use of BPA revenues for any of the-net billed projects.
It is well settled that interroga-l
_ tories calling for legal conclusions are objectionable.
- See, e.g.,
Murquiz v.
City of San Antonio, 520 F.2d 993, 1002 n. 8 (5th Cir.); aff'd en banc, 528 F.2d 499 (1975);
vacated on on other grounds, 438 U.
S. 901 (1978).
i This aspect of interrogatory 10 is also objectionable i
because it is impermissibly vague.
It does not specify
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whether the legal basis it seeks is to be provided by the Licensee, BPA'or both organizations.
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. INTERROGATORY 11:
If the answer to Interrogatory 10 above is yes and the answer to Interogatory [ sic] 9 above is scenario 2a, 2e or 2f, what ' impact would Applicant anticipate on the restart of construction of WNP-1 from a ruling that use of BPA revenues for construction or rampdown was illegal, including the effects on the rampdown or construction on WNP-37
Response
No response is required to inter-rogatory 11.
INTERROGATORY 12:
BPA states in the WNP-3 Decision Document that the restart of construction of WNP-1 is-tied to the restart of construction of WNP-3.
Does Applicant agree or disagree with this position?
Explain fully and provide the basis for the response.
l
Response
Licensee has reviewed the BPA i
document referenced in this interrogatory and has found no statement indicating that the restart of construction of
'WNP-1 is " tied" to the restart of construction of WNP-3.
Co nsequently, Licensee is unsure of which portions of the WNP-3 Decision Document intervenor is referencing.
Licensee will respond following clarification of this l
aspect of interrogatory 12.
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l
. INTERROGATORY 13:
What effect would there be on the restart of construction of WNP-1 if it were determined that there had been a misallocation of funds on the WNP-1/4 projects such that such funds would have to be repaid to the WNP-4/5 Participants by WPPSS?
Response
The effect of such a determination would depend on a number of factors, including the extent of any such misallocation, when the determination was made, and the arrangements implemented to correct the misallocation.
INTERROGATORY 14-Taking into consideration the statements in the WNP-3 Decision Document that deferral of construction of WNP-3 for a minimum of three years will lead invariably to an additional deferral of WNP-1 for 2 to 7 years ( for a total of 5 to 12 years) and the fact that WPPSS deferred construction of WNP-3 for "three j
years" on July 8, 1983 what is the basis for Applicant's statements to the NRC that the deferral of WNP-1 is for 2 to 5 years.
What is Applicant's basis for claiming that 2 to 5 years is a " reasonable period of time"?
Does Applicant contemplate an amendment to their current application for a construction permit extension?
If not, why not?
Provide all documents related to the responses in this interrogatory including internal memoranda, notes, minutes etc.
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9 Response.
Interrogatory 14 rests on the erroneous factual premise that the Licensee deferred construction of WNP-3 for three years.
In fact, WNP-3 has been deferred until a source of funding for its completion is assured.
In addition, key class 1 contractors have been and will be retained for the next three to nine months to preserve the capability for a reasonably efficient restart.
The basis for this response is the July 8, 1983 resolution of the Licensee's Executive Board.
This document will be available to intervenor for innpection and copying on August 17, 1983.
INTERROGATORY 15:
Does the Applicant disagree with the results o f "WNP-1 vs. WNP-3 Restart Sensitivity Analysis" presented in Table IV.K.1 of the WNP-3 Decision Document which concludes that a restart of WNP-3 is preferred to WNP-l?
If so, what specific considerations does Applicant consider are wrong, and in what way?
Response
Licensee has not independently evaluated "WNP-1 v. WNP-3 Restart Sensitivity Analysis. "
Consequently, it need not respond to the balance of this interrogato ry.
See Philadelphia Electric-Co. (Limerick Generating Station, Units 1 and 2); Order ( Concerning Motion to Compel Answers to Interrogatories); Do cket No s.
50-352 and 50-353; August 24, 1982 slip op. at 1-2.
Tb the extent that interrogatory 15 would require the preparation of such analysis Licensee objects to it.
INTERROGATORY 16:
Upon what factors does the restart of construction of WNP-3 rely?
What obstacles exist?
When and how are these obstacles expected to be overcome?
Re sponse :
Interrogatory 16 seeks information related only to the status of WNP-3.
