ML20079Q030
| ML20079Q030 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 11/06/1991 |
| From: | Charnoff D CLEVELAND ELECTRIC ILLUMINATING CO., OHIO EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#491-12344 91-644-01-A, 91-644-1-A, A, ALAB-613, LBP-75-30, LBP-78-37, LBP-82-117, LBP-82-82, LBP-83-09, LBP-83-17, LBP-83-9, LBP-91-38, NUDOCS 9111150075 | |
| Download: ML20079Q030 (27) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATO"tY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
)
OHIO EDISON CCMPANY ) Docket Nos. 50-440-A
) 50-346-A (Perry Nuclear Power Plant, Unit 1, )
Facility Operating License )
No. NPF-58) ) (Suspension of
) Antitrust Conditions)
THE CLEVELAND ELECTRIC ILLUMINATING )
COMPANY ) ASLBP No. 91-644-01-A THE TOLEDO EDISON COMPANY )
)
(Perry Nuclear Power Plant, Unit ' , )
Facility Operating Lice..ise )
No. NPF-58) )
(Davis-Besse Nuclear Power Stte n, )
Unit 1, Facility Ope.'ating Licerce )
No. NPF-3) )
. ___ )
9HIO EDISON COMPANY'S MOTION TO COMPEL THE E C STAFF TO RESPOND TO INTERROGATORIES Pursuant t- 10 C.F.R. 5 2.740(f), Applicant Ohio Edison Com-pany hereby moves the Board to compel the NRC Staff to respond to chio Edison's Inte;rogatories submitted on September 20, 1991.
I. INTRODUCTION On September 19, 1991, the Licensing Board in this case pro-visionally determined at the Prehearing Conference that Applicant Oh io Ec' .on Company (" Ohio Edison" or "OE") was entitled to seek discovery in order to determine whether any inappropriate bias, 9111150075 911106 POR ADOCK 05000346 N M PDR
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1 prejudgment or congressional interferer.ce underlay the NRC Staff's recommendation to deny OE's application to suspend the Perry antitrust license conditions. Prehearing Conference Tran-script at 118-19. T"' following day, OE served the NRC Staff (with copies to ,cte 9: e . .nd all parties) with a set of fourteen interrogatories ut to r t< he issues of bias, prejudgment and congressional i n t e c t 4 :+ *v.<r . In its Prehearing Conference Order, having had the opportunity to review OE's interrogatories, the Board found, in accordLnce with 10 C.F.R. S 2.720(h)(2)(ii), that "the answers to applicant's interrogatories are, as a general matter, necessary to a proper decision in this proceeding and that, as they involve Staff contacts with congressional person-nel, the answers are not reasonably obtainable from any other source." Prehearing Conference Order, LBP-91-38 (Oct. 7, 1991),
slip op. at 52 n. 95. The Board also stated that "under section 2.720(h)(2)(iv), the Staff is free to seek a protective order under section 2.740(c) with regard to any particular interroga-tory it finds objectionable." Id.
On October 23, 1991,1# the NRC Staff served Ohio Edison with a document entitled "NRC Staff's Response to Chio Edison Compa-ny's Interrogatories to the Nuclear Regulatory Commission Staff" (hereinafter "NRC Staff's Response"). This Response failed to 1/ The NRC Staff's response was initially due on October 21; counsel for Chio Edison agreed to the Staff's telephoned request for.a two-day extension.
1 provide a complete, explicit, and fully responsive answer to any of the fourteen inter ogatories. While the Response provided three " general objections," as well as cursory specific objec-tions to Interrogatories 6, 7, 9, 10, 13, and 14, the NRC Staff did not file a motion for a protective order in connection with these objections. The NRC Staff has thus ignored the Board's holding that ansvers to OE's interrogatories are necessary to a proper decision in this proceeding, and the Board's direction that the Staff should move for a protective order in connection with interrogatories that it firds objectionable. See LBP-91-38 at 52 n. 95.
II. MG_L A STANDARDS Discovery in NRC proceedings is governed generally by 10 C.F.R. SS 2.740-2.742 (1991), which are patterned after the Fed-eral Rules of Civil Procedure. The NRC's rules on discovery on the NRC Staff are further specified in S 2.720(h)(2). It is gen-erally appropriate to interpret the NRC's discovery rules by ref-erence to judicial interpretation of tl'e Federal Rules. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 N.R.C. 575, 581 (1978).
