ML20210C668

Applicant Motion to Compel Answers to Interrogatories by State of Ut.* Board Should Compel State to Produce Info Requested by Applicant Interrogatories 2-4 & 6 Re Utah O. with Certificate of Svc

ML20210C668
Person / Time
Site:	07200022
Issue date:	07/20/1999
From:	Gaukler P AFFILIATION NOT ASSIGNED, SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#399-20673 97-732-02-ISFSI, ISFSI, NUDOCS 9907270005
Download: ML20210C668 (10)

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e 2.06 13 DOCKETED Usunc July 20,1999

'99 Jll 23 P3 :24 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION O

ADL Before the Atomic Safety and Licensing Board In the Matter of

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f PRIVATE FUEL STORAGE L.L.C.

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Docket No. 72-22

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(Private Fuel Storage Facility)

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k APPLICANT'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES BY THE STATE OF UTAH Applicant Private Fuel Storage L.L.C. (" Applicant" or "PFS") files this motion to compel the State of Utah (" State" or " Utah") to answer interrogatories pursuant to 10 C.F.R. 2.740(f)(1). PFS files this motion after receiving responses to its Second Set of Formal Discovery Requests' from the State that were deficient and incomplete.

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STATEMENT OF THE ISSUES On May 13,1999, the Applicant served the State with its second formal discovery request. PFS 2"d Req. On June 28, the State served the Applicant with its response. Utah Utah 2"d Resp. After resolving various disagreements with the State,2 the Applicant be-

' Applicant's Second Set of Formal Discovery Requests to Intervenors State of Utah and Confederated Tribes, dated May 13,1999 [ hereinafter PFS 2d Req.); State of Utah's Objections and Response to Appli-cant's Second Set of Discovery Requests With Respect to Groups il and III Contentions, dated June 28, 1999, [ hereinafter Utah 2"d Resp ].

Pursuant to the Atomic Safety and Licensing Board's (" Licensing Board" or " Board") direction, the Ap-2 plicant communicated by both letter and phone witt, the State in an effort to resolve its dispute with the State informally. That effort was in largely successful. Sy Letter ' rom Paul Gaukler, counsel for Appli-cant, to Denise Chancellor, counsel for State (July 20,1999).

9907270005 990720 PDR ADOCK 07200022 C

PDR 393

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lieves that the State's response remains deficient, specifically its responses to Interroga-tory Nos. 2-4 and 6 with respect to Utah Contention O.' The purpose of these interroga-tories was to elicit the specific factual and technical bases for the State's allegations that the construction and operation of the Private Fuel Storage Facility ("PFSF") would con-taminate both the groundwater and surface water in Skull Valley i

er e sharply de-

' fine the issues for litigation. The State's responses, however, fais 60 do so, and accord-ingly PFS files this motion to compel.

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ARGUMENT l

4 It is imperative that the State answer the Applicant's discovery requests directly, completely and in a timely manner. "[T]he failure to fulfill discovery obligations [not only] unnecessarily delay [s] a proceeding, it is also manifestly unfair to the other parties."

Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), ALAB-678,15 NRC 1400,1417 (1982).

The Applicants in particular carry an unrelieved burden of proofin Com-mission proceedings. Unless they can effectively inquire into the positions

' of the intervenors, discharging that burden may be impossible.

% (quoting Pennsylvania Power and Light Company (Susquehanna Steam Electric Sta-tion, Units 1 and 2), ALAB-613,12 NRC 317,338 (1980)).

As noted above, Interrogatory Nos. 2-4 and 6 for Contention Utah O sought to i

elicit the specific factual and technical bases for the State's allegations that the construc-i

' See PFS 2d Reg. at 13-14; Utah 2 Resp. at 81-85.

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e tion and operation of the PFSF would contaminate both the groundwater and surface wa-ter in Skull Valley. These interrogatories requested the State to identify (together with the scientific and technical bases therefor) the specific contaminants that the State claims would enter the various pathways to the ground or surface water identified by the State m response to Applicant's Interrogatory No. I and the means or mechanism by which the contaminants would enter those pathways (Interrogatory No. 2), the State's position on the likelihood of such contaminants reaching the surface or ground water in Skull Valley, including identification of the specific bodies of surface waters (Interrogatory Nos. 3 and 4), and any resulting measurable or adverse impacts that the State claims would result on down-gradient hydrological resources (Interrogatory No. 6).

