ML20148A203
| ML20148A203 | |
| Person / Time | |
|---|---|
| Site: | Green County  |
| Issue date: | 12/15/1978 |
| From: | Goodhope A Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7812280265 | |
| Download: ML20148A203 (17) | |
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NRC PUBLIC DOCUMENT ROOM y
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g: 18 9]3W-2' UNITED STATES OF AMERICA U NUCLEAR REGULATORY COMMISSION g C'hh J In the Matter of POWER AUTHORITY OF THE STATE ) Docket No. 50-549 0F NEW YORK )
) (Health and Safety)
(Greene County Nuclear Power Plant) )
BOARD ORDER CONCERNING DISCOVERY On October 31, 1978, the NRC Staff filed a " Motion for Order Compelling Discovery and Permitting Supplementation of Testimony Upon Receipt of Responses." The motion was concerned with interrogatories served on October 2, 1978 to six intervenor parties. Three of the parties filed responses on November 1, 1978.1/ A Board Order dated November 15, 1978 granted the Staff motion as to the remain-ing three intervenor parties who had not yet responded.2/
On November 21, 1978, Staff renewed its motion for an order compelling discovery, this time directing its atten-tion towards the inadequacies of certain of the interrogatory responses filed on November 1, 1978. Counsel for CCSC, MHNO and CPHV responded to the renewed motion on November 29, 1978.
-1/ Columbia County Survival Committee (CCSC), Shirley A.
Brand and Mid-Hudson Nuclear Opponents (MENO) and Citizens to Preserve the Hudson Valley (CPHV).
2_/ Cementon Civic Association (CCA), Greene County, N. Y.,
er al., and Columbia County, N. Y.
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- 2-I. Discovery -- General
'I 1The use of the discovery process is governed by the Commission's regulations contained in 10 CFR 2.740'through 2.744. Reference is also made to the discovery process in 10 CFR 2.707 dealing with-the failure of parties to comply,.
inter alia,_with discovery orders entered by the~ Board, pursuant to 10.CFR 2.740.
In general, the discovery process is intended to insure that the parties to the proceeding, including Applicant and t
Staff,.will have access to all relevant, unprivileged infor-mation prior to the hearing, and that'the primary objectives of the discovery process include the more expeditious con-duct of the hearing itself,.the encouragement 'of settlement between parties .and greater fairness in adjudication.2!
As to permissable areas of discovery, it is clear that interrogatories seeking specification of the facts upon which a claim or contention is based are wholly proper, and that a party may be required to answer questions which' attempt 3,/ For a more complete discussion of discovery and the obligations of the parties, see Boston Edison Company (Pilgrim-Nuclear Generating Station, Unit 2) LBP-75-30, Docket No. 50-471, 1 NRC 579, pp. 581-585 (June 6, 1975).
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to ascertain the basis for his claim or, for example, what deficiencies or defects were claimed to ' exist with respect to a particular situation or cause.b!
The Commission's Rules on intervention presume that the parties had specific factual bases for their contentions
[see Section 2.714(a)] . Where the discovery request seeks to determine the factual basis for the contention, the intervenor is obliged to provide a complete, unevasive answer to the best of his or her ability.EI An evasive or incomplete answer or response shall be treated as a failure to answer or respond. See 10 CFR Section 2.740(f)(1).
La censidering the disposition of the discovery motions and objections, the Board must balance the interests and rights of the litigants to obtain information for the proper preparation of their cases, as against protecting the rights of the adversary parties against undue burden or harrassment.
4/ Second Edition, Section See Moore, 26.56[3] andFederal
[4), at Practice'160 pp. 26 through 26-179.
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While parties must furnish whatever information is avail-able to it, ordinarily it will not be required to make research and compilation of data not readily known to them. (See Moore, supra, 933.20 and cases cited at pp.33-103 to 33-105.
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1 A further consideration is the matter of scheduling.
'The. schedule proscribed by the Board in its Order of 1 i
August 1,1978 requires that answers to discovery requests be made within 14 days of service of such requests unless I there is obj ection. Parties were permitted 5 days from date of service to object to any discovery requests. The NRC Staff served a list of. interrogatories on October 2, 1978. None of the involved parties objected to the interrogatories ~or responded in a timely manner.
The Board has reviewed the NRC Staff interrogatories,.
the responses, and the pleadings on the motions to compel.
The Board considers the Staff's October 2, 1978Linterrog-atories to be reasonable and within the bounds of permis-sible discovery. See 10 CFR 52.740(b)(1) . The parties are reminded and advised that the main requirements of a contention are specificity and factual basis. At the special prehearing conference dealing with motions for summary disposition of contentions , absent a showing of good cause otherwise, interrogatory responses may well serve as summaries of factual bases for contentions.