Important purposes of discovery are to eliminate the element of surprise, to enhance parties' ability to develop a complete record for decisional purposes, to shorten the actual hearing, and thus to minimize expense and inconvenience. Pennsylvania
t O
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' Power & Licht Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 N.R.C. 317, 321-22 (1980); Pacific Gas &
Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 N.R.C. 1038, 1040 (1978).
- Interrogatories addressed to the NRC Staff are allowed where j the Licensing Board determines that the information sought is I necessary to a proper decision in the case and is not obtainable ;
elsewhere. 10 C.F.R. 5 2.720(h)(2)(ii); see Susauehanna, supra, '
ALAB-613, 12 N.R.C. at 323. The NRC Staff must respond to inter-rogatories where the Licensing Board has held the responses to be necessary under 5 2.720(h)(2)(ii). Cleveland Electric 111uminat-ina Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-117, 16 N.R.C. 1955, 1957-(1982).
Interrogatory answers must be complete, explicit, and responsive. Boston Edison Co, (Pilgrim Station, Unit 2),
LBP-75-30, 1 N.R.C. 579, 503 (1975). A responding party must give a fair interpretation to the interrogatories. See Perry,.
supra,_LBP-82-117, 16 N.R.C. at 1958.- A lack of complete knovi-edge does not excuse a failure to respond; rather, a party.must
- answer to the best of its-ability and provide whatever informa-tion-it. possesses. Public Service Co. of New Hampshire (Seabrook -
Station,fUnits 1 and 2), LBP-83-9, 17 N.R.C. 403, 407 (1983);
I Pilgrim, supra, LBP-75-30, 1 N.R.C. at 583. A party "may be ;
required to perform some investigation to determine what l
e
?
information it actually possesses." Susouchanna, syn , ;
ALAB-613, 12 N.R.C. at 334 (Licensing Board "gave a cool recep- ,
I tion to a blanket refusal to answer even one of (the interrogato-ries) on the grounds of ' undue burden'"). The fact that ansver-ing relevant interrogatories " involve [s] work, research and !
- expense is not sufficient to render them objectionable [where) much of the information is in the possession or knowledge of the (parties to whom they are directed) and must be compiled in their own preparation for trial." & at 334 n. 26 (guoting United States v. NYSCO Laboratories, Inc., 26 F.R.D. 159, 161-62 j (E.D.N.Y. 1960)).
An objection to an inter'.sgatory must be specif ic.
Susquehanna, supra, ALAB-613, 12 N.R.C. at 323. The objecting party has the burden of establishing that the material sought is not discoverable. See Public_ Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 N.R.C. 490, 495 (1983); Lonq_Isir.nd Llahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 N.R.C. 1144, 1153 (1982); Pilarim, supra, LDP-75-30, 1 N.R.C. at 583. An evasive or incomplete answer to ,
an interrogatory is treated as a failure to answer, which is not
" excused on the ground that the discovery sought is objectionable unless the person or party failing to answer or respond has applied for a protective order pursuant to paragraph (c) of this
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e section."E# 10 C.F.R. 5 2.740(f). In particular, evasiveness by the NRC Staff "in responding to interrogatories is destructive of public confidence." Perry, supra, LBP-82-117, 16 N.R.C. at 1958.
III. RESPONSE TO GENER6L OBJECTIONS It shoe'd be emphasized at the outset that, in view of the Lic.ensing Board's ruling on ~ the propriety of OE's 'wterrogato-ries, the NRC staff's objections should not even be entertained.
i The failure of the NRC Staff to apply for a protective order !
shoeld be treated as a failure to answer. 10 C.F.R. 5 2.740(f). -
Furthermore, under the standards for discovery enunciated in Section.II above, the specific objections raised by the NRC Staff ,
are wholly inadequate.
The NRC Staff's responses are incomplete in arge measure because of the effect of its three " general objections." NRC
- Staff ? s Response at 1-3. These1 broad objections inappropriately limit the definition-of "NRC Staff" to include only current-employees (General objection 2) in "the chain of review or deci-sion" (General objection 3) who were also in "the office of Nuclear Reactor Regulation, the-office of the Executive Director for Operations, (or were) persons employed by the Office of the General Counsel _who report.up through the Deputy-General Counsel 2/ -Section 2.740(c) is applicable to interrogatories served on I the NRC Staff. 10 C.F.R. 5 2.720(h)(2)(i").
for Hearings, Enforcement, and Administration" (General Objection 1). NRC Staff's Response at 2.
