ML20082B476

Motion to Compel Discovery on Applicant Fourth & Fifth Sets of Interrogatories & Request for Production of Documents to Joint Intervenors Re Radiological Monitoring. Certificate of Svc Encl.Related Correspondence

ML20082B476
Person / Time
Site:	Harris
Issue date:	11/17/1983
From:	Oneill J CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8311210203
Download: ML20082B476 (10)

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00CKETED November 17, 1983 USNRC 5 518 ki:by UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION (('g.ECF ry BEFORE THE ATOMIC SAFETY AND LICENSING BOARh' D In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL and NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )

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(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

APPLICANTS' MOTION TO COMPEL DISCOVERY ON APPLICANTS' INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS TO JOINT INTERVENORS (FOURTH AND FIFTH SETS)

Pursuant to 10 C.F.R. S 2.740 (f) , Applicants Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency hereby move the Atomic Safety and Licensing Board

(" Board") to compel Joint Intervenors to respond promptly and in full to " Applicants' Interrogatories and Request for Production of Documents to Joint Intervenors (Fourth Set) " dated October 12, 1983,and " Applicants'~ Interrogatories and Request for Production of Documents to Joint Intervenors (Fif th Set)" dated October 25, 1983. As grounds for this motion, Applicants state that answers l to.the subject interrogatories were due on October:31, 1983 and 1/

I November. 14,~1983;~ no response has been filed _to date by_ Joint-Intervenors (i.e., CHANGE /ELP,'CCNC,_ Kudzu Alliance and Wells Eddleman).

[ 1/ 10 C.F.R. S 2.740b(b).

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l I. INTRODUCTION Joint Contentions IV, V and VI generally address the adequacy of Applicants' use of TLD's, calibration and maintenance of air samplers and radiological monitoring. On October 12, 1983, Applicants served their second round of Interrogatories and Request for Production of Documents with respect to Joint Conten-tions IV and V on the Joint Intervenors. On October 25, 1983, Applicants served their second round of Interrogatories and Request for Production of Documents with respect to Joint Contention VI on the Joint Intervenors.-2/

After Joint Intervenors failed to respond to. Applicants' discovery requests and failed to request an extension of time to respond, the undersigned contacted counsel for Joint Intervenors on November 15, 1983 to negotiate an extension of the time for-Joint Intervenors' responses. At that time, Applicants' counsel offered to extend the time for responses to the Interrogatories and Requests for Production on Joint Contentions IV and V until November 30, 1983,and.the time for responses to the Interrogatories and Requests for Production on Joint Contention VI until December 15, 1983. Both extensions would have provided an additional thirty days to the time provided by the Commission's rules. Joint Intervenors' counsel rejected Applicants' proposal and stated that Joint. Inter-t .

venors intended to petition the Board for postponement of all dis-l covery on Joint Contentions IV, V'and VI until after the completion l

of the hearing on environmental contentions, presently scheduled to begin on January 24, 1984.

2/ Applicants first set of interrogatories on these contentions was-Tiled on January 31,- 1983; Joint Intervenors responded on March 29, icontinued.next page).

For the reasons discussed below, Applicants submit that Joint Intervenors' failure to respond to Applicants' discovery requests is inexcusable and that the Board should compel Joint Intervenors to respond promptly and in full to each Interrogatory and Request for Production on Joint Contentions IV, V and VI.

II. DISCUSSION Joint Intervenors have taken advantage of the discovery provisions set forth in the Commission's rules to serve on Applicants and on the Staff numerous interrogatories and requests for production of documents regarding Joint Contentions IV, V and VI. See " Joint Intervenors' Interrogatories to Applicants on Contentions IV, V and VI (First Set) ," (June 27, 1983); " Wells Eddleman's Interroga-tories to NRC Staff (First Set) ," (May 6, 198 3) . Applicants have responded in a timely fashion to Joint Intervenors' interrogatories and have produced numerous documents for inspection at Joint Inter-venors' convenience. See " Applicants' Responses to Joint Intervenors' General Interrogatories and Interrogatories on Contentions IV, V and VI to Applicants Carolina Power and Light Company, Et Al. (Frist Set)," (August 1, 1983). Nevertheless, when Applicants served their second round of discovery on Joint Intervenors, the Joint Intervenors chose simply to ignore the requests served upon them.

