ML18283A546

Licensee'S Second Motion for an Order to Compel Intervenor to Respond to Certain Interrogatories

ML18283A546
Person / Time
Site:	Browns Ferry
Issue date:	05/26/1976
From:	Dunker W, Dawn Powell, Sanger H Tennessee Valley Authority
To:	Atomic Safety and Licensing Board Panel
References
Download: ML18283A546 (31)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of TENNESSEE VALLEY AUTHORITY: Docket Nos. 50-50-260 (Browns Ferry Nuclear Plant Units 1 and 2)

LICENSEE'S SECOND MOTION FOR AN ORDER TO COMPEL INTERVENOR TO RESPOND TO CERTAIN INTERROGATORIES Pursuant to 10 C.F.R. 5 2.740(f) (19,75) Licensee moves the I

Board for an order to compel Intervenor William E. Garner to respond.

'o Licensee's interrogatories l(a); 2(d) and (e); 3(d) and (f); 4(d);

5(f),.>(g) and (h); 6(e} and (f); 7',.'.) and (g); 8(a), (b), (c), (d) and (e); 9(c); 10(a) and (b); and ll(d), (e), (f) and (g) filed April 16, 1976, on the grounds that (1) Intervenor's answers to requests for the factual bases for his contentions and other facts are nonrespon-sive, evasive, and dilatory; (2) Intervenor's answers to requests for definitions of certain terms are nonresponsive; (3} Intervenors responses constitute a failure to answer under 10 C.F.R. 5 2.740(f) (1975); and

(4) Intervenor cannot unilaterally, and in complete disregard of the previously agreed upon schedule as contained in the Board's Order of April 26, assume an extension of time in which to respond to interroga-tories.

A supporting brief and proposed form of order are enclosed.

Respectfully submitted, Herbert S. Sanger, r.

General Counsel Tennessee Valley Authority Knoxville, Tennessee David G. Powell Assistant General Counsel Mill am L, Dunker Attorneys for Licensee Knoxville, Tennessee May 26, 1976

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

TENNESSEE VALLEY AUTHORITY ) Docket Nos. 5O-259

) 50-,260 (Browns Ferry Nuclear Plant )

Units 1 and 2) )

LICENSEE'S BRIEF IN SUPPORT OF SECOND MOTION TO COMPEL INTERVENOR TO RESPOND TO CERTAIN INTERROGATORIES STATEMENT On May 14, 1976, William E. Garner ("Intervenor" ) served answers

"-to L'censee's interrogatories. These interrogatories requested,sinter alia, the factual bases for Intervenor's contentions, other facts con-cerning deficiencies or defects claimed to exist with respect to the con-tentions, and asked that certain terms used by Intervenor in his own con-tentions be defined.

The answers filed fail to give the factual bases requested, fail to supply other factual details, give incomplete or evasive answers, or unilaterally extend the response to some indefinite future time.

Such disregard of the Rules of Practice on discovery is dilatory and contumacious, and should not be permitted by the Board. Licensee is

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entitled to and the Board should order that these interrogatories be responded to fully within seven days of the Board's granting this motion.

ARGPiKNT Governin Law Demands that Intervenor be Com elled to Answer It is clear that the Licensee

. may obtain discovery regarding ~an matter .

relevant to the subject matter involved in the proceeding... [10 C.F.R. 5 2.740(b) (1) (1975) ].

This "obviously includes requesting the factual bases for contentions and other facts relating to specific deficiencies alleged by the Intervenor, and the Intervenor'scdefinition of terms used in his own contentions.

The propriety of seeking such information by means of discovery requests is beyond question. As stated by the Board in the ~Pil rim case:

[I]t has been uniformly recognized that the discovery rules are to be accorded a broad and liberal treatment so that parties may obtain the fullest ossible knowl-ed e of the issues and facts before trial As to the permissible areas of discovery, the authori-ties are clear that interrogatories seeking ~secifica tion of the facts u on which a claim or contention is 1 Emphasis added herein unless otherwise noted.

based are wholl ro er and that the art ma be re-uired to answer uestions which attem t to ascertain the basis for his claim or, for example, what defi-ciencies or defects were claimed to exist with res ect to a articular situation or cause [Boston Edison Co.