As regards the specific responses, NRC Staff contends that many failed to provide specific identification of matters requested, and f. hat certain themes run through the responses which render them incomplete, evasive or both.
Counsel for MENO, CCSC, and CPHV argtas that all interrog-atories have been answered, stating that: " Discovery
... . is limited to information and documents which a party has. The respondents have already furnished these."
Counsel further contends that Staff is now, in the guise of compelling discovery, wrongfully seeking to impose an i additional burden on intervenors of doing original research to develop a data base. The Board's rulings on specific interrogatories follows. i l
II. RULINGS ON MOTIONS TO COMPEL FURTHER RESPONSE TO SPECIFIC INTERROGATORIES 1
A. Columbia Countv Servival Committee (CCSC) and Arthur Reuter.
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- 1. Interrogatorv G-5 Intervenor's response does little more than identify the documents used as bases for con-tentions.. This question was asked and answered l
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without objection under interrogatory G-4.
The thrust of G-5 was to specify deficient
-portions as related to each contention and :
to explain why a deficiency exists. If.the alleged defect is that the e tbject was not addressed at all, then the response should indicate that. If the deficiency is other than a total lack of reference, then the deficient portions should be identified along with an explanation as to why they are deficient. Intervenor's reference to deficiencies in NRC Staff's responses to interrogatories is misplaced. If Staff's responses were deficient, intervenors could have taken appropriate action to request l
correction. Staff's motion to compel response to interrogatory G-S is granted.
- 2. Interrogatory S5a-1 l
Parties are generally not required to conduct research or compile data not readily known or available to them. It is the Board's opinion that such information as requested by Staff in
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.7 this interrogatory would be an' undue burden to compileRif not already known to inter--
.venors.
If individual CCSC members have made'obser-vations and gathered information relative to'the contention,.the individuals'should be identified and any information gathered should be supplied. To this extent Staff's motion to compel response on S-5a-1 is granted.
3.- Interrogatory S9-1 Intervenor's contention refers specifically to accidental radiological releases and-implied'in their contention is that the risk to water supplies is unacceptable.
Intervenors fail however to identify specifically the accidents which will result in such unacceptable consequences.
If intervenors know which accidents will result in the consequences described in contention 9, they should say so. If not, that should also be stated. Intervenor's-
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reference to-anticipated discharges from normal operations is misplaced. Staff motion to compel response to S-9-1 is granted.
- 4. Interrogatory S9-2:-
Intervenor's response to this interrogatory.
is ' that the contention is based on "the appli-cation of common sense to information in the P SAR, SER, and Supplement No. 1 and the inability or refusal of the-NRC Staff to answer interrogatories on this issue." In the Board's view the response is incomplete.
Common sense as a basis for a contention is laudable but not of much probative value with-out specification as to where and how it is being applied. Intervenor's statement that contention 9 is based in part on the inability or refusal of the Staff to answer interrogatories on the issue is misplaced. Interrogatories are generally based on contentions not vice-versa. .
If Staff did not provide satisfactory responses to interrogatories, intervenor should have sought remedy at the appropriate time. This
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was not done. Staff motion to compel response to interrogatory S-9-2 is granted.
- 5. Interrogatory B-6-3 Intervenor's reply states'that "The PSAR does not contain in any meaningful detail _ the infor-mation required by Section II of Appendix E to 10 CFR 50" and further stating . . . "It is all surprise, speculation and generalities."
La the opinion of. the Board, this response is incomplete.- Intervenor should specify which of the sub-parts of Section II areinot being.
met. Each Applicant for a construction permit is required by 10 CFR 50.34(a) to include in its PSAR a discussion of preliminary plans i 1
for coping with emergencies. Appendix E establishes minimum requirements for emergency plans and Part II of that Appendix lists the items to be included and described in the PSAR.
Considering.the language in Appendix E, inter-venors should identify the specific require-ments of Section II which are not being satisfied. Staff motion to compel response to interrogatory S-9-2 is granted.
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B. Shirlev Brand and Mid-Hudson Nuclear Opponents (MHNO)
- 1. Interrogatory G-5
-Staff motion to compel response is granted for the same reasons set forth in Section II. A.1 of this Order.
- 2. Interrogatory 1-2 (identified as B1-2 in MHNO response)
Intervenor's answer is not responsive. This interrogatory calls for a yes or no answer to portions (a)'and (b). Elaboration on the response is called for in subsequent interrogatories. Staff motion to compel a response is granted.
