ML20247M754

New England Coalition on Nuclear Pollution (Necnp) Motion to Compel NRC Staff to Respond to Necnp Third Set of Interrogatories & Request for Production of Documents.* Certificate of Svc Encl

ML20247M754
Person / Time
Site:	Vermont Yankee
Issue date:	03/29/1989
From:	Ferster A HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
References
CON-#289-8380 OLA, NUDOCS 8904060114
Download: ML20247M754 (8)

Text

- _ _ - _ .__

[- . . .

l .Qh-

^

DOCKETED-tn e t March 29, 1989 UNITED STATES OF AMERICA '89 NAR 31 P2 :27 L

! NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD [; 3p, i::'

)

In the Matter of )

)

Vermont Yankee Nuclear )

Power Corporation ) Docket No. 50-271-OLA

) (Spent Fuel Pool)

(Vermont Yankee Nuclear )

Power Station) )

)

NECNP'S MOTION TO COMPEL THE NRC STAFF TO RESPOND TO NECNP'S THIRD SET OF INTERROGATORIES AND REOUEST FOR PRODUCTION OF DOCUMENTS The New England Coalition on Nuclear Pollution ("NECNP")

hereby requests that the Licensing Board order the NRC Staff to provide answers to interrogatories 2(b) through (j), contained in NECNP's Third Set of Interrogatories and Requests for the Produc-tion of Documents to the NRC Staff on the NRC Environmental Assessment and Finding of No Significant Impact - Spent Fuel Pool Expansion," dated December 20, 1989, to which the NRC Staff has objected and refused to supply answers.

I. Backaround Discovery under NECNP's late-filed environmental Contention 3 is governed by the Licensing Board's Prehearing Conference Order, LBP-87-17, 25 NRC 838 (1987). In that Order, the Board explained that formal discovery on any late-filed contentions closed "within 45 days of our acceptance of new contentions based on Staff review documents, or within 45 days of the issuance of go4cteo

• AW //V Ff03r f

- csway i 198.1 h.50 b

0

~

'such' documents, whichever is later." Id., at 862. The Board fur-ther explained that, by that date, " answers to interrogatories

[must be] received, second round questions asked and answered, document production completed, etc." Id.

By order dated October 11, 1988, the Licensing Board admitted NECNP environmental contentions 2 and 3, and restated the applicability of its previous discovery order in LBP-87-17-as follows: "[ discovery] will extend for 45 days from the dateoof service of this Memorandum and , Order. LBP-87-17, suora, 25 NRC at 862. During that time period, answers to interrogatories must be received, second round questions asked and answered , and docu-ment production must be completed." LBP-88-26, slip opinion at

20. Accordingly, under this schedule, discovery would have closed by December 1, 1988.

NECNP's "first round" set of interrogatories to the NRC Staff on its Environmental Assessment, filed on October 21, 1988, requested information relevant to NECNP environmental contention 3, related to the dry cask storage alternative, and NECNP's "sec-ond round" set of interrogatories to the NRC Staff on its Environmental Assessment, filed on November 10, 1988, dealt with environmental contention 2, related to worker exposure. NECNP timed its first round to permit sending out a third set of inter-rogatories following receipt of the NRC's responses to the first 1 l

round, so as to be able to incorporate in the third round ques-tions 'aised r by the NRC Staff's responses. Because the NRC Staff i

did not respond in a timely fashion to NECNP's first round of  !

-____-__m_._________. _ _ . . _ _ . _ _ _ _ _ - _ _ _ _ _ - . - -

interrogatories, NECNP requested and received an' extension of time.in which to' file second-round discovery requests, the ans-wers to which would not be received before December 1,.1988. .

NECNP's third set of interrogatories was filed on December 20, 1988. ,

Partial responses were filed by the Staff on March 14, 1989.

However, the NRC Staff refused to respond to NECNP Inter-rogatories 2(b) ( through (j) on the sole ground that they are

" newly stated" and "not flowing from" the Staff's Responses to NECNP's First Set of Interrogatories.1 II. There is No Authority in NRC Regulations or Case Law for Limiting the Scope of."Second-Round" Interrogatory Questions to Matters " Flowing From" First Round Responses.

NECNP has been unable to locate any authority, in the NRC's regulations, NRC cases, or even in federal cases, stating a rule that where all "new" questions must asked and included in a first round of interrogatories, and any subsequent rounds of inter-rogatories must " flow" from these responses. Egg 10 C.F.R. 5 2.740b.2 In absence of such a rule, the sole principle limiting the type of interrogatory questions that may be asked is that they 1 See "NRC Staff Response to NECNP's Third Set of 7nter-rogatories and Rcquests for the Production of Documents to the NRC Staff on the NRC Environmental Assessment and Finding of No Significant Impact - Spent Fuel Pool Expansion," datad March 14, 1989, at 2-3.

2 Indeed, such a rule is counter-intuitive since it would point-lessly require litigants to propound all new questions in the beginning of the discovery period, even where the discovery period permits a seriatum approach.

have " general relevance, for discovery purposes, to the matters in controversy in the proceeding." Texas Utilities Generatina Co. (Comanche Peak Steam Electric-Station, Units 1 and 2) , LPB-81-25, 14 NRC 241, 243 (1981). In this regard, it is noted that "In modern administrative and legal practice, pretrial discovery is liberally granted to enable the parties to ascertain the facts in complex litigation, refine the issues, and prepare adequately for a more expeditious hearing or trial." Pacific Gas and Elec-tric Co. (Stanislaus Nuclear Project, Unit 1, LBP-78-20, 7 NRC 1038, 1040 (1978). ,

Here NECNP's Third Set of Interrogatories were clearly j timely and relevant, and no objection is interposed on those bases in any event.3 Thus, there is simply no authority for permitting the NRC Staff to avoid discovery on the cited ques-tions.