(Pilgrim Nuclear Generating Station, Unit 2) LBP-75-30, NRCI-75/6 579, 582 (June 6, 1975); footnote omitted].

See also Mallinckrodt Chem. Works v. Goldman Sachs & Co., 58 F.R.D. 348 (S.D.N.Y. 1973); Patton v. Southern Bell Tel. & Tel. Co., 36 P.R.D. 426 (N.D. Ga. 1965), ~citin Hickman v. ~Ta lor, 329 U.S. 495 (1947); ~Broadwa

& Ninet -Sixth St. Realt Co. v. Loew's Inc., 21 F.R.D. 347, 353 (S.D.

N.Y. 1958); Hartsfield v. Gulf Oil C~or ., 29 F.R.D. 163 (E.D. Pa. 1962);

4 J. Moore Pe,deral Practice 'll 26.56[3) (1975 ed.); cf. ~Ro ere v. Tri-State Materials Cor ., 51 F.R.D. 234 (N.D. W. Va. 1970).

The Atomic Safety and Licensing Appeal Board has stated that:

These discovery provisions, if used in ood faith by parties,,are designed to make affirmative contributions to contested administrative proceedings. One of the aims of discover is to articularlize the areas of and contentions which must be resolved in the determina-tion of the case. Another purpose served by discovery is to brin about the disclosure of ro erl roducible relevant information and material. Besides benefiting the parties to a contested proceeding, discovery also aids the bod conductin the roceedin b uttin s ecific issues and the contentions of the arties re ardin them in shar focus [Northern States Power Co. (Monticello Nuclear Generating Plant, Unit 1)

ALAB-109 WASH-1218, 43, 49 (1970)] .

As the Licensing Board in the Cook proceeding stated:

Where . . . an explicit allegation is made, controvert-ing an aspect of the Applicants'ase, Intervenors, have a definite obli ation to reveal the bases for such alle ation in res onse to interro atories [Indiana and

0 Michi an Elec. Co. (Donald C. Cook Nuclear Plant, Units 1 and 2) ASLB Memorandum and Order, 3 CCH Atom. En. L. Rep. 1l 11,577.05, at 17,699-21 (Feb. 4, d 1974)].

Where a party fails to respond to an interrogatory, the party submitting the interrogatory may ask for an order compelling'iscovery under section 2.740(f) of the Rules of Practice. That section also pro-vides that:

[A]n evasive or incomplete answer or response shall be,,treated as a failure to answer or respond.

TVA has asked interrogatories of the Intervenor requesting (1) the factual bases for his contentions and other specific facts con-cerning deficiencies or defects claimed,to exist with respect to the contentions in this proceeding, and (2) definitions to several words and phrases used by the Intervenor in his contentions.

Intervenor's answers are incomplete, nonresponsive, evasive, 1

and dilator'y and should-be treated as a failure to respond.

Intervenor's Answers to Re uests for Factual Bases and other Facts are Nonres onsive Evasive, and Dilator F

Several interrogatories request the factual bases for Intervenor's contentions and facts concerning the. deficiencies or defects claimed to exist with respect to the contentions. These are interrogatories l(a);

2(d), (e); 3(d), (f); 4(d); 5(f), (g); 6(e), (f); 7(f), (g); 9(c); 10(b);

ll(d), (e), (f), and (g).

Intervenor responded as follows to interrogatory l(a):

At the present time the factual bases are:

NELPIA Report dated May 1975. 15 pages plus attach-ments.

NELPIA Interoffice Communitcation [sic] from John J.

Carney-Farmington, Proposed Meeting on Fire Protection for Cable Systems, dated May 23, 1975.