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- 3. Interrogatorv 1 (b)-1 If the sole basis for intervenor's assertion i that highways and public transportation with-1 in the vicinity of the plant are not adequate to evacuate the LPZ is that there is no "public transportatio[ and the only document relied upon is a county highway map, then
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intervanors need respond no further. Staff motion to compel further response is denied.
Intervenors have, however, the right and indeed the duty to augment or amplify their response if it so requires.
- 4. Interrogato ry 1 (c) 1 Latervenor's answer is evasive. Interroga-tories propounded to determine the basis for contentions is a permissable area of discovery.
Intervenor's reference to the burden of proof is misplaced. Although it might well be that the burden of proof on Applicant and Staff is different from the burden on intervening parties, the burden of responding to legitimate discovery questions seeking specification of the bases for intervenor contentions is i clearly on the proponent of the contention.
Staff motion to compel response is granted.
- 5. Interrogatories 3 (d)-1 through 3 (d)-4 Each cri these four interrogatories is directed toward specification of the facts upon which
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J intervenor's contention 3 is based. This is a permissable area of discovery. Inter-venor's response is.neither specific nor
.l complete. Staff's motion.to compel.further l i
response is granted.
C. Citizens to Preserve the Hudson Valley l
- l. Interrogatory G-5 l Staff motion to compel response is granted.
See II. A.1 of this Order and reasons contained therein. H
- 2. Interrogatorv SI.A Although some. specification in intervenor's response might be desirable, the Board feels that intervenor has defined what it means by " sufficient information." Staff motion ,
i to compel further response is denied. i l
- 3. Interrogatory SI.A-2 Intervenor's answer is non-responsive. If they know the date when Applicant requested' -.
that the size of the exclusion area be ,
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reduced, they should provide that date. If not, they should so state. Staff motion to compel response is granted.
- 4. Interrogatorv UI.A-1 through UI.A-3 ,
These interrogatories are basic to the deter-mination of intervenor's basis for unstipulated contention I.A. Intervenor's answers are either not responsive or incomplete. It might well be that future Staff documents might affect intervenor's position but it is not logical that future documents are currently serving as the bases for contentions. Scaff motion to compel response is granted.
- 5. ,Interro gato ry SI.B.1-2 Intervenor's response is incomplete. The Board agrees with Staff's argument that mere reference to a document cannot supply the basis for an assertion. Intervenor should specify which portion or portions of the 66 page Regulatory Guide 1.59 (Revision 2 August 1977) state specifically
the bases for the assertion that the matters identified in response to. interrogatory SI.B.1-1 preclude a finding that the public health and safety will not be endangered.
Staff motion to compel response is granted.
- 6. Interrogatory SI.B.2-2 Appendix A of 10 CFR 50 contains, inter alia, 64 overall requirements for the design of nuclear power plants. Intervenor's reference to Appendix A without any further specification or explanation as to how that reference provides a basis for intervenor's -
assertions is not considered to be a satis-factory response. Staff motion to compel response is granted.
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- 7. Interrogatorv SI.B.3-2 The Board is of the opinion that mere -
reference to a 15 page section of the SER is not a satisfactory response to a request to " state specifically the bases for . . .
assertions." Intervenor should identify the r
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specific references and explain how chose references provide a basis for the assertion.
Staff motion to compel response is granted.
- 8. Laterrogatorv SI.B.4-2 Identification of a multipage 20 paragraph section of Staff's SER as the specific basis for.an assertion is not a satisfactory response. For the reasons given above,. Staff ,
motion to compel response is granted.
Mere reference to a document is not. considered to be an adequate response.
- 10. Interrocatories SI.B.5-1 and SI.B.5-2 Both of these interrogatories are fundamental to the determination of the specific bases >
for contention I.B.5. Intervenor's reference to Lurden of proof is misplaced at this stage t in the proceedings. Merc. reference to documents is not adequate. Staff motion to compel response is granted.
- 11. Interrogatories SI.B.6-1 through SI.B.6-3 Latervenor's responses are too general and incomplete. Reference to burden of proof is misplaced. Latervenors should' identify and describe the location of the specific equipment that will contain radio-cobalt buildup, if they know. If they do not know, they should say so. Intervenors should further specifically identify those portions.
of SER 512 that they indicate identifies "PSAR deficiencies which . . . exist with regard to the ability or adequacy of plans to assure that radio-cobalt buildup will no": cause 10 CFR 20 occupational exposure limits to be exceeded."
Intervenor's answer to S.I.B.6-3 is non-responsive. Staff motion to compel responses is granted.
l l Intervenors are given 10 days from service of this Order to comply therewith.
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1 FOR THE ATOMIC SAFETY AND LICENSING BOARD
& ^ hACQ Andrew C. Goodhope, Chairmda Dated at Bethesda, Maryland,
! this 15th day of December, 1978.
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