These limitations dramatically reduce the scope of tne terms "NRC Staff" and "NRC employees" from that specified in OE's interrogatories, i.e., all persons, other than the NRC Chairman and Commissioners, who are currently employed by the NRC, or were employed by the NRC during the relevant time _ periods.2# In so doing, the NRC Staff not only rewrites the interrogatories asked of them, but effectively eliminates the primary thrust of OE's interrogatories. The NRC Staff's Response proffers no reason'for the Staff's failure to make reasonable attempts'to contact former employees who were at the NRC during the relevant time periods.
Moreover, General Objections 1 and 3 have the effect of excluding broad categories of NRC employees who are among-the most logical recipients of relevant communications from congressional staff members, _such as employees in the Congressional Affairs Division of the Office of Governmental-and Public Affairs, employees in ,
the Offices of the Chairman and of the individual: Commissioners, and employees of the_ Office of the General Counsel who report up i
1/ Ohio Edison's Interrogatories det.ini the term "NRC" as "(i) the Nuclear Regulatory Commission La an agency of the-United States Government,-(ii) _all persons serving as a Chairman or-Commissioner of'the Nuclear Regulatory Commission at any time-from September 18, 1987 until the present,-(iii)'all- .i r?rsons currently employed by the Nuclear Regulatory--Commis-
-sion, and (iv) all persons who were employed by the Nuclear Regulatory Commission'during the relevant time periods."
'OE Interrogatories at 2.
_..._._-__._._a_._- __ ._ .._ . ,. _ .-. _ ._ _ _ _ - _ _ _ _ . _ . _
i through the Assistant General Counsel for Adjudications and Opin- i ions, or through the Deputy General Counsel for Licensing and Regulations. In short, the NRC Staff has not given a fair inter-pretation to OE's interrogatories. P_i lg r__ig, supra , LBP-8 2-117, 16 N.R.C. at 1957 And, of course, this improperly narrow defi-
-nition taints all of the responses that are provided to OE's interrogatories.S/
In addition, General Objection 3 is misleading, inasmuch as it states that answers "are provided on behalf of NRC Staff ,
employees who were part of the chain of review or decision, or who were otherwise involved in the Staff's consideration of Ohio Edison's application." NRC Staff's Response at 3. Yet in response to Interrogatory (13), the NRC Staff refuses to identify those NRC employees who reviewed or commented on OE's application.
In sum, the NRC Staff has failed to show that it would be unduly burdensome to make a bona fide, reasonable attempt to pro- i vide complete answers to OE's interrogatories, as required by the NRC's rules on discovery. Nowhere, for example, does the NRC i
A/ OE suspects that the NRC Staff would not look favorably on a licensee if, in response to an inquiry from the NRC Staff, e.a., about a facility's status, the licensee chose only to ask its offsite personnel, and declined to ask the question of the personnel most likely to have a substantive-response
-- the: plant staff. And yet this is the approach the NRC Staff considers it appropriate for it to take in this instance.
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i I l
l Staff suggest trat it distributed a memorandum requesting infor- ;
mation from NRC personnel (and those former personnel employed in l the relevant time frame) who reasonably could be expected to have !
been in the chain of review of OE's application, or who are, or J j
were, employed in NRC Offices that reasonably could be expected 1
to have been involved in the kind of communications covered by the interrogatories. In the absence of any showing that its ,
effort has been reasonable, particularly in view of th? reason-
. able nature of OE's interrogatories, the NRC Staff's " general objections" should be overruled.
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RESPONSES TO. SPECIFIC ANSWERS AND_ OBJECTIONS IV.
i Response to Answer to Interrogatory (1)
After quoting' portions of the colloquy between Senators l Johnston'and Metzenbaum'regarding indications that the NRC Staff (
had stated to Senator Johnston's staff that_they did not intend to approve.0hio Edison's application, OC s Interrogatory (1)
- requested the identification of communicatior '9 tween NRC Staff and Senator Metzenbaum's staff to which the quoted scatements may have' referred. The NRC Staff responded'that it does not know of any such communications. . ,
The1NRC Staff's answer to Interrogatory (1) is incomplete due to the overly narrow definition of "NRC. Staff" effected by- . .,
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2 the.three " general objections." See Response to General Objec-tions, pupra, e
Response to'?,nswer to Interroaatory (2)
A -
Intertsgatory (2) requested the identification of subsequent communications betveen Senator Johnston's staff and NRC Staff membtrs identified in response to Interrogatory (1). -The NRC Staff responded simply by referencing its answer to Interrogatory (1).