The State's responses are wholly inadequate, particularly at this stage of the pro-ceeding, more than 18 months after the filing of the contentions. In response to the Ap-plicant's request for the State to identify the specific contaminants (and the means of their escape) that the State alleges will be emitted from the PFSF (Intetrogatory No. 2), the State merely cited its answer identifying the pathways it alleges such contaminants would follow from the PFSF; it identified no contaminants nor provided any technical bases by which contaminants would escape the PFSF (for example from the spent fuel storage casks) other than the broad generalizations in its response to Interrogatory No. I which lack technical content. State 2"d Resp. at 83; see also State 2"d Resp. at 81-83. Similarly, in response to the Applicant's request for the State to identify its position on the likeli-hood that the specified contaminants would enter the ground or surface water (Interroga-

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tory No. 3), the State again merely cited its answer to Interrogatory No 1 identifying the l

general pathways that it alleges such contaminants would follow from the PFSF; it pro-E vided no asserted likelihood of the contamination reaching the ground or surface water 1

nor any technical bases to support a claim that any such contamination would reach the iground or surface water in Skull Valley. Id. In response to the Applicant's request to identify the specific bodies of water the State asserts would be contaminated by the PFSF l.

and the technical bases therefor (Interrogatory No. 4), the State merely cites a list of some 45 bodies of weer in Skull Valley _ which it claims "could be contaminated by operations" without providing any technical basis for its claims. E at 83-84 (emphasis added). Fi-l nally, in response to the Applicant's request that the State identify and explain any meas-

urable or adverse impacts the PFSF would have on down-gradient hydrological resources (Interrogatory No. 6), the State again merely cited its response to Interrogatory 1, in which it identified the pathways by which it asserts contaminants would follow from the l

PFSF; it provided no technical explanation or bases whatsoever for its claims that such contaminants would pose any measurable or adverse hazard to down gradient resources.

Id. at 85.

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In subsequent informal discussions with the Applicant, the State has claimed that l

it could not provide more detailed answers to these questions because of an alleged lack of detail in PFS's license application.~ However, as the Applicant indicated to the State informally, no such lack of detail can be claimed, particularly with respect to radiological contaminants, as the license application and RAI responses provide information con-4-

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3 ceming the spent fuel to be stored at the PFSF as well as the design of structures and systems important to safety. For example, Section 6 of the Safety Analyses Report

("SAR") describes how the PFSF will be designed and operated to preclude releases of radioactivity under norraal operating conditions." Section 8 of the SAR discusses the lack of any, credible accidents that would result in a release of radioactivity to the environ-ment.5 Sections 3,4, and 5 of the SAR describe the design and operation of the PFSF on

. which underpin the above mentioned SAR sections. Further, PFS has responded to the State's interrogatories and document requests with respect to Utah O providing over fif-teen pages of answers.' In its responses, PFS has provided additional information on how the PFSF will be designed and operated to preclude the release of radioactivity to the en-vironment.'.

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Further, although the information provided by PFS with respect to non-radiological contaminants is less detailed, the State has sufficient information to provide more complete answers to the interrogatories than the responses that it has provided. In its discovery responses, PFS has provided preliminary engineering drawings for the sep-tic tank system and the associated leaching field as well as providing other general infor-mation with respect to the septic system, including identifying the general type of efflu-4 See also PFSF Environmental Report ("ER") at Section 3.4.

8 See also ER at Section 5.1.

• See Applicant's Objections and Non-Proprietary Responses to State's First Requests for Discovery, dated April 21,1999, at 45-62. ne State did not issue with adequacy of PFS's responses.-

' g at 48-51,54.

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ents to be disposed ofin the septic system.' PFS has also provided information that it will be most likely be using normal maintenance / cleaning related chemical substances such as commercial cleaners and solvents, and has provide information on diesel fuel, ef-fluents from vehicle and equipment maintenance, and other effluents from construction and operational activities at the PFSF site.'

Thus, the Applicant believes that 'the State has sufficient information to answer Interrogatory Nos. 2-4 and 6, and certainly enough information to provide much more complete (even if not final) answers than those provided by the State. Moreover, certain aspects of the answers are not directly dependent on information provided by PFS, such as the likelihood, assuming a release, of contaminants entering into the groundwater or surface water. Therefore, PFS believes that State's answers are deficient and the Board should order the State to fully answer the specified interrogatories.

i It is clear under Commission precedent that the State's non-responsive and in-complete answers are deficient. Boston Edison Company (Pilgrim Nuclear Generating 1

Station, Unit 2), LBP-75-30,1 NRC 579,583 (1975) (interrcigatory answers "must be complete, explicit and responsive"); 10 C.F.R. { 2.740(f)(1) ("[a]n evasive or incomplete -

answer or response shall be treated as a failure to answer or respond"). As stated by the Pilgrim board:

• Id. at 45-47,60.

' See generally 1 at 45-62.

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[An intervenor] has a responsibility to specify the facts, i.e., the data, in-formation and documents, if any, upon which he intends to rely and upon which he has relied in support of his intervention, so that parties may be advised in advance with regard to the nature of the Intervenor's case.

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Pilgrim, LBP-75-30,1 NRC ' t 586 (emphasis added). Thus, the State must provide the a

specific facts, data, and information on which it bases its claims concerning the asserted

. threat to groundwater or surface water quality posed by me PFSF.

