ML20043C721

Motion to Compel Answers to Interrogatories,Vermont Yankee Nuclear Power Corp Set 3.* Certificate of Svc Encl

ML20043C721
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	06/01/1990
From:	Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP.
To:	Atomic Safety and Licensing Board Panel
References
CON-#290-10420 OLA-4, NUDOCS 9006060102
Download: ML20043C721 (10)

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00CKE1ED t!WRC Filed: June 1,1990.

UNITED STATES OF AMERICA 90 #4 -4 P4 :05 NUCLEAR REGULATORY COMMISSION p ucE or SECHEl W before the D O C Kt htm :', W N !

M MWi ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of

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Docket No. 50-271-OLA-4 VERMONT YANKEE NUCLEAR )

(Construction Period POWER CORPORATION

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Recapture)

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(Vermont Yankee Nuclear

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Power Station)

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MOTION TO COMPEL ANSWERS TO INTERROGATORIES (VYNPC SET NO. 3)

Pursuant to 10 C.F.R. 6 2.740(f), the Licensee, Vermont Yankee Nuclear Power Corporation, moves that the Board enter an order compelling the intervenor, the State of Vermont ("SOV") to give proper answers to those of i

its " Interrogatories Propounded by Vermont Yankee Nuclear Power Corpora-tion to the State of Vermont (Set No. 3)" as are set forth herein. The interrogatories were served by mail on April 26, 1990; the answers were served by Federal Express on May 17, 1990.

L Introduction - Applicable Legal Principles.

The Licensee telles upon and respectfully refers the Board to the -

discussion of applicable legal principles contained in its two prior Motions to Compel filed under dates of April 24,1990, and May,1990, and its Reply to SOV' Answer in Opposition to [ Licensee's First) Motion to Compel, filed under date of May 17,1990. We supplement that discussion with a reference to a point of recurring applicability.

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in its responses to Licensee's first round of interrogatories, SOV used several terms which were not self-defining, and SOY then made a number of new assertions of purported fact the bases of which were not readily apparent. Licensee therefore followed up by asking SOV to define these new terms, and to state the factual bases for these new assertions.

In response to several of those follow-up questions -- specifically 5,13, l

14, and 15 -- SOY in effect responded that it did not wish to answer at this time:

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" Vermont objects to this interrogatory to the extent that it attempts to compel Vermont to do work or take actions in preparation for this case which it has not made the decision to perform. Vermont further objects to this interrogatory to the extent that it attempts to impose a schedule for doing such work within a relatively short discovery period.'

.l As a matter of law, SOV's assertion, that it can choose to disclose its case l

when and if it wants, is simply wrong. The Appeal Board long ago noted that such " contention" interrogatories are appropriate:

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' Judicial tribunals have long recognized that the party being inter-rogated would have to gather such information before trial in any event;Ithe only burden is to advance that compilation to an earlier i

stage."

in so holding, the agency was following hornbook law to the effect that "[a)n interrogatory will not be held objectionable as calling for research if it relates to details alleged in the pleading of the interrogated party, about which he presumably has information, or if the interrogated party would gather the information in the preparation of his own case.'8 As a practical matter, moreover, SOV's refusal to disclose its case during the discovery period threatens to lengthen and complicate these proceedings, by reducing the possibility of resolving issues by summary disposition, and 3

by forcing Licensee to present an affirmative case at hearing against vague and open-ended charges. Quite aside from the issue of fairness to Licensee, this Board as a matter of efficiency should compel SOY to respond to these questions, no later than the close of discovery.

11. Specific Interrogatory Answers, laterrogatory No.1.

Interrogatory:

Please identify each and every SALP report or "other enforcement actions" relating to VYNPS wherein SOV contends that NRC has placed 'importance" on " clearly established management controls" for the purpose of alleviating any " shortage of qualified replacement

' Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units I and 2), ALAB-613,12 NRC 317,334 (1980).

2Wright and Miller, Federal Practice and Procedure: Civil i 2174 at 555 i_

(1970)(footnotes omitted); see also cases cited therein.

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[ maintenance] personnel," as asserted in the answer to Interrogatory No. 8. Set 1 Responses at page 7.

