ML20080E715

Motion to Compel Intervenor Responses to 830812 Request to Produce & to Interrogatories 7,8,16,24 & 25.Affidavit Should Also Be Required.Certificate of Svc

ML20080E715
Person / Time
Site:	Washington Public Power Supply System
Issue date:	09/12/1983
From:	Reynolds N DEBEVOISE & LIBERMAN, WASHINGTON PUBLIC POWER SUPPLY SYSTEM
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-CPA, NUDOCS 8309140051
Download: ML20080E715 (12)

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e 60CKET 0 USNR UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CFFICE OF ST:ggyp ,

BEFORE THE ATOMIC SAFETY- h;fEP!fI.

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 No. 1) )

LICENSEE'S MOTION TO COMPEL On-August 12,T1983, the Washington Public Power Supply : 3ystem' (" Licensee") served its second set of inter-

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~ rogatories and' requests to produce-to intervenors in the '

captioned proceeding. Intervenor responded to the dis-covery request-o'n-August 26. .Because in many instances that responce was inadequate or non-existent, Licensee hereby moves, pursuant to 10 C.F.R. -Section 2.740(f), that .

intervenor be compelled to respond to Licensee's interrogatories'and requests to produce as set forth below.

I. Requests for Documents

i. In response ' to interrogatories 7, 18, 19 and 23 of -

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' Licensee's First Set of. Interrogatories,'intervenor iden-tified several documents which, pursuant to Licensee's I

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y initial request for documents should have been provided.1 Rather than immediately filing a motion to compel _when intervenor failed to'make these documents available as required for. inspection and copying, Licensee renewed its discovery request for them in its Second Set of Interrogatories and Requests - to Produce to - Intervenor.2

-Again intervenor has simply ignored'this request.3 sAccordingly, Licensee hereby moves that the Board compel

.intervenor to provide the documents it referenced in response to interrogatories 7,-18, 19 and 23 of Licensee's i-

-First. Set of Interrogatories.

II. Interrogatories '

Interrogatories 7 and 8

, -Interrogatories 7 and 8 request intervenor to state, respectively, what it believes.are the functions of the Bonneville Power Administration '("BPA") and the Licensee.

Intervenorc objects to -these interrogatories on the grounds r .

L 1 See Licensee's First Set of Interrogatories and Requests to l Produce to.Intervenor,. May-3, 1983 at 3; Coalition for Safe I-Power Responses to Applicant's First Set of Interrogatories, May 23, 1983, at Interrogatory 18; and Coalition for Safe Power Updated Responses to. Applicant's First Set of L Interrogatories Dated May 3, 1983,. June 22, 1983, c. t -

interrogatories 7, -18, 19 and'23.

L' 2 Licensee's Second Set of Interrogatories and Requests to

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Produce to Intervenors, August 12, 1983, (" Licensee's Second

' Set.of Interrogatories") at 3-4.

3 -See Coalition-for Safe Power Responses to Applicant's Second Set of Interrogatories, August 26, 1983 ("Intervenor's Response ~ to Licensee's Second Set of Interrogatories") .

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.that they are overbroad. Intervenor'further asserts that because the functions of BPA and the Licensee are " wide and varied," answering such' interrogatories would be burdensome. Lastly, intervenor claims that the informa-

. tion sought in interrogatories 7 and 8 is not relevant to this proceeding.4 These objections are baseless. First, as the Licensing: Board made clear in its June 28, 1983, Memorandum and Order, the. legal standard governing the scope of discovery is not whether information sought is

" relevant" to the proceeding. Rather, it is whether the information sought appears calculated to , lead to the dis '

'covery of admissible evidence.5 Therefore, intervenor's claim that the information sought in interrogatories 7 and 8 is " irrelevant" as a matter of law provides no basis for intervenor's objections.

Second, as a factual matter it is difficult to recon-cile intervenor's claim that the functions of BPA and .

. Licensee are of no " relevance" to the instant proceeding with the . apparent underlying theories of intervenor's 4 Intervenor's Response to Licensee's Second Set of Interrogatories at interrogatories 7 and 8.

5 . Washington Public Power Supply System (WPPSS Nuclear Project No. 1); Docket No . 50-460-CPA; June 28, 1983, Memorandum and Order. (Granting Intervenor's Motion to Compel); slip op, at 2.

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s claims. Specifically,-intervenor has made the following assertions regarding the functions of BPA and the.

I LLicensee:

BPA isLnot a part.of WPPSS management

. . . . - Neither does BPA have the authority to control WPPSS finances .

. . Furthermore, Permittee has never stated in its submittals to the NRC that BPA could or might disapprove ,

financing for the plant. The. vague conclusory and unsubstantiated state-ment:that BPA support is essential to the. financing of.the WPPSS projects .