The NBC . I's answer to Interrogatory.(2) is incomplete due to the overly narrow definitic1 of "NRC Staff" effected by
- the three " general objections." See Response to General Objec-tions, supra' .
Response to Answer to Interrogatory (3)
Interrogatory (?) sought descriptions of internal NRC inves-tigations into the bases for Senators Johnston's and Metzenbaum's agreement that the NRC Staff.had stated to Senator Johnston's
- staff that the=NRC. Staff did not intend to approve OE's;applica-tion.- The NRC Staff responded that it did not know of any such investigations.
-The-NRC Staff's answer to Interrogatory-(-3)-is incomplete d
~due to the overly narrow definition of "NRC Staff" effectt
. . by
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the three "generalcobjections." See Response-to General Objec-tions, supra.
Response to Answer to Interrogatory __(4) 9 Interrogatory-(4) requested the identification o - aments relating to investigations identified in response:to Interroga-tory-(3). .The NRC Staff responded simply by referencing its 1
answer.to Interrogatory (3).
T The NRC Staff's answer to Interrogatory (4) is incomplete i due to the overly narrow definition of "NRC Staff" effected by the three " general objections." See-Response to General Objec :
tions, supra.
Response to Answer to Interrogatory (5)
Interrogatory (5) sought the identification of-.NRC employees who were aware, prior to its propocal, of Senator:Hetzenbaum's bill.to prohibit.the NRC from-granting OE's application, or who-
~
were aware of'other' congressional action-to influence the NRC's
--cons ideration of OE's application.- The NRC Staff respondedLthat-it.did not'know whether any of its employees were'avare of such a legislative? proposal before'its. introduction and consideration on the'. Senate' floor. -
The NRC Staff's answer to Interrogatory (1) is, incomplete duefboth to the overly nor' row definition of "NRC Staff" effected
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- by the three " general objections," see Response to General Objec-tions, supra, and to the anaver's complete failure to respond to Lt he'part-of the-interrogatory covering congressional cetion other than Senator Metzenbaum's proposal. ,
Response to'obiection and Answer to Interrogatorv (6)
After quoting the discussion between Senators Metzenbaum and Johnston'regarding Senator Metzenbaum's indication that he would be contacting the NRC Statt in order to confirm that OE's appli- +
cation would be denied, Interrogatory (6) requested the identifi-cation of such coc.nunications between NRC Staff and Senator Metzenbaum's staff. While maintaining an objection to Interroga--
-tory (6) as vague and as requiring speculation *.s to 5enetor Metzenbaum's intent, the NRC Staff responded that it did not know of any such communications. 4 The NRC Staff's answer to Interrogatory (6) is incomplete due7 to the overly narrow definition of "NRC Staff" effected by the three " general objections." See Response to General Objec-tions, supra. In addition,.this interrogatory:is not ". vague,"
nor does it require " speculation as to what the Senato' -
have had11n mind." .Rather, the interrogatory specificalli ,c ,-any communications between the NRC Staff, and Senator Metzenbaum or
.his staff, occurring on or after March 29, 1988, regardini how the NRC intended.to dispose of OE's application. Senator Metzenbaum's . state of mind is entirely irrelevant in determining
f -.
Whether any such communication.c actually occurred.- The NRC Staff's objection on tr' around is incorrect, and an obfuscation of issues already determined to be necessary to a proper decision in this proceeding. See LBP-91-38 at 52 n. 95.
-Response to Answer to Interrogatory (7)
Interrogatory-(7) requested descriptions of internal NRC investigations into communications between NRC Staff and members of- Congress or their staff regarding whether any NRC Staff-member intended to deny CE's application. The NRC Staff responded that it did not know of any such investigation.
The NRC Staff's answer to Interrogatory (7) is incomplete due to the overly narrow definition of "NRC Staff" effected by the three " general objections." See Response to General Objec-tions, supra.
Response to Answer to Interrogatory (8)
Interrogatory (8) asked for the identification of documents relating 1to investigations-described in response to
-InterrogatoryL(7). The response simply referenced the answer to Interrogatory (7).
The NRC Staff's answer to laterrogatory (8) is incomplete due to the-overly narrow de'finition of "NRC Staff"' effected'by-
the three " general objections." See Response to General Objec-tions, supra.