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Response

Vermont objects to this interrogatory because it misstates Vermont's response to interrogatory No. 8. Vermont did not respond that, in SALP reports or enforcement actions specific to Vermont Yankee, NRC placed importance on clearly established management controls.

Notwithstanding and without waiving this objection, Vermont states that the sentence from part 2 of Vermont's Response to Vermont Yankee Interrogatory (Set No.1) No. 8:

"This fact is established by the importance placed on manage-r ment by NRC in such vehicles as SALP evaluations and enforcement actions."

was stated to indicate the importance attached to management control over nuclear plant activities. For example, the importance that NRC attaches to management is demonstrated by the SALP criteria, reproduced on page RI-i of NRC letter to Vermont Yankee of March 7,1990(Russell to Murphy),' Final Systematic Assessment of Licensee Performance (SALP) Report....'

The definition of each SALP' i

performance category, Category 1. Category 2 and Category 3, begins with the words, ' licensee management attention and involvement...."

The SALP process is set up to evaluate each aspect of licensee performance in terms of licensee management attention and involve-

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Argument:

SOV's answer to this perfectly reasonable follow-up question is evasive.

(in particular,it evades giving the accurate and responsive answer of'None.') -

in Interrogatory No, 8 of Licensee's first round of interrogatories.

Licensee asked 'Does SOY contend that ' clearly established management controls' can adequately compensate for a shortage of ' qualified replacement personnel', as those terms are used by SOV in sub-paragraph "c' of its Contention 77' The question asked about the link between controls and a personnel shortage, and called for SOV to state all the facts and evidence possessed by SOV bearing on the question.

In its answer, SOY asserted thit:

'Without clearly established management controls the shortage of I

qualified replacement personnel cannot be compensated for. This fact is established by the importance placed on management by NRC in such vehicles as SALP evaluations and enforcement actions."

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e In light of this answer, Licensee understandably followed up by asking SOY exactly where (if anywhere) the NRC has drawn such a link between controls and compensating for a personnel shortage. In its "an:wer* to the follow-up question, however, SOY ignores the topic of personnel shortage (which previously it had alleged as a basis to its contention) altogether.

Instead SOV chooses to answer another question, of its own design, as to what emphasis the NRC places on management controls in general. Licensee l

respectfully suggests that SOV should be compelled to answer the question l

asked, not some other question SOY may prefer but which was not asked, especially since the question asked seeks to pin down the factual basis (if any) t for one of SOV's own assertions.

If, in fact, "None" is the accurate and responsive answer to the question that was asked, the Licensee is entitled to have that answer on the record.

I laterrogatory No. 5.

Interrogatory:

Please define what SOV contends is included within the scop 6 of the term " correct controls" as used by SOY at page 7 of its Set i Re-sponses, and provide all the bases for your definition.

Response

l The term, " correct controls" as used in part 4 to Vermont's I

response to Vermont Yankee Interrogatory (Set No.1) No. 8, is a

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general reference to the changes necessary to correct the inadequacies in Vermont Yankee's maintenance program. A description of these changes was requested by Vermont Yankee Interrogatory (Set No. 2)

No. 6. As of this date we have yet to receive response to a single discovery request, and due to time spent responding to licensee's l

Interrogatories and motions, our evaluation has not progressed beyond i:

that described in response to Vermont Yankee Interrogatory (Set No.

2) No. 6.

Vermont has not determined "what....is included within the scope of the term *, and thus Vermont objects to this interrogatory to the extent that it attempts to compel Vermont to do work or take actions in preparation for this case which it has not made the decision to

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perform. Vermont further objects to this interrogatory to the extent that it attempts to impose a schedule for doing such work within a relatively short discovery period.

Argument:

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SOV's objections should be overruled, and a full response compelled, for the reasons stated in Section I above. SOV clearly is dodging here. In its 4

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Contention, SOY stated that " clearly established management controls" were needed. When Licensee asked what that meant, SOY said that " clear" controls were not enough, that " correct" controls were needed. Licensee then followed up by asking what " correct" controls meant, only to be told that SOV does not know, it is fundamentally unfair, Licensee respectfully suggests, for Licensee to be asked to defend against accusations when the authors of those accusa-tions themselves cannot--or will not--define them.

laterrogatory No.13.