. . is'all Permittee offers. While this may.be Permittee's suggestion of

=what constitutes " good cause," for its actions, 4_t'is neither clear that-it is nor "; it supported.by fact.6

! The other two interrogatories seek documents exchanged between WPPSS, the Bonneville Power Administration.. . .

and other participants in WNP-1 Which contain'information directly. relevant

-to this' proceeding. WPPSS relies upon

, the judgment'of'the the-[ sic]'BPA to support _its contention that' good cause existed for deferral. Intervenor requests to view documen'ts: exchanged by WPPSS and BPA on that'very subject.7 Interrogatories 31, 32, 35'and 38 refer to the:ASLB Initial Decision (LBP 75-72, 2'NRC 922) upon.Which the construction' permit for_the WNP-1 was issued, the; role of the BPA and how it was established in the ASLB decision.

Applicant relies upon the BPA L

6 Coalition for Safe Power Amended Contention No. 2, February 11, 1983 Eat 2.

7 Coalition for Safe Power Motion to Compel Responses to First Set of Interrogatories to-Applicant, May 18, 1983 at 3.

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5-recommendation:as the basis-for the-additional-extension request at issue in this' proceeding.- .The : .

. interrogatories as they seek to establish the-legal basis:for Applicant's reliance on the BPA recommendation concern issues which

-are' properly discoverable.8~ '

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Interrogatories 5 and 6. seek material ,

used by the BPA to prepare-the WNP-1 and WNP-3 decision' documents, both of which bear on the continued construc-tion of WNP-1 and Which are detailed and useful' analyses. -Applicant seeks to rely upon-the.BPA recommendation as'the reason for its-construction delay stating that BPA has ultimate authority:over the plant.. The origi- '

nal documents, studies and so forth used'to prepare these analyses '

clearly form the basis for the case -

, . being made by'the Applicant.

However, Applicant.is unable or un-willing~to; provide the' materials

=which it claims have ultimate authority thus shielding itself and

- the decisions-from scrutiny.9 i At-bottom, intervenor has challenged Licensee's show-

'ing of good cause by raising in its. amended supplemental

. petition to intervene,.and reaffirming in numerous subse-quent. pleadings, the contention that the BPA recommenda-t' ion regarding WNP-1 does not provide an adequate basis

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for a showing ~of good.cause. As an ancillary claim, it d

l also.apparently believes that the Licensee has erroneously-8 -Coalition for Safe Power Motion to Compel Answers to Second

. Set ofLInterrogatories to Applicant, July 13, 1983 at 1.

19. -Coalition ~for Safe Power Motion to Compel' Answers to Third Set of Interrogatories to Applicant, August 22, 1983 at'3-4.

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asserted that'BPA has ultimate authority.over WNP-1. By .

making <these assertions,.intervenor has raised as.an issue

. in :this proceeding the respeciive functions of BPA and s Licensee.- Thus, it may not now. contend:that discovery.

' requests addressed to it'which' seek its position and sup-porting bases concerning this issue.are irrelevant to this proceeding. To the' contrary, understanding intervenor's position as to the roles of BPA and. Licensee is essential

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to understanding a: key element of intervenor's case.

La stly , intervenor's claim .thct interrogatories 7 and 8 are burdensome and overbroad should be rejected. Such-interrogatories do not require intervenor to prepare an r exhaustive analysis of the respective roles of BPA and

' Licensee.. Rather, they seok only to elicit from inter-

'venor its position in this proceeding as to the respective l-' roles of.those two organizations. Interrogatories are i

! proper if:they seek'to narrow the issues and ascertain the basis for a claim so that the : Licensee is able to respond to it.lO Interrogatories 7 and 8 are intended to do ~ just L that'. Accordingly, the Board should compel intervenor to l:

[ respond to_them.

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10 - Pennsylvania Power & Light Co. (Susquehana Steam Electric l

Station, Units 1 and 2), ALAB-613, 12 NRC 317, 334-35 (1980);

Northern States Power Co. (Tyrone Energy Park Unit 1), LBP-

! 77-37, 5 NRC 1298, 1300-1301 (1977). <

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e-e 7-Interrogatory 16 Interrogatory 16 states, as follows:

In response to1 Interrogatories 20, 21

' and 22i of Licensee's First Set of

. Interrogatories you stated what you i meant by the term " reasonable-period .

of time," what factors should be con-sidered When-determining if a re-quested construction permit is for a

" reasonable period of time".and what

, would constitute a " reasonable period of time" in the case ~of WNP-1.- On June :22, 1983,'you set forth in your

- Response tol Licensee's Motion to compel'the basis for your' responses to thoca. interrogatories-and: stated that

! you would-again update your response.

l Provide 7that' updated response.

Intervenor responded by stating.:that its updated response, will be provided in the.next update.ll It did not state when that. update will be provided or What, ~if any, events would have to occur before.such'information is provided.