The State's argument that it does not have ene information from PFS to re-spond, in addition to being wrong, provides no just

.ition for ignoring the interrogato-ries. It should provide responses based on the extensive information it has now and, if

- need be, supplement its answers as it obtains further information.

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[L]ack of complete or partial knowledge does not excuse failure to make timely answers to interrogatories. In the absence of such knowledge, the party... must answer to the best of his ability... ; if he claims to have less than fue Nrmation at the time his answers are due, he should an-swer by givinghe evailable information and by stating that the answer re-flects the limited iniormation that he then has.

Pilgrim,- LBP-75-30,1 NRC at 583 n.10; Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17,17 NRC 490,498-99 (1983).

Therefore, PFS requests that the Board order the State to provide direct, complete, i

and specific answers to PFS's Interrogatories Nos. 2-4 and 6 for Utah O on the basis of the information the State currently has available to it.

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See, also Duke Power Company (Catawba Nuclear Station, Units 1 and 2), LBP-83 29A,17 NRC 1121, 1124 (1983)(response concerning quality assurance contention should " state the nature of the problem, where in the plant it was found, when it occurred and who was involved"); & at 1125 (welding response j

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III.

CONCLUSION i

For the forgoing reasons, the Board should compel the State to produce the infor-mation requested by the Applicant's Interrogatories Nos. 2-4 and 6 related to Utah 0.

i Respectfully submitted,

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Olb Jay E. Silberg Ernest L. Blake, Jr.

Paul A.Gaukler SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.

I Washington,DC 20037 (202) 663-8000 July 20,1999 Counsel for Private Fuel Storage L.L.C.

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Document #: 791811 v.I t

should give " names, places, dates, etc "); jd: at 1127-28 (responses must specifically define contention terms, such as " sufficient").

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i DOCKETED USNRC UNIfED STATES OF AMERICA

' NUCLEAR REGULATORY COMMISSION 99 JUL 23 P3 :24 Before the Atomic Safety and Licensing Board Ofg,

ADJUP FF In the Matter of-

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PRIVATE FUEL STORAGE L.L.C.

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Docket No. 72-22

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'(Private Fuel Storage Facility)

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ASLBP No. 97-732-02-ISFSI CERTIFICATE OF SERVICE I hereby certify that copies of the Applicant's Motion to Compel Answers to Inter-rogatories by the State of Utah were served on the persons listed below (unless otherwise noted) by e-mail with conforming copies by U.S. mail, first class, postage prepaid, this 20th day ofJuly 1999.

G. Paul Bollwerk III, Esq., Chairman Ad-Dr. Jerry R. Kline ministrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 e-mail: GPB@nrc. gov e-mail: JRK2@nrc. gov and kjerry@erols.com Dr. Peter S. Lam

• Susan F. Shankman Administrative Judge Deputy Director, Licensing & Inspection Atomic Safety and Licensing Board Panel Directorate, Spent Fuel Project Office U.S. Nuclear Regulatory Commission Office ofNuclear Material Safety &

Washington, D.C. 20555-0001 Safeguards e-mail: PSL@nrc. gov U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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Office of the Secretary

• Adjudicatory File U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission Attention: Rulemakings and Adjudications Washington, D.C. 20555-0001 Staff e-mail: hearingdocket@nrc. gov (Original and two copies)

Catherine L. Marco, Esq.

Denise Chancellor, Esq.

Sherwin E. Turk, Esq.

Assistant Attomey General Office of the General Counsel Utah Attorney General's Office Mail Stop O-15 B18 160 East 300 "auth,5th Floor U.S. Nuclear Regulatory Commission P.O. Box 140873 Washington, D.C. 20555 Salt Lake City, Utah 84114-0873 e-mail: pfscase@nrc. gov e-mail: dchancel@ state.UT.US John Paul Kennedy, Sr., Esq.

Joro Walker, Esq.

Confederated Tribes of the Goshute Land and Water Fund of the Rockies Reservation and David Pete 2056 East 3300. South, Suite 1 1385 Yale Avenue Salt Lake City, UT 84109 Salt Lake City, Utah 84105 e-mail: joro61@inconnect.com e-mail: john @kennedys.org Diane Curran, Esq.

Danny Quintana, Esq.

Harmon, Curran, Spielberg &

Skull Valley Band of Goshute Indians Eisenberg, L.L.P.

Danny Quintana & Associates, P.C.

1726 M Street, N.W., Suite 600 68 South Main Street, Suite 600 Washington, D.C. 20036 Salt Lake City, Utah 841b1 e-mail: deurran@harmoncurran.com e-mail: quintana @xmission.com By U.S. mail only i

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I aul A. Gaukler i

Document #: 791876 v.1 7

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