Response to Obiections to Interrogatory (9)
Interrogatory (9) quoted the colloquy.between Senators Metzenbaum and Ford regarding the possibility that Senator Metzenbaum would re-introduce legislation to prohibit the NRC from granting OE's application. The interrogatory then asked for the identity of NRC employees who were aware of this possibility-prior to the May 1, 1991 denial of OE's application. The NRC Staff objected to this interrogatory on the grounds that_it was too' broad and burdensome, and was not calculated to lead to the discovery of relevant.information.
Once again, the NRC has not explained why it would be unduly burdensome to provide a complete answer to this interrogatory by.
for example, the means previously described, viz., by distribu-
-tion of an internal memo. Its failure to do so is improper.
See, Susquehanna,Esuora, ALAB-613, 12 N.R.C. at 334.
Furthernore, the NRC Staff premises much of its objection to Interrogatory (9)Lon the fact that Ohio Edison attached the_rele-vant Congressional Record pages to various p. eadings in this case, and thus provided "the Staff with-constructive notice of
these matters." NRC Staff's Response at 7.5/ This is a nonresponsive answer.
The purpose of Interrogatory (9) is to identify which NRC employees, at the time Ohio Edison's application was under con-sideration, actually knew of the threat of future legislation to block NRC's consideration of Ohio Edison's application. This information is necessary to determine the actual impact of this -
threat on the NRC Staff's conclusion that the application should be denied. Thus the interrogatory clearly contemplates actual knowledge, not construct:ve knowledge; it refers to " employees who were aware," (emphasis added) not emp' yees who should have been aware, of the possibility of such futuce legislation.
It is irrelevant to the information sought by Interrogatory (9) that Oh Edison had previously raised the congressional pressure issue in proceedings involving the NRC. Ohio Edison had no real choice but to raise its concerns about the effect of con- _
gressional pressure on its ability to obtain a fair hearing before the NRC,6/ and in raising those concerns Ohio Edison was E/ Presumably, the NRC Staff's position is that all NRC employ-ees may be held legally responsible for knowledge of infor-mation contained in NRC files, even if they are actually unaware of such information. As explained infra, this point, even if true, is irrelevant to the information sought by Interrogatory (9).
5/ in the Court of Appeals, the NRC asserted that this matter had to be raised before the agency before it could be Footnote continued on next page.
E obligated to identify the relevant Congressional Record pages.
But this is not the thrust of Interrogatory (9), and the NRC Staff's response reflects only its own crabbed interpretation of the question. While the Staff is certainly free to supplement a fully responsive answer to Interrogatory (9) with information explaining how NRC employees obtained their knowledge of the leg-islative threat if it felt that a complete answer required this explanation, the Staff is not free to disregard the question specified in the interrogatory, which asks about who knew of the congressional threat.
Furthermore, the Staff does not assert that OE's actions were the only means by which NRC employees became aware of the ,
possibility of future legislation. For example, the material available to Ohio Edison certainly expressed the confidence that the NRC Staff would "aomehow" learn of the outcome of the case sought by certain senators, and the future actions these senators were prepared to ta';e, but not because the Staff was going to be provided the informatica by OC.
Footnote continued from previous page, considered by the Court. See Preh. Conf. Tr. (Sept. 19, 1991) at 106-109 (discussion among parties and Licensing Board about representations made by the NRC Staff in plead-ings filed with the District of Columbia Circuit Court of Appeals).
2/ Senator Metzerbaum said, "! have a hunch that somehow they (the NRC Staf f } are monitoring what is going on on the flocr Footnote continued on next page.
'W ' f '
4 The NRC Staff premises the balance of its objection to Interrogatory (9) on the assertion that-the possibility of future ,
legislation proh'ibiting NRC f rom granting OE's application -is irrelevant to the prejudgment, bias and congressional pressure issues which this Board has admitted in this proceeding. The -
Response asserts that it cannot " seriously be argued tr -
mere possibility that a Senator might one day propore lation would cause the NRC Staff to be ' predisposed 'c '
/
application.'" NRC Staff-Response at 8. This is a ;cr . j, p . g I' =
f or it is precisely the-existence of such facts tha* s l'
lish predisposition, .. bias, and congressional interferencr case. Once again, these objections fly in *5e fr.;e of *.t.-
Board's determination to admit these issues (cr resoluti' , 'c . t Board, and to-require the NRC Staff _to provide the;informationi these issues which is both "necessary to a proper decision,"
LBP-91-38 at 52 n. 95, and "not reasonably obtainable from any other source." Jd. ,
s Response to Obiections to Interroaatory (10)
' Interrogatory (10) asked for the identity of NRC employees who were aware of Senator Ford's statement regarding the pressure Footnote continued from previous page.
here_since'it is not a prisate neeting since it is c matter concerning-them and certainly L..e Congressional Record will speak to=the debate . . . ." 134'Cong. Rec. S 3259.