III. The Licensing Board's Discovery Orders in this Proceeding Do Not Require "Second Round" Interrogatories to " Flow From" First Spund Responses.

As noted above, the Licensing Board's discovery order in no

! way states or even suggests that "second round" responses must be "new questions" that " flow from" first round responses. The NRC i

1 l

I 3 But for the NRC Staff's delky in responding, NECNP's third round would have been filed withi'n time to receive responses by the close of formal diseevery. Accordingly, the fact that discovery modifications were made to enable this third round l to encompass follow-up type questions should not operate to l limit NECNP's ability to ask appropriate questions otherwise j I

within the scope of NECNP's contention and reasonably relevant l

to discovery. j l \

_ _ - - - _ _ _ _ _ _ _ _ a

1 Staff's novel interpretative gloss is apparently based on the Licensing Board's use of the words "second round" to describe when discovery must be completed. However, it is clear that the Board's use of the term "second round" was simply to indicate that the parties must file a second (or third or fourth) round of interrogatories at least 14 days prior to the end of the dis-covery period, so that answers can be received prior to the close of discovery. Indeed, this was the Licensing Board's own inter-pretation of this order in , denying the Applicant's Motion to Com-pel, filed December 22, 1988'..gekMemorandumandOrder~(Telephone ,

Conference Call, 1/10/89), dated January 12, 1989 (unpublished),

slip opinion at 4-7.4 Indeed, to read this Board's discovery orders to so limit discovery would be contrary to sound principles pertaining to discovery orders. This principle, in the context of court dis-covery orders, was described as follows:

Upon a proper showing'the, court may make whatever order about the sequence and, timing of' discovery the necessity of a case requires... The important ooint is that these orders are only to be made when and as the convenience of all con-cerned and the interest of iustice reauires and that thev 4 Taking the Staff's interpretation to an extreme, obviously NECNP?s "second round" of interrogatories, which dealt with the NRC's estimate of worker doce exposure did not " flow from" the first responses, which dealt with the assessment of the dry cask storage alternative. Yet the NRC Staff failed to object to this second round of interrogatories on the ground that they were 'new questions not flowing from" first round responses. Ses "NRC Staff Response to NECNP's Second Set of Interrogatories and Request for Production of Doca.nents to the NRC Staff on the NRC Environmental Impact - Spent Fuel Pool Expansion," dated March 16, 1989.

---

___m.. - _ _ _ _ __.__,_m__, __, , _

are not intended as a means by which a carty can win a tech-nical advantace.

Wright & Miller, Federal Practice and Procedure: Civil 5 2047 at 819 (West 1970).

Given the serious consequences in terms of NECNP's ability to obtain sufficient information necessary to litigate effec-tively this important environmental contention. had the Board intended to limit "second round" questions to " questions not flowing from" first round responses, it was entirely reasonable for NECNP to assume that the Board would have been explicit as to that limitation. As it is, there is simply no basis in NRC regulations or in published case law that would have put NECNP on notice as to this meaning of its discovery order. Accordingly, it would be unfair to NECNP to limit NECNP's ability to ask appropriate questions otherwise within the scope of NECNP's con-tention and reasonably relevant to d'.scovery.

IV. NECNP's Interrogatories Do " Flow From" First Round Responses.

In any event, NECNP's interrogatories 2(b) through (j) clearly do flow from the NRC Staff's first round responses, inasmuch as they concern the dry cask storage alternative, which was the subject of the NRC Staff's first round responses.

I l

. .. I i

V. Conclusion For the foregoing reasons, NECNP's Motion to Compel should be granted with respect to the NRC Staff's failure to respond to NECNP's interrogatories 2(b) through (j).

Respectfully submitted Fv Andrea Ferster HARMON, CURRAN & TOUSLEY 2001 "S" Street N.W. Suite 430 Washington, D.C. 20009

' (202) 328-3500 CERTIFICATE OF SERVICE I certify that on March 29, 1989, copies of the foregoing pleading were served by first-class mail, or as otherwise indi-cated, on all parties listed below.

Charles Bechhoefer, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Gustave A. Linenberger, Jr. gjSl .

Atomic Safety and Licensing Board Panel Er 03 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ['[" k j('

7>. La

~

~l1 1

Dr. James H. Carpenter . ,

Atomic Safety and Licensing Board Panel ,

my N

U.S. Nuclear Regulatory Commission 1:

Washington, D.C. 20555 @

Secretary of the Commission Attn: Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C. 20555 George Dean, Esq.

Assistant Attorney General Commonwealth of Massachusetts Department of the Attorney General one Ashburton Place Boston, MA 02108

w , T

.;.a .

L.

~

' George Young, Esq.

Vermont Department of Public Service 120 State Street' Montpelier, VT 05602 .

Ann Hodgdon, Esq..

' Office'of'the General. Counsel Bethesda U.S. Nuclear Regulatory, Commission Washington, D.C. 20555 Diana Sidebotham R.F.D. #2

, Putney, Vermont 05346 R.K. Gad III Ropes & Gray One. International Place Boston, MA 02110 Geoffrey M. Huntington,.Esq.

Office of the Attorney General

- Environmental Protection Agency State House Annex 25 Capitol Street Concord, NH 03301-6397 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 d

Andrea Ferster I

i

_----___m_.____.__ _ _ _ _ _ _ _.