Letter from Ralph Nader to William Anders, dated August 13, 1975.

Memorandum to Browns Ferry File, Meeting with NELPIA, June 26, 1975, from Stephen H. Hanauer, dated July 10, 1975, with Appendix [Intervenor's Answers to Interro a-tories of the A licant, at 1].

This is clearly not responsive to interrogatory l(a), which requests that Intervenor specify the factual bases for contention 1. It is not adequate for Intervenor simply to reference a group of documents and indicate that his factual bases are buried somewhere in them. This is an effort to shift the burden to the Licensee to attempt to determine what facts are stated in the documents, and then which of the stated facts support the contentions. This the Intervenor cannot do. 10 C.F.R. 5 2.714(a) (1975). Moreover, the referenced documents merely point out potential areas of fire-related design deficiencies in the ~orl inal Browne Ferry design, and offer recommendations for their correction. They do not contain a basis for the NELPIA recommendations nor provide information about how the NELPIA recommendations are expected to establish any specific level of fire protection. Thus the documents do not provide the requested factual basis for the contention.

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Responses to interrogatories 2 (d), 3 (d), 4 (d), and 6 (f) all refer back to the documents listed in l(a) and are not responsive for the reasons listed above. The response to 7(f) refers to 6(f), which refers to 1(a); the response to 7(g) refers to 7(f), which refers to 6(f),.

which refers to l(a). These responses are likewise deficient.

The response to 11(d) refers to 7(c), which refers to 2(c),

which refers to l(h). The 1(h) response states that:

Intervenor has begun communications with Ralph Nader, Gregory C. Minor, and the Union of Concerned Scien-tists. Intervenor has not made a decision as to what experts and others he intendes [sic] to have testify with regard to contention 1 [Intervenor's Answers to Interro atories of the A licant, at 1].

This obviously fails to provide the factual basis requested in 11(d).

Responses to interrogatories 2(e), 3(f), and 6(e) state that the questions are "really too vague to be=answered" (id. at 2p 4) This constitutes an objection to these interrogatories, which is out of time.

Failure to object on time results in a waiver of the right to object.

United States v, 58.16 Acres of Land Etc., 66 F.R.D. 570 (E.D. Ill. 1975);

McKeon v. Teamsters Local 107, 28 F.R.D. 592 (D. Del. 1961); Maurer-Neuer Inc. v. Union of United Packin house Vers. of Am., 26 F.R.D. 139 (D. Kan.

1960). Thus Intervenor should be required to respond. .The interrogatories are obviously clear on their face and should be answered.

The response to ll(e) refers to 7(e). The response to 7(e) states that Intervenor objected to 7(e) because "explanation of the quoted terms are equally available to Applicant" Intervenor's Answers to Interro a-tories of the A licant, at 4). Intervenor attempts to object to ll(e) after

the date on which objections were due, thus waiving his right to object.

Moreover, the Board in its Order of May 21 directed that 7(e) be answered.

Intervenor responds to interrogatories 5(f) and (g) by stating that he "has not reached a conclusion at this time on this matter" (id.

at 3); 9(c) and 10(b) by stating that he "is in the process of assembling this information" (id. at 5); ll(f) that he "would want to reserve an answer" (id. at 6); and ll(g) that he "has not completed his analysis" (id. at 6). Here Intervenor has attempted to unilaterally extend the time to respond to inter'ogatories.. The Rules of Practice require that each interrogatory be answered "separately and fully in writing . . . unless it is objected to" (10 C.F.R. 5 2.740b(b) (1975)) . The Board's Order of April 26 directed that responses to interrogatories be served by May 14, 1976. These interrogatories request the factual bases and details of Intervenor's contentions, which should exist pursuant to 10 C.F.R. 5 2.714(a)

(1975) at the time the contention is initially advanced.