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Senator Metzenbaum'was applying to.the-NRC regarding OE's appli-cation.- No response;was provided by the NRC' Staff beyond a ref-erence to its-objection to Interrogatory (9).
,c _.
As with InterrogatoryL(9), Interrogatory:(10)' clearly and-
-reasonably contemplates actual rather than constructive knowl-
. edge; and so seeks the identity of NRC employees who were actu-ally aware-of Senator Ford's statement regarding congressional-pressure. The NRC Staff's_ response is totally nonresponsive.
See Response to Objections to Interrogatory (9), supra.
Response to Answer to' Interrogatory (11)
In Interrogatory-(11), .OE' sought the identification of com- ,
munications between.NRC employees and' members of Congress or their staff, regarding either Senator Metzenbaum's proposed leg-islation or the general subject of proposed congressional action to influence NRC's consideration of OE's application. In
. response, the NRC Staff stated that it didinot know of any such .
-conmunications.
The NRC Staff's answer'to Interrogatory'(11) is incomplete due to the overly narrow definition of "NRC Staff" effected by thenthree " general objections." -See Response to General Objec-tions, supra, c
, _ _ _ _ . _ _ _ _ _ _ .. ._ _~ . _ . _ . _ _ . _ _ _ . _
Response to Answer to Interrogatory (12_)
Interrogatory (12) seeks the identification of communica-
-tions-between_NRC employees and members of Congress or their etaff.regarding OE's application. The response refers to one telephone conversation, and states-that the NRC Staff does not
'know of any other such conversations. The response-also refers to two ( uments, but does not indicate whether the NRC Staff knows of any other documents responsive to Interrogatory (12).--
The' response to Interrogatory (12) is incomplete for several reasons. First, it is incomplete due to the overly narrow defi-nition of "NRC .Staf f" ef fected by the three " general objections."
See Response to General Objections, supra.
Second, the response inadequately describes the one tele-phone call to which-it refers.- OE's Interrogatories provide
-that:
(8) When use'd in reference tr an oral communication, the word " identify" means to (i)l state the: time, date,-location or-loca- >
tions,: duration, method, and= circumstances.of ~
the communication, (ii) identify all persons-involved with the communication,-(iii) fully describe the substance of the communication, including who communicated what to whom, (iv) state-the purpose of the communication, and
_(v) identify _all documents referring or:
relating to the communication.
OE's Interrogatories at 4. -The' general reference to Mr.
.Rutberg's-telephone call (see NRC Staff's. Response at-9-10) fails
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to provide;the information specifically requested by the above definition. ,
Third, the Response inadequately describes the two documents to which it refers. OE's-Interrogatories provide that:
(7) When used in reference to a docu-ment or written communication, the word
" identify" means to (i) state the nature and title of-the document or written communica-tion, (ii) identify author or preparer of the documen*. or wr' ommunication, (iii) identif y all pers ; neived, read, saw, reviewed,.or com.- document or written communica; - 9te the date or dates of the preparm < iocument or written communicatir he sub-stance of the content. .ent or written communication, , *e the present locction~and cus - - . . ae docu-ment or written communication, ted.ther with a statement.of i ts disposition if it is not in the custody and control of the NRC.
OE's Interrogatories at 3-4.- The general references to the two documents (see NRC Staff's Response at 10) fail to provide the information specifically requested by this definition.
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Resconse to Obiections to Interrogatory (13)
OE sought by Interrogatory (13)fto determine the.identityaof NRC employees who reviewed or commented:on OE's application. The NRC Staff objected to this interrogatory on the grounds that it
- is too broad and burdensome, "not calculated to lead to the' dis-covery of admissible evidence or information relevant to the sub-ject of-this act' ion," and irrelevant. NRC Staff's Response at 10.