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As a result, Licensee now urges the Board to issue an Order' compelling:intervenor to provide the-long-awaited

-update'and to thereby establish a date certain (10 days following the issuance of an Order granting this Motion to compel) by

Which. time such information must be provided.

LAbsentisuch an Order,' Licensee will have no means by Which to.be sure.that.intervenor provides this information in-a 2

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manner sufficiently timely.to enable Licensee-to respond tofit.

11 ~Intervenor's Response to Licensee's Second Set of Interrogatories-at Interrogatory 16.

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.. -g-J LInterrogatories 24 and 25

' Interrogatories 24 and 25 state, as follows

24. Identify ~all documents in your

.-possession obtained from BPA concern-ing'the_ delay of WNP-1 and state When and.from whom.you obtained each of these documents.

25. Identify all documents in your possession.obtained from any source other than BPA .concerning the delay of WNP-1 and state ~when and from whom you obtained each of these documents.

Intervenor objects to the portions of these inter. aga-tories Which seek information as to When and from Whom such documents were received, claiming again that such a request is burdensome-and has no relevance to this '

-proceeding.12 Licensee requests that the Board issue an Order com-

, .pelling intervenor to1 provide this information. Knowing

~ when and from Whom a document was obtained by intervenor i .w ould be of particular value in evaluating the weight and l

validity of that document, especially.in the case of draft documents upon which intervenor may be relying. In addi-tion, knowing when intervenor received a particular docu-ment would be valuable in understanding and responding to intervenor's shifting-and. evolving claims made over the course of this proceeding. When viewed in this light, it i

1 - 12. Id.

d . at- Interrogatories at 24 and 25.

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t is. simply incorrect.to assert, as does intervenor, that these requests for information have no relevance to this proceeding.

Nor has intervenor made an adequate demonstration that providing such information would be~ unduly burden-some. There is nothing in the record to indicate how many documents fall within interrogatories 24 and 25 or why providing such information would be burdensome. Such an unsubstantiated and generalized objection fails to establish a grounds for refusing to respond to this discovery request.13 Lastly, . interrogatories 24 and 25 request that inter 2 venor identify and make available for inspection and copy-ing the referenced documents. Thus, in accordance with 10 C F.R. 2.740b(b), intervenor was required to identify those documents when responding to the interrogatories.

It failed to do so.-lAccordingly, the Board should require that it do so'now.

I III. Failure to Provide an Affidavit Contrary to Section 2.740(b) of the Rules of

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Practice, Intervenor's Response to Licensee's Second Set L

- of Interrogatories was not accompanied by an affidavit prepared by the individual-who was responsible for the responso. Should intervenor not. cure this defect in its

13. Susquehanna Steam Electric Station, supra, ALAB-613, 12 NRC at 323.(1980).

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.- response to this Motion to Compel, Licensee requests that the-Board order intervenor to provide an affidavit to accompany its response.

IV. Conclusion In light of the foregoing, Licensee requests that the Board issue an Order to compel intervenor to respond to Licensee's Request to Produce, to respond to interroga-tories 7,'8 and 16, and to respond in full to interroga-tories 24 and 25. The Board should further order that intervenor provide an affidavit to accompany its Response to Licensee's Second Set of Interrog} tor s.

Respect ful

/ submitted, '

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'Nichol s S. lleynolds Sanford L. Htrtman DEBEVOr: p E

,IBERMAN 1200 Sw,ien nth St., N. W.

Washington, D. C. 20036 (202) 857-9817 Counsel to Licensee September 12, 1983 c

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6 9-UNITED STATES OF AMERICA NUCLEAR REGULhTORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

.In the Matter.of )

)

WASHINGTON PUBLIC POWER ) Docket No. 50-460-CPA SUPPLY SYSTEM )

).

(WPPSS Nuclear Project No. 1) )~

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing

" Licensee's Motion to Compel" in the Jcaptioned matter .were served upon the following persons by deposit in the United States mail, first class, postage prepaid,'this 12th day L o f ' September, 1983:

f Herbert Grossman, Esq. Chairman, Atomic. Safety and

, Chairman, Atomic Safety and ' Licensing Appeal Board Licensing Board U.S. Nuclear Regulatory.

i .U.S. Nuclear Regulatory Commission 3 ' Commission Washington, D.C. 20555

' Washington, D.C. 20555.

Mitzi A. Young, Esq.

l 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 Commission Washington,. D.C. 20555

!~ , Washington, D.C. 20555 Chairman, Atomic-Safety and.

Dr. Jerry Harbour Licensing Board Panel Atomic Safety and Licensing .U.S. Nuclear Regulatory 2.

Board Commission

- U.S,-Nuclear Regulatory Washington, D.C. 20555 Commission

. . Washington, D.C. 20555 l.

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2-Mr. Gerald C. Sorensen Nicholas D. Lewis, Chairman Manager of 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. 20555 Portland, Oregon 97204 Sanfpd L. Hartma'n r

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