In considering a party's failure to respond to interrogatories on time, the Fourth Circuit held in United States v. Continental Cas. Co.,

303 F.2d 91 (4th Cir. 1962), that A defendant ma not i nore the lain mandate of the Federal Rules of Civil Procedure]. The defendant's assumption that he could with impunity ignore the requirements of Rule 33 [Interrogatories to Parties]

sho'ws a basic misunderstanding of the purpose and spirit of, the Rules. A art to an action has the ri ht to have the benefits of discover roce-ample time to re are his case before scheduled trial, but also in order to brin to li entitle him to summar ud ent . . . [at ht facts which ma 92].'ee also W111iams v. ~Kris es, 61 S.R.D. 142 (S.D.N.Y. 1973) .

Intervenor's answers to these interrogatories are clearly dilatory, evasive, and nonresponsive.

Intervenor's Answers to Re uests for a Definition of Certain Terms and Other Information are Wholl Nonres onsive Interrogatories 8(a) and (b) requested the definition of the terms "technically qualified" and "competent" respectively, as used in contention 2. Intervenor responded as follows:

(a) Generally, of or related to a technique and fitted for a given purpose. Will be further defined.

(b) Capable, having requisite ability or qualities, fit. experience [sic] shows can do. Could have ability but not the qualyies [sic] to carry out.

Will further define and supplement [Intervenor's Answers to Interro atories of the A licant, at 4].

These extremely generalized answers provide no assistance in clarifying the contention. Furthermore, the statement that he "will further define and supplement" the response is another attempt to unilaterally extend the time to answer.

Interrogatories 8(c), (d), and (e) requested the Intervenor to:

(c) Specify each modification which you contend that TVA is "technically incompetent and unqualified" to complete.

(d) Specify the areas of technical expertise that are required to satisfactorily complete each such modifi-cation referred to above.

(e) Specify what is necessary to prove competency in the areas of technical expertise specified in (d) above.

Intervenor's responses to interrogatories 8(c), (d), and (e) state that:

(c) My analysis of this is not complete at this time. For one thing answers to certain interroga-tories to NRC staff and Applicant are needed.

(d) My analysis of this is not complete. For one, prior successful experience.

(e) See answer to (d) above.

Again, Intervenor unilaterally attempts to extend the time in which to respond to interrogatories.

In the response to interrogatory 10(b) Intervenor attempts once more to extend the time in which to answer'. The phrases given as a definition for "construction anomalies" are too generalized to assist

.in narrowing contention 2, The answer that "[a]nomalies is the plural of anomaly" is impertinent and should be stricken.

In viewing the Intervenor's purported responses to these interrogatories, it is helpful to recall the Appeal Board's statements in the Midland proceeding.

One of the justifications for public participation in [the adjudicatory] process is the additional in ut which intervenors ma contribute to the identi-fication and resolution of relevant issues, and the assistance the ma rovide an agency in fulfilling its statutory mandates [citing Office of Communica-tion of the Church of Christ v. P.C.C., 359 9.2d 994, 1005 (D.C. Cir. 1966)]. 1n short, the right of participation in an administrative proceeding carries with it the obli ation of a'rt to assist in "mak-in the s stem work" and to aid the agency in discharg-ing the statutory obligations with which it is charged

[Consumers Po~er Co. (Midland Plant, Units 1 and 2)

ALAB-123, RAI-73-5, 331, 332 (May 18, 1973)].

Intervenor's answers are nonresponsive, dilatory, and evasive, and demonstrate that the role of this Intervenor is diametrically opposed to the rationale that permits public participation in this proceeding.

CONCLUSION For the foregoing reasons, the Intervenor's responses consti-tute a failure to answer under 10 C.F.R. 5 2.740(f) (1975) . The Board should issue an order compelling the Intervenor to respond fully to Licensee interrogatories.

Respectfully submitted, Herbert S. Sanger, Jr.