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4 Interrogatory (13) is neither irrelevant nor unduly broad or burdensome. .The identity of the NRC employees who were-involved in the process culminating in the May 1, 1991 recommendation to deny OE's application is crucial to determining whether any inap-propriate prejudgment, bias or congressional pressure underlay-that recommendation,_ The NRC Staff's objection that answering
= the interrogatory "would require the Staf f to query every one of its employees as to whether they ever read or casually expressed an opinion about Ohio Edison's application, regardless of whether they were involved in the chain of review or decision with respect'to that application," NRC Staff's Response at 10, is fat-uous. -Clearly Interrogatory (13) does not anticipate that the
. Staff must query every-employee in, for example, the Fuel Cycle Safety Branch of the Industrial and Medical Nuclear Safety Divi-sion of the_ Office of Nuclear Material Safety and. Safeguards.
Rather, Ohio Edison intended, and is entitled to, a bona fide and? reasonable effort 1to respond to Interrogatory (13).
-This:would require that-the Staff seek to elicit information_from employees in the NRC Offices which could-reasonably be expected to'have been involved _in reviewing-OE's application or in commu--
nications-such as those contemplated-by OE's allegations of con a gressional pressure. Certainly, for example, the NRC Staff must--
have-had a " review chain," as it suggests in its " general objec-
~
tion" 3, with concurrence _ sheets or sign-offs required, which.
would indicate the minimal. number and identity of people involved
= -. , _.-. , . _ - - - . . - - . . = - . - - . - - - . _ _ _ . _
l l
in reviewing the NRC Staff's denial. It is hardly burdensome to-produce this-information. And as previously indicated, the Staff is obligated to conduct some investigation -- e.a., through issu- >
ance of an internal memo -- to determine the information it actu--
ally possesses, particularly where requested information is uniquely in its possession. Without any justification,.the NRC Staff has not made such a bona fide and reasonable effort.
Response to Obiection and Answer to Interrogatory (14)-
Interrogatory (14) sought the identity of intra-NRC communi-cations'regarding either Senator Metzenbaum's_ proposed legisla-tion or the general subject of proposed congressional action to influence-the NRC's consideration of OE's application. While objecting to this interrogatory as too broad and burdensome, and "not calculated to lead to the discovery of admissible evidence or information relevant to the subject of this action," NRC Staff's Response at 11, the NRC Staff refertEd to eight-documents as responsive'to the interrogatory, but did not indicate whether it knew of any other such documents.
'The NRC Staff's answer to_ Interrogatory (14) is incomplete due in part to the overly narrow definition of "NRC Staff" effected by the three " general objections." See Response to Gen-
~
eral.0bjections, suora. As explained above,-the Staff did not put this question to th'e very NRC employees who are the most log
- ical links in the chain of communication from congressional staff
.- _ _ _ . _ _ _ _ . _ . . . _ _ _ . . _ _ _ . _ .~. _ . _ _ . _ _ _ _ . _ . _ . _ _ _ _
I members to the NRC Staff. _The answer also is incomplete because its references to-eight documents do not provide the specific information called for by definition (7) of OE's _ Interrogatories
'(quoted in Response to-Answer to Interrogatory (12),-supra).
The NRC Staff's objection to Interrogatory (14) is. based on three-points.- First. ar its objection to Interrogatory (9),
the Staff presses the immaterial point that OE put the Staff on constructive notice of the relevant' congressional events of March 29, 1988. See Response to 05 ject-ions to Interrogatory _(9),
supra. Second, as in~its " general objections" and its specific objections to Interrogatoryf(13), the Staff argues that too many NRC employees are included in_the scope of inquiry. See Response to General Objections, supra, and Response _to Objections to
~
Interrogatory (13), supra.
Third, the Staff mistakenly argues that identifying intra-NRCicommunications relating to Senator Metzenbaum's proposed leg-islation, or to_ proposed congressional action to influence the r NRC?regarding OE's application,-is not " reasonably calculated to lead'to'the discovery of admissible-evidence." NRC-Staff's Response at 11. But to the contrary, the most logical routes for &
communications from-Congrer.s, or other_ communications concerning conaressional.. action,-include communications from the NRC's1 Con-gressional Affairs Division (or-the Offices of'the individual
! commiss'ioners)fto the NRC Staff members _ reviewing OE's 4
i l,
.i-application. Like its objections to Interrogatory (9), the Staff's-objections to Interrogatory (14) make no sense, and fail to conform to the Board's finding that such information is avail-7 able only from the NRC Staff and is necessary to determine the prejudgment and congressional pressure issues. See LBP-91-38 at 52 n. 95; 10 C.F.R. 52.720(h)(2)(li).
V. CONCLUSION For the reasons stated above, Applicant Ohio Edison Company moves the Board to compel the NRC Staff to respond completely, ,
explicitly and properly to Ohio Edison's fourteen
--i n t e r rog a t o r i e s .
