ML20084J882
| ML20084J882 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 05/08/1984 |
| From: | Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL, NUDOCS 8405110014 | |
| Download: ML20084J882 (8) | |
Text
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RELATED CORRESPONDENCE
' /kl0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION MI TO g.y Before the Atomic Safety and Licensing Board
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In the Matter of
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3 Philadelphia. Electric Company Docket Nos. 50-352 0
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50-353OL (Limerick Generating Station,
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Units 1 and 2)
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APPLICANT'S MOTION TO COMPEL ANSWERS TO ITS FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS TO CITY OF PHILADELPHIA AND LIMERICK ECOLOGY ACTION ON SEVERE ACCIDENT CONTENTIONS OR, ALTERNATIVELY, TO LIMIT THE PRESENTATION OF EVIDENCE IN CHIEF AND CROSS-EXAMINATION Preliminary Statement on April 9,
1984, Applicant served upon the City of Philadelphia
(" City")
and Limerick Ecology Action
(" LEA")
its first set of interrogatories and request for production of documents relating to the severe accident contentions.
The City of Philadelphia's response was served on Ap.il 27,
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1984 and received by Applicant's counsel on April 30, 1984, t
LEA's response was served April 30, 1984 and received May 1, 1984.
Many of the answers provided, particularly by the l
City of Philadelphia, are either unresponsive or indetermi-nate, indicating that certain analyses have not yet been l
j performed and may or may not be performed at some 'later date.
In view of the advanced stage of the proceeding, Appli-cant moves that the City and LEA be compelled to provide
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' full and responsive an' wers or, alternatively, that they be s
barred from introducing the subject matter of the interroga-tories and request for production of documents into evidence either by way of their cases in chief or cross-examination.
Further, in view o'f the obvious time constraints, Applicant requests that the City and LEA be required to respond to this motion by filing an answer to be received in hand no later than May 11, 1984.
For the reasons discussed more fully below, Applicant's motion to compel or to limit the evidence should be granted.
4 Argument A number of the responses by the City and LEA indicate that information is not yet available or certain analyses have not yet been performed.
It is unclear whether or when such information will become available or such analyses will be conducted.
For example, the City's pnswer to Interroga-tory 2 states that it "does not know at this time whether it will present testimony on the NEPA environmental impact issues related to a severe accident."
In responding to Interrogatory 3, the City states that it will rely upon "any new evacuation study, any irrelevant
[ sic]
material CRAC runs deems [ sic) that may be done by the City or others 1/
As
- required, Applicant's counsel has attempted to resolve its differences informally with intervenors'
- counsel, but has been unsuccessful except as to Interrogatory 33 with the City and Interrogatories 4, 5, 6 and 12 with LEA.
. and/or any other documents that are subsequently deemed relevant to the DES /FES and the requirements of NEPA."
Similarly vague and unresponsive answers are made to Inter-rogatories 4, 5,
9, 10, 11, 12, ~14, 15, 18, 20, 21, 22, 23, 28 and 30.2_/
~
Likewise, LEA has answered Interrogatories 1 and 2 by stating that it "has no present intention to present an expert witness" or "to present a factual witness" on the subject matter of the interrogatories.
Like the City, LEA has given other answers stating the possibility that it will rely upon other information or analyses not yet available, i.e.,
in its answers to Interrogatories 3,
7 and 23-33 (indicating no intention of presenting a
direct case concerning these contentions "[a]t the present time").
Both l
the City and LEA should be compelled to answer these inter-l l
rogatories completely, or be barred from presenting any evidence either by way of their cases in chief or cross-examination on the related subjects.
Additionally, other responses by the City and LEA are clearly inadequate.
In answer to Interrogatory 6, the City claims that its discussions with its consultants are t
a 2/
Under these circumstances, the obligation of the City and LEA to supplement its answers under 10 C.F.R.
l S2.740 (e) will not provide Applicant with adequate protection because there is no guarantee that intervenors will promptly amend their answers to permit Applicant adequate case preparation.
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l l
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privileged.
Such a blanket claim of privilege may not be permitted because there has been no showing that such communications were "for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (iii) legal assistance in some legal proceeding."1!
Under the there has been no showing whatever that such circumstances, communications were of a legal rather than factual nature so as to be wholly privileged.O In response to Interrogatory 13, the City states that it has no " direct knowledge" of matters beyond its bound-aries.
It should be required to divulge information from whatever source if it is responsive to the interrogatories.
Further, the City refers to completed evacuation plans "in place in Philadelphia" which it has not provided in response to Applicant's request for documents.
These should be 4.
furnished.
t 3/
Consumers Power Company (Midland Plant, Unit.s 1 and 2),
l LBP-83-70, 18 NRC 1094, 1098 (1983).
~
4/
A party objecting to the. production ~of documents or discovery of information on the grounds of attorney / client privilege must make the same showing needed for a protective order.