General Counsel Tennessee 0 lley Authority Knoxville, Tennessee David G, Powell Assistant General Counsel Wil iam L. Dunke Attorneys for Licensee Knoxville, Tennessee May 26, 1976

UNITED STATES OF AMERICA NUCLEAR REGULATORY COI&iISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

TENNESSEE VALLEY AUTHORITY ) Docket Nos. 50-259

) 50-260 (Browns Ferry Nuclear Plant )

Units 1 and 2) )

PROPOSED FORM OF ORDER COMPELLING DISCOVERY Licensee has moved, pursuant to 10 C.F.R. 5 2.740(f) (1975),

for an order to compel Intervenor William E. Garner to respond to Licensee's interrogatories 1(a); 2(d) and (e); 3(d) and (f); 4(g);,

5(f), (g) and (h); 6(e) and (f); 7(f) and (g); 8(a), (b),'(c), (d) and (e); 9(c); 10(a) and (b); and ll(d), (e), (f) and (g) filed April 16, 1976. These interrogatories'equest the Intervenor,,to provide the factual bases for his contentions and other specific facts concerning deficiencies or defects claimed to exist with respect to the conten-tions in this proceeding. Several of the interrogatories request that Intervenor provide definitions for several words and phrases used in the contentions. The Board has examined these interrogatories and determined that they are reasonable and within the scope of permissible discovery as set forth in 10 C.F.R. 5 2.740(f) (1975).

Licensee has the right to "obtain discovery regarding any matter . . . relevant to the subject matter involved in the proceeding" (10 C.F.R. 5 2.740(b)(1) (1975)). It is'beyond question that Licensee may request by means of interrogatories that Intervenor provide the factual bases for contentions, other facts relating to deficiencies alleged by the Intervenor, and the Intervenor's definition of the terms contained in his contentions. This point was clearly established by the Board in the ~Pil rim case:

As to the permissible areas of discovery, the authori-ties are clear that'nterrogatories seeking ~s ecifica tion of the facts u on which a claim or contention is based are wholl ro er and that the art ma be re-uired to answer uestions which attem t to ascertain the basis for his claim or, for example, what defi-ciencies or defects were claimed to exist with res ect to a articular situation or cause [Boston Edison Co'.

(Pilgrim Nuclear Generating Station, Unit 2) LBP-75-30, NRCI-75/6 579, 582 (June 6, 1975); emphasis added, footnote omitted].

See also Northern States Power Co. (Monticello Nuclear Generating Plant, Unit 1) ALAB-10, MASH-1218, 43, 49 (1970); Indiana and Michi an Elec. Co.

(Donald C. Cook Nuclear Plant, Units 1 and 2) ASLB Memorandum and Order, 3 CCH Atom. En. L. Rep. 1[ 11,577.05, at 17,699.21 (Feb. 4, 1974).

The Board has examined Intervenor's responses to Licensee's Interrogatories and finds them generally to be incomplete, immaterial, evasive, and nonresponsive and, thus, inadequate under the Rules of Practice. In response to interrogatory l(a), which sought -

the factual bases for contention '1, Intervenor provided a brief list of documents and correspondence. It is not adequate for Intervenor to simply reference

.0 a group of documents and indicate that his factual bases are buried somewhere in them. This is an improper effort to shift the burden to the Licensee to attempt to determine what facts are stated in the documents, and then which of the stated facts support the contentions.

10 C.F.R. 5 2.714(a) (1975). Moreover, it appears that these docu-ments do not address the adequacy of the Licensee's proposed modifi-cations. Thus they do not provide factual bases for contention 1.

Responses to the other interrogatories seeking factual bases or specific facts concerning alleged design deficiencies (~e. , inter-rogatories 2(d), 3(d), 4(d), 6(f), 7(f) and 7(g)) all generally refer-ence the same documents and, thus, are similarly deficient. Response ll(d) which refers to Intervenor's communications with various persons about the contentions, obviously fails to provide the requested factual bases.