Interrogatory:

For each and every assertion made by SOV in his Set i Responses at Interrogatory No.10.b. pages 10-12, please:

a. State each and every fact on which your assertion is based.

b. Describe all of the evidence in SOV's possession or of which SOY has knowledge that SOV contends establishes each such fact.

c. For each assertion, either provide the technical qualifications (education, employment history, licenses and certificates, experience, or other information that SOV contends establishes the qualifications of the person), of any person on whose expertise SOY relies for the assertion or state that SOY does not rely upon ~

the expertise of any person for the assertion.

Response

Vermont objects to this interrogatory because it attempts to i.

compel Vermont to do work or take actions in preparation for this j

case which it has not made the decision to perform. If Vermont l

Yankee wishes to argue in this proceeding that it can lure main-l tenance craftspersons from other industries and train them effective-(

ly, it is incumbent on Vermont Yankee, and not Vermont, to develop and present evidence on this point.

Argument:

SOV's objection should be overruled, and a full response compelled, for the reasons stated in Section I above. All that this interrogatory sought from SOY was the factual basis, possessed at that time by SOY, for a series of i

SOV's own assertions. There is simply no basis for SOY to object to revealing what it knows. Licensee cannot fairly be expected to meet its burden of proof if SOY is allowed to conceal the substance (or lack thereof) of its case.

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laterrogatory No.14.

interrogatory:

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j Please describe in detail what level of awareness SOY contends, at pages 10-11 of its Set i Responses, that " nuclear maintenance personnel" must have of 'the interrelationships between ECCS and f

other safety systems." Please also:

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c. State each and every fact on which your answer is based.

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b. Describe all of the evidence in SO\\": possession or of which SOY -

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'nas knowledge that SOV contends establishes each such fact, i

c. Provide either the technical qualifications (education, employment history, licenses and certificates, experience, or other information that SOY contends establishes the qualifications of the person), of any person on whose expertise SOY relies for the answer or state that SOV does not rely upon the expertise of any person for the answer.

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Response

Vermont ob,lects to this interrogatory on the same grounds as stated in respon.:e to the foregoing interrogatory. To the extent that this interrogatory seeks Vermont to quantify specifically the aware-ness that a maintenance craftsperson must have, without adequate procedural guidance, of " t]he interrelationships between ECCS and other safety systems with [the power producing systems of the plant,'

Vermont objects further on the basis that it would be unduly burdensome. Such quantification would amount to developing the

" precautions' sections of procedures which Vermont Yankee is I

apparently lacking.

Notwithstanding and without waiving these objections, Vermont states that nuclear maintenance craftspersons should be trained as outlined in INPO 86-018,' Guidelines for Training and Qualification of Maintenance Personnel", or receive the equivalent training. The required training and qualification should provide the required knowledge and skills to perform maintenance on all safety related systems, structures. and components. - Such training not only should provide maintenance craftspersons an awareness of interrelationships between ECCS and other safety systems but also between nonsafety systems that can aifect safety systems. INPO 86-018 states that maintenance craftspersons should have knowledge of: site or plant

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layout; impact of maintenance on ECCS Components, knowledge of-.

plant systems including alarm types, system block diagrams, impor-tance to plant operations / safety, effect of isolation systems com-ponents on operations and interrelationships with other plant systems; knowledge of control logic and diagrams, normal / abnormal perfor-mance and probable cause of abnormalindication; and any specialized skills needed.,

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The above answer should not be considered a complete listing of I

all guidance but gives examples of knowledge and skills that main-tenance craftspenons should have to attain the minimum awareness l

of maintenance activities performed on safety or nonsafety systems that may adversely effect ECCS systems and reduce the margin of plant safety to unacceptable levels. For this response, Vermont relies on the expert opinion of its technical consultant, Mr. H. Shannon 1

Phillips, whose technical qualifications were identified in response to Vermont Yankee Interrogatories (Set No.1).

Argument!