In particular, a party claiming privilege has the burden of demonstrating that it has specifically described the.information or i
documents sought to be withheld and the precise reason why the privilege exists.
The City's blanket assertion I.
of privilege is therefore invalid.
Long Island l
l Lighting Company (Shoreham Nuclear Power Station, Unit
i
. Finally, in response to Interrogatory 30, the City states that it has not provided information because the computer runs it performed "will not be the subject of testimony, if any, that the City may file. "
This is not a proper objection, inasmuch as Applicant is entitled to relevant information whether or not the City chooses to offer it in evidence.
Conclusion Given Applicant's need to prepare its case based upon an understanding of what allegations it must meet, the Board should compel the City of Philadelphia and LEA to provide the requested information and documents as soon as possible.
The Board should further order that neither the City nor LEA may present evidence in its case in chief nor cross-examine as to any information or document not previously furnished to Applicant by one week prior to the' commencement of the hearing (i.e., May 15, 1984).
Respectfully submitted, g
1 CONNER & WETTERHAHN, P.C.
- /
Mark J. Wetterhahn Counsel for the Applicant i
May 8, 1984 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 84 hay to NO:32 In the Matter of
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50-352'fj,.56[g/,l,lj
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IgS, ;
Philadelphia Electric Company
)
Docket Nos.
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50-353 (Limerick Gener6 ting Station,
)
Units 1 and 2)
)
CERTIFICATE OF' SERVICE I hereby certify that copies of " Applicant's Motion to Compel Answers to its First Set of Interrogatories and Request for Production of Documents to City of Philadelphia and Limerick Ecology Action on Severe Accident Contentions or, Alternatively, to Limit the Presentation of Evidence in Chief and Cross-Examination" dated May 8,
1984 in the captioned matter have been served upon the following by deposit in the United States mail this 8th day of May, 1984:
- Lawrence Brenner, Esq. (2)
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washingtoq, D.C.
20555 l
Washington, D.C.
20555 l
Docketing and Service Section l
- Dr. Richard F. Cole Office of the Secretary Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission g
U.S. Nuclear Regulatory Washington, D.C.
20555 Commission l
Washington, D.C.
20555
- Ann P. Hodgdon, Esq.
Counsel for NRC Staff Office
- Dr. Peter A. Morris of the Executive Atomic Safety and Legal Director Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission e
Commission Washington, D.C.
20555 Washington, D.C.
20555
- Hand delivery
.. Atomic Safety and Licensing Angus Love, Esq. 107 East Board Panel Main Street Norristown, PA U.S. Nuclear Regulatory 19401 Commission Washington, D.C.
20555 Robert J.
Sugarman, Esq.
Sugarman, Denworth &
Philadelphia Electric Company Hellegers ATTN:
Edward G. Bauer, Jr.
16th Floor, Center Plaza Vice President &
101 North Broad Street General Counsel Philadelphia, PA 19107 2301 Market Street Philadelphia, PA 19101 Director, Pennsylvania Emergency Management Agency
- Mr. Frank R. Romano Basement, Transportation 61 Forest Avenue and Safety Building Ambler, Pennsylvania 19002 Harrisburg, PA 17120 Mr. Robert L. Anthony
- Martha W.
Bush, Esq.
Friends of the Earth of Kathryn S. Lewis, Esq.
the Delaware Valley City of Philadelphia 106 Vernon Lane, Box 186 Municipal Services Bldg.
Moylan, Pennsylvania 19065 15th and JFK Blvd.
Philadelphia, PA 19107 Limerick Ecology Action P.O. Box 761 762 Queen Street Spence W.
Perry, Esq.
Pottstown, PA 19464 Associate General Counsel Federal Emergency
- Charles W. Ellictt, Esq.
Management Agency Brose and Postwistilo 500 C Street, S.W.,
Rm. 840 1101 Building Washington, DC 20472 lith & Northampton Streets Easton, PA 18042 Thomas Gerusky, Director Bureau of Radiation Zori G. Forkin, Esq.
Protection Assistant Counsel Department of Environmental Commonwealth of Pennsylvania Resources l
i l
Governor's Energy Council 5th Floor, Fulton Bank Bldg.
l 1625 N.
Front Street Third and Locust Streets Harrisburg, PA 17102 Harrisburg, PA 17120 Jay M. Gutierrez, Esq.
l U.S. Nuclear Regulatory l
Commission l
P.O. Box 47 Sanatoga, PA 19464 t
- Hand delivery l
- Federal Express l
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3-James Wiggins Senior Resident Inspector U.S. Nuclear Regulatory Commission P.O. Box 47 Sanatoga, PA 19464 Timothy R.S. Campbell Director Department of Emergency Services 14 East Biddle Street
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West Chester, PA 19380
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