Joint Intervenors' failure to respond to Applicants' discovery requests is without any justification. Each of the requests pro-l

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pounded to Joint Intervenors is relevant to the concerns. raised in

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1983. Joint Intervenors' response to the first set of interrogatories was generally uninformative. See " Joint Intervenors Response to Applicants' Interrogatories and Request For Production of Documents-to Joint Intervenors (First Set)", especially at response to Inter-rogatories IV-1(a) , . IV-3 (b) , -IV-7 (a) , VI-1, VI-2 (a) , VI-4 (b) , VI-6 (c) ,

VI-7 (a) , (March 29, 1983).

Joint Contentions IV, V and VI. Indeed, Joint Intervenors have not claimed that the discovery sought is irrelevant or otherwise objectionable; instead, they have chosen not to respond in any

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way. A party from whom' discovery is sought is_not permitted to ignore discovery requests; each request must be answered or objected to in timely fashion. Pennsylvania Power and Light Company and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 N.R.C. 317, 322 (1980).

Joint Intervenors' stated desire to postpone discovery on-Joint Contentions IV, V and VI directly conflicts with the Board's rulings on discovery schedules. At the prehearing conference on February 24, 1983, Joint Intervenors agreed that discovery cn1 Joint Contentions IV, V and VI, which was authorized by the Board's Memo-randum and Order of September 22, 1982 (16 N.R.C. 2069), would continue while discovery on Joint Contentions I and VII would-be postponed until the completion of the environmental hearing. Tr. at 477; see also Conservation Council Response to Applicants' Revised Proposed Schedule (March 11, 1983).-4/ After considering all parties' comments on the timing of discovery, the~ Board ordered a schedule that provides for discovery on Joint Contentions IV, V and VI to continue prior to the beginning of the hearing on environmental contentions. Memorandum and Order (Reflecting Decisions Made Fol-lowing Second Prehearing Conference),(March 10, 1983).

3/ Even if the rcquests were somehow objectionable, which they clearly-are not, Joint Intervenors have waived'any objections they'might have asserted by their failure to make a timely. response. See Perry v. Golub, 74 F.R.D. 360, 363 (N . D . Ala. 1976). j 4/ It was recognized at the time of the prehearing. conference that

-discovery on Joint Contentions IV,~V and VI should be allowed.to proceed

-because Applicants had indicated the likelihood that theylwould move'for early summary disposition on those contentions.

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l Joint Intervenors now belatedly assert that they will be unable to comply with discovery requests on Joint Contentions IV, V and VI prior to completion of the environmental hearing, due to the involvement of Mr. Eddleman in preparing for that proceeding. This is simply no excuse for failure to comply with the requirements of discovery. Joint Intervenors voluntarily entered this licensing proceeding; in doing so they undertook to fulfill the obligations of a party to the action, including com-pliance with discovery requests. Their complete failure to fulfill discovery obligations is manifestly unfair to the other parties to the proceeding. Northern States Power Co. (Tyrone Energy Park, Unit 1) , LBP-77-37, 5 N.R.C. 1298, 1300-01 (1977).

In addition to being contrary to the Board's order, Joint Intervenors' claim is unreasonable in light of the circumstances of this proceeding. The environmental hearing is not scheduled to commence for over two months. Joint Intervenors have responsibility for only one contention to be addressed at that January hearing--

Joint Contention II. The interregnum between this date and the Board's ruling due December 15, 1983 on Applicants' Motion for Summary Disposition on Joint Contention II is a reasonable-time for-responding to Applicants' interrogatories.

Applicants are well aware that Mr. Eddleman has other contentions for which he is responsible in the uocoming environmental hearing. However, he is only one of four participants in Joint Intervenors and it is'not unreasonable to expect that the other three organizations (each with counsel) will comply with the obliga-tions of Joint Intervenors in this proceeding with respect to Joint Contentions IV, V and VI. Indeed, Mr. Eddleman's own commitment to

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i the proceeding at this time should not be over-

I whelming as discovery responses on the environmental issues were due to be filed on November-14,1983.-6/ '

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Furthermore, looking to 1984, the demands of

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this proceeding will increase, not decrease. The hea' ring will be immediately followed by a period-of time to prepa$e proposed findings and discovery on safety issues. Joint,, -

x .w Intervenors have five admitted contentions on safety, issues.

Because of t;he intensity of the schedule which- we - face y .