L SOV's objections, to the extent that they are identical to those made to the preceding interrogatory, should be overruled, and a full response compelled.

for the reasons stated in Section I above. As for SOV's objection that answering would be " unduly burdensome". SOY has not demonstraied any j

impropriety in being required to explain the factual basis for its own assertion. Moreover, the case law makes clear that such inquiries are both proper and prudent. E.g., Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units I and 2), AL.AB-613,12 NRC 317,334-35 i

(1980).

SOY admits that its response is incomplete. Given the baselessness of its objections, SOY should be compelled to respond to the full extend of its present knowledge.

Interrogatory No.15.

Interrogatory:

i Please describe in detail what level of awareness SOY contends, at page 11 of its Set i Responses, that " nuclear maintenance persontiel" L

must have of " requirements, commitments and regulations." Please also:

a. State each and every fact on which your answer is based.

b. Describe all of the evidence in SOV's possession or of which SOY has knowledge that SOY contends establishes each such fact.

c.

Provide either the technical qualifications (education, employment history, licenses and certificates, experience, or other information that SOY contends establishes the qualifications of the person), of any person on whose expertise SOY relies for the answer or state that SOY does not rely upon the expertise of any person for the answer.

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Response

Vermont objects to this interrogatory on the same grounds as j

stated in response to Interrogatory No.13. To the extent that this interrogatory seeks Vermont to quantify specifically the awareness that a maintenance craftsperson must have, without adequate procedural guidance, of " requirements, commitments and regulations" -

Vermont objects further on the basis that it would be unduly burdensome. Such quantification would amount to developing the

' precautions

• sections of procedures which Vermont Yankee is apparently lacking. Notwithstanding and without waiving these objections, Vermont states that the Vermont Yankee plant is a complicated facility consisting of numerous systems and controlled by rigorous safety requirements, and presenting the possibility of sccidents causing radiological effects upon local land and population.

As such, Vermont Yankee is rnore complicated than a coal-or oil-fired plant, or other industrial facility (the subject of Vermont Yankee Interrogatory (Set No.1) No.10 sub-part b), and the consequence of maintenance error is more serious. The maintenance l

craftspersons (who would perform maintenance at Vermont Yankee without adequate written procedures) must be aware of the require-ments, commitments and regulations, in order to be able to perform maintenance on systems without violating safety requirements, without endangering public health and safety, and without challeng-ing safety systems. For this response, Vermont relies on the expert opinion of its technical consultant, Mr. Shannon Phillips, whose technicalqualification were identified in response to Vermont Yankee Interrogatories (Set No.1),

Argument:

SOY here repeats the same fiawed objections as it made in the im-mediately preceding response. It is neither procedurally improper nor unduly burdensome to ask SOV to state the facts (if any) underlying its own Assertions.

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When stripped of its objections and irrelevance, SOV's answer to the l

question is simply to restate, without any elaboration or factual support, the assertion which prompted this follow-up question in the first place. A full j

response should be compelled, so that Licensee has some fair warning of what case it must defend against.

eys, R. K. Gad 111

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Jeffrey P. Trond Ropes & Gray One International Place Boston, Massachusetts 02110 Telephone: 617-951-7520 Dated: June 1,1990.

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'90 JLN -4 P4 :05 Certificate of Service LVFICE OF SECREIARY I, R. K. Gad 111, hereby certify tirue1Jtiljdhlt996J I made service of the within Motion to Compel, by mailing ' 5t@hhereof, first class mail, c

postage prepaid, as follows:

Robert M. Lazo Esquire Jerry Harbour o

Chairman Administrative Judge i

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Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S.N.R.C.

' U.S.N.R.C.

Washington, D.C. 20$55 Washington, D.C. 20555 Frederick J. Shon Adjudicatory File Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Panel U.S.N.R.C.

U.S.N.R.C.

Washington, D.C. 20555 Washinston, D.C. 20555 Anthony Z. Roisman, Esquire Ann P. Hodadon, Esquire Cohen, Milstein & Hausfeld Patricia A. Jehle, Esquire Suite 600 U.S.N.R.C.

1401 New York Avenue, N.W.

Washington, D.C. 20555 Washington, D.C. 20005 James Volz, Esquire Vermont Department of Public Service 120 State Street i

Montpelier, Vermont 05602 i

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R. K. Gad 111

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