Responses 2(e), 3(f), 6(e) and 7(e) constitute, in effect, objections to these interrogatories. Intervenor waived the right to make such objections by failing to file them timely, United States v.

58.16 Acres of Land Etc., 66 F.R,D. 570 (E.D. Ill. 1975); however, the objections were not well taken in any event for the Board has found these interrogatories to be proper.

In responses 5(f), (g); 8(a), (b), (c), (d), (e); 9(c); 10(b);

ll(f) and (g) Intervenor has attempted unilaterally to extend the time in which to respond to interrogatories. Such action is contrary to the

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Rules of Practice, 10 C.F.R. 5 2. 740b (b) (1975), and the Board ' Order of May 14, 1976, establishing the schedule for discovery.'uch action, further, prejudices the rights of the Licensee. United States v. Con-tinental Cas. Co., 303 F.2d 91 (4th Cir. 1962). Intervenor's responses to these interrogatories are incomplete, dilatory, and evasive. Further-more, we find that part of response 10(b) which states "[a)nomalies is the plural of anomaly" to be impertinent and, accordingly, order it to be stricken.

We find generally that Intervenor's actions are dilatory, obstructive, and evasive and that Intervenor is not living up to his obligation of assisting in "making the system work." Cf. Consumers Power Co. (Midland Plant, Units 1 and 2) ALAB-123, RAI-73/5 331, 332 (May 18, 1973).

Therefore, after reviewing the pleadings related to this matter the Board finds as follows:

(1) Licensee's interrogatories l(a), 2(d) and (e), 3(d) and (f), 4(d), 5(f), (g) and (h)', 6(e) and (f), 7(f) and (g), 8(a), (b),

(c), (d) and (e), 9(c), 10(a) and (b) and ll(d), (e), (f) and (g) are reasonable and within the scope of permissible discovery; (2) Intervenor has neither answered nor objected to these interrogatories as required by 10 C.F.R. 5 2.740(b) (1975); and (3) Intervenor's responses constitute a failure to respond under 10 C.F.R. 5 2.740(f) (1975).

Accordingly, the Board directs Intervenor William E. Garner to respond fully to Licensee's interrogatories as stated above no later than seven (7) days from the date of this order and such responses shall be in writing and under oath or affirmation.

IT IS SO ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Thomas W. Reilly, Esq., Chairman Issue'd this day of, at Bethesda, Maryland 1976

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of TENNESSEE VALLEY AUTHORITY Docket Nos. 50-259 50-260 (Browns Perry Nuclear Plant, Units 1 and 2)

CERTIFICATE OF SERVICE I hereby certify that I have served the original and 20 conformed copies of the following documents on the Nuclear Regulatory Commission by depositing them in the United States mail, postage pre-paid and addressed to Secretary, U.S. Nuclear Regulatory Commission, Washington, D.C. "

20555, Attention: Chief, Docketing and Service.

Section:

Licensee's Second Motion for an Order to Compel Intervenor to Respond to Certain Interrogatories Licensee's Brief in Support of Second Motion for an Order to Compel Intervenor to Respond to Certain Interrogatories and that I have served a copy of each of the above documents upon the persons listed below by depositing them in the United States mail, postage prepaid and addressed:

Thomas W. Reilly, Esq., Chairman Dr. Frederick P. Cowan Atomic Safety and Licensing Board 22 Browns Lane U.S. Nuclear Regulatory Commission Bellport, New York 11713 Washington, D.C. 20555 William E. Garner, Esq.

Dr. Hugh C. Paxton Route 4, Box 354 Los Alamos Scientific Laboratory Scottsboro, Alabama 35768 P.O. Box 1663 Los Alamos, New Mexico 87544 Atomic Safety and Licensing Appeal Board James R. Tourtellotte, Esq. U.S. Nuclear Regulatory Commission Lawrence Brenner, Esq. Washington, D.C. 20555 Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 This 26th day of May, 1976.

William L. Dun Attorney for Licensee Tennessee Valley Authority

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