Dated: November 6, 1991 Respectfully submitted, SHAW,-PITTMAN, POTTS f. TROWBRIDGE 2 J+ tO'W Gerald Charnoff //[
Deborah-B. Charnoff Margaret S. Spencer 2300 N Street, N.W.
Washington, D.C. 20037 (202) 663-8000
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'91 NOV -7 p 5 d BEFORE TNS ATOMIC SAFETY AND LICENSING BOARD-
)'
In the Matter of )
)
OHIO EDISON COMPANY ) Docket Nos. 50-440-A-
) 50-346-A (Perry Nuclear Power; Plant, Unit 1, )
Facility Operating License )'
. No. NPF-58) ) (Suspension of
) Antitrust Conditions) '
-THE CLEVELAND ELECTRIC ILLUMINATING )
CC1PANY ) ASLBP No. 91-644-OliA '
THE TOLEDO EDISON COMPANY )
)
(Perry ~ Nuclear Power Plant, Unit 1, )
Facility Operating License )
No. NPF-58)- )
(Davis-Besse-Nuclear Power Station, )
Unit 1, Facility Operating License )-
No. NPF-3)- )
)-
CERTIFICATE OF SERVICE I_HEREBY CERTIFY that on thi, 6th day of November, 1991,
- that a copy of the-foregoing Motion to Compel'vas. mailed first-class, postage prepaid, to each'of.the following:
Secretary of the Commission U.S. Nuclear Regulatory: Commission One White Flint North 11555 Rockville Pike -
Rockville, Maryland -
I 1
l
'l l
Charles Bechhoefer Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 4350 East West Highway '
Room E-413 Bethesda, Maryland G. Paul Bollwerk, III Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission ,
4350 East West Highway ,
' Room E-522 Bethesda, Maryland
" Marshall E. Miller, Chairman Atomic Safety and Licensing Board. Panel-
- U.S. Nuclear Regulatory Commission 1920 South Creek Boulevard Spruce Creek Fly-In Daytona Beach, Florida 32124 Joseph Rutberg,.Esq.
Sherwin E. . Turk, Esq.
Steven R. Hom, Esq.
Office of the General Counsel U.S. Nuclear Regulatory Commission
- Washington, D.C.- 20555 Mark C.:Schechter, Esq.,
Janet Urban, Esq. '
- Transportation, Energy and Agriculture-Section Antitrust Division Department of Justice Judiciary-Center Building-555 Fourth Street, N.W.
Washington, D.C. 20001
-James P.. Murphy, Esq.-
. Squire, Sanders & Dempsey_
1201 Pennsylvania Avenue, N.W.
P.O. Box'407 Washington, D.C. 20044 June W.-Weiner,.Esq.,
Chief Assistant Director of Law William M. Ondrey Gruber, Esq.,
Assist : Director of law-William . Zigli, Esq.
Assistant Director of' Law
. City Hall, Room 106 -
601 Lakeside Avenue Cleveland, Ohio 44114 e - d k --- , . , .
w-- ~ w. y -,.c-. y, , y
-,ms ,s.-._co. ,,_._,.m'm,_..m .. _ ,-'r,, ,_..r_ . . .m, . _ - _ , , , ,,.-w..,,.,., . . m,. . ,. , _ . .
..g 4
Reuben Goldberg, Esq.
Channing D. St rother, J r. , Esq.
Goldberg, Fieldman & Letham, P.C.
1100. Fifteenth Street, N.W.
Washington, D.C.- 20005 D. Biard MacGuineas, Esq.
Volpe, Boskey and Lyons 918 Sixteenth Street, N.W.
Washington, D.C. 20006 David R. Straus, Esq.
Spiegel & McDiarmid-1350 New York Avenue, N.W.
Suite 1100 Washington, D.C. 20005-4798 Kenneth L. Hegemann, P.E.
President American Municipal Power-Ohio, Inc.
601 Dempsey Road P.O. Box 549 Westerville, Ohio 13081 Philip-N. Overholt
-Office-of Nuclear Plant Performance Office of Nuclear Energy U.S. Department of Energy, NE-44 s Washington, D.C. 20585 Deborah-B. Charnoff SHAW, PITTMAN,_POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C. 20037 (202) 663-8000 0419/320mes.91 w- .
_ - . _ _ _ - . . . . _ - . - - . - _ . _ - . . - . _ _