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in 1984, Applicants plan to file a number of motions for f v

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summary disposition of safety-related contentions prior to ,

the deadline otherwise established by the Board..~7/ Joint Inter-- V venors were put on notice of Applicants' intention during the-

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j e S Prehearing Conference in February. Joint Intekvenors' failure r .

to respond to discovery is a delaying tactic which"is unfaii to[

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r Applicants, is detrimental to an orderly schedule for disposition- ,

of issues and should not be allowed. -

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6/- Memorandum and Order-(Modifying Schedule on Environ $ ental 4 '/

Contentions) , at ,4 (October- 25, 1983). ;7 n'.' ,j, ',,

7/. See Memorandum and Order (Reflecting Decisions Make Following Second Prehearing . Conference) , 'at '7 (March 10, .1983) , ,'

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1. III. CONCLUSION ..

7 For'the ' reasons discussed above, Applicants respectfully request,that the Board compel Joint Intervenors to respond in full to' every Interrogatory and Request for Production propounded

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'to them in Applicants' Fourth and Fifth Sets of Discovery Requests '

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within ten (10) days of the Board's Order to th t effect.

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espectfully'ptbmitted, s

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{ ,0 Jc hn H. O'Neill, Jrl

x. SF AW, PITTMAN,~ POTT 3 E TROWBRIDGE 1 00 M Street, N.W.

ashington, D.C. 20036 Telephone: ' (202) 822-1000 Richard,E. Jone,s .I Samanth'a Francis Flynn-CAROLINA POWER & LIGHT COMPANY

/ , P.O. Box 1551 -

~ Raleigh, North Carolina 26602

, Telephone: (919) 836-7707 Dated: November 17, 1983, /-

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

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CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL and NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that " Applicants' Motion to Compel Discovery on Applicants' Interrogatories and Request for Production of Documents to Joint Intervenors (Fourth and Fifth Sets)" were served this 17th day of November,1983 by deposit in the United States mail, first class, postage prepaid, to the parties on the attached Service List.

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i b l Jofn H. O'Neill, Jr.

Dated: . November 17, 1983 b _ _J

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

'In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL l and NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

P SERVICE LIST

! i Janes L. Kelley, Esquire John D. Runkle, Esqui e i Atmic Safety and Limnsing Board Conservation Council of North Carolina U.S. Nuclear Regulatory Camission 307 Granville Road .

Washington, D.C. 20555 m==1 Hill, North Carolina 27514 '

Mr. Glenn O. Bright M. Travis Payne, Esquire Atmic Safety and Licensimy Board Wlalatein and Payne U.S. Nuclear Regulatory Ca mission P.O. Box 12607 Washington, D.C. 20555 Raleigh, North Carolina 27605 Dr. Janes H. Carpenter Dr. Richard D. Wilson Atmic Safety and Licensing Board 729 Hunter Street U.S. Nuclear Regulatory Ctenission Apex, Ibrth Carolina 27502 4 Washington, D.C. 20555 Mr. Wells WMlanan j Charles A. Barth, Esquire- 718-A Iradall Street.

Janice E. Moore, Esquire Durhan, North Carolina 27705 Office of Executive Iegal Director U.S. Nuclear RegulatoryPiamion Richard E. Jones, Esquire

Washington, D.C. 20555 Vice President arzi Senior Counsel Carolina Power & Light Capany i Docketing and Servi m Section P.O. Box 1551

, Office of the Smwi.ary Raleigh, North Carolina 27602.

. .U.S. Nuclear Regulatory Ca mission . .

Washington, D.C. 20555 Dr. Phyllis Ictchin 108 Bridle Run Mr. Daniel F. Read, Praairlartt chr=1 Hill, North Carolina 27514 OIANGE/ELP 5707 Waycross Street Dr. Linda W.'Little 4

-Paleigh, North Carolina 27606 Governor's Waste Managunent Board 513 Albanarle Building 325 North Am1iahwy Street.

Raleigh, North Carolir.a 27611

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Bradley W. Jones, Esquire U.S. Nuclear Regulatory Ocxrmission Region II 1 101 Marrietta Street Atlanta, Georgia 30303 j Ruthanne G. Miller, Esquire i Atcznic Safety and LimiM Board Panel U.S. Nuclear Regulatory Ocnnission Washington, D.C. 20555 Mr. Robert P. Gruber Executive Director Public Staff - NCUC P.O. Box 991 Raleigh, North Carolina 27602 l

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