Such information is not relevant to this proceeding nor is it likely to lead to the discovery of admissible evidence.
Accordingly, Licensee objects to it on the grounds that it is outside the scope of permissible discovery.
10 C.F.R.
Section 2.740(b).
INTERROGATORY 17:
Provide the minutes of all meetings of the WPPSS Board of Directors at which the delay of WNP-1 was discussed.
Response
This material will be made available on August 17, 1983.
INTERROGATORY 18:
Provide the minutes of all meetings of the WNP-3 Participants Committee at which the l
delay of WNP-1 as discussed.
I
Response
License is not aware of the existence of a " Participants Committee" for WNP-3.
However, if this interrogatory seeks the minutes of the WNP-3 Participants Review Board, such documents are not within the Licensee's
possession, custody or control.
As such, the interrogatory is objectionable.
The legal basis for this objection is set forth in response to interrogatory 5.
INTERROGATORY 19:
Does the Applicant agree or disagree with the statement by the NRC Staff in its response to Intervenor's First Set of Interrogtatories
[ sic], No. 41, that:
"Need for power has some signifi-cance in this proceeding only because it has been raised as among the reasons for the BPA recommendation to defer construction.
The Permittee offers the BPA recommendation as one of the factors constituting " good cause" to extend the plant completion date."?
Explain fully your response.
Response
Licensee agrees with the statement of the NRC Staff in response to interrogatory 41 of the Intervenor's First Set of Interrogatories cited above.
The Licensee also agrees with the Staff's. statement in that response that the issue is whether BPA's recommenda-tion that WNP-1 be deferred for two to five years is an act which is beyond the control of the Licensee and constitutes good cause for the extension.
Accordingly, a central issue in this proceeding is not whether power generated from WNP-1 will be needed during the length of the construction permit extension.
Rather, it is whether
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the BPA recommendation constitutes good cause for that extension.
Need for power is relevant in this proceeding only because it was a factor upon which BPA based its recommendation.
Respectful submitted,
/
l7 Nichol Sanfor' y S Reynolds L.
- artman DEBEVO SE LIBERMAN 1200 Seven enth St.,
N. W.
D.
C.
20036 (202) 857-9817 Counsel for Licencee August 1, 1983 l
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COUNTYOFBENTON
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A.G.Hosler,beingdulysworn,deposesandsays:
That he is Project Licensing Manager, WNP-1, for the' Washington Public Power Supply System, and knows the contents of the foregoing Licensee's Response to Intervenor's Third Set of Interogatories; that the same is true of his own knowledge except as to matters therein stated on information and belief, and as to that, he believes themtobetrue.
NdW Sworntoandsubscribedbeforeme onthis M day of / h,4f,1983.
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e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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WASHINGTON.PUBLIC POWER
)
Docket Nos. 50-460-CPA
. SUPPLY SYSTEM
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(WPPSS Nuclear Project No. 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing
" Licensee's Response to Intervenor's Third Set of Interrogatories" in the captioned matter were served upon the following persons by deposit in the United States mail, first class, postage prepaid, this 1st day of August, 1983:
Herbert Grossman, Esq.
Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Board Licensing Board U S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Mitzi A.
Young, Esq.
Mr. Glenn O.
Bright Office of the Executive i
Atomic Safety and Licensing Legal Director Board U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission l
Commission Washington, D.C.
20555 l
Washington, D.C.
20555 Chairman, Atomic Safety and Dr. Jerry Harbour Licensing Board Panel Atomic Safety and Licensing U.' S. Nuclear Regulatory Board Commission i
U.S.
Nuclear Regulatory Washington, D.C.
20555 i
Commission Washington, D.C.
20555 l
l-l 1
8 Mr. Gerald C.
Sorensen Nicholas D.
Lewis, Chairman Manager 06 Licensing Energy Facility Site Washington Public Power Evaluation Council Supply System State of Washington 3000 George Washington Way Mail Stop PY-ll Richland. Washington 99352 Olympia, Washington 98504 Mr. Scott W.
Stucky Mr. Eugene Rosolie Docketing & Service Branch Coalition for Safe Power U.
S.
Nuclear Regulatory Suite 527 Commission 408 South West 2nd Washington, D.
C.
99352 Portland, Oregon 97204 Sanf4td L'.
Eartman
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