ML17138A911
| ML17138A911 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 10/09/1979 |
| From: | Crutchin J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7911090030 | |
| Download: ML17138A911 (15) | |
Text
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
PENNSYLVANIA POWER AND LIGHT CO.
ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam E'lectric Station, Uni ts 1 and 2)
)
Docket Nos. 50-387 50-388 NRC STAFF'S ANSWER IN OPPOSITION TO ECNP'S MOTION FOR A PROTECTIVE ORDER AND CROSS MOTION TO DISMISS ECNP FROM THIS PROCEEDING In its Memorandum and Order on Scheduling and Discovery Motions dated August 24, 1979 the Licensing Board 'ordered the Environmental Coalition on Nuclear Power (ECNP) to file more adequate responses to the Staff's dis-covery requests.
The Order provided that such responses may include, if appropriate, specific objections to particular discovery requests.
Memo-randum and Order at 15-16.
The Staff had served interrogatories on ECNP on May 21, 1979.
On July 2, 1979, ECNP replied to those interrogatories.
The Staff deemed those answers unresponsive and moved to compel proper answers.
It was in ruling on that motion that the Board issued the subject Order of N
August 24, 1979.
I r
On September 17, 1979 ECNP filed a document entitled "Responses of ECNP Intervenors to Board Memorandum and Order Compelling Intervenors io Answer Applicant and Staff Interrogatories."
- However, the document is in reality a motion for a protective order-and the Staff is treating it as such.
For Ql See ECNP filing at 1, line 5 in text.
Vei~oeo~~ i4
the reasons set forth below the Staff opposes the ECNP motion and cross moves that ECNP be dismissed from this proceeding.
b Under 10 CFR 2.740(c) of the Commission's Rules of Practice, upon motion and for good cause shown, this Board may make any order in relation to a request for discovery which justice requires to protect a party from annoyance, embarrassment, oppression or undue burden or expense.
- However, under 10 CFR 2.732, the moving party has the burden of proving that its motion should be granted.
ECNP devotes the major portion of the first fourteen pages of its filing to "background information", complaints about its treatment by the Staff, the Applicant and the Board, the alleged handicaps under which it must function
/
and other generalized,.easons for its failure to respond more completely to the Staff's discovery requests.+
As the Board noted in its Memorandum and Order at page 9, such general objections to discovery are not acceptable.
To form the basis for a protective order, specific objections to particular inquiries must be advanced.~
- Moreover, ECNP has had over four mounths in 2a/
which to answer or state objections to answering the Staff's interrogatories.
As the Board further detailed, no matter who has the burden of proof on an
- issue, ECNP has a duty to identify the details of its case and the sources of information upon which it intends to rely.
Board proceedings are not
~
Cf. Metro olitan Edison Com an (Thr'ee Mile Island Nuclear Power Station, Unit No.
2, ALAB-474, 7 NRC 745, 748, concurring opinion at 750 (1978).
~2a Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2),
LBP-75-30, 1
NRC 579, 583 (1975).
3 games where the object is to catch other parties by surprise.
Memorandum and Order at 7.
ECNP also has a duty to follow the deadlines set and instruc-tions given by the Board.3/
- However, ECNP does not turn to the task of stating specific objections to particular discovery requests of the Staff until page 15 of its filing.
Even then it does not address each of the interrogatories separately as required by the Commission's Rules of Practice and pointed out by the Staff.'/ It addresses them in fourteen groups.
Many interrogatories are addressed in more than one group..
ECNP in its item number 1 addresses Staff interrogatories G-1 and G-2.
ECNP objects to the Board's grant of the Staff's request that ECNP be ordered to P
supplement its responses to Staff interrogatories G-1 and G-2 at least 60 days in advance of the scheduled hearing date.
It also states that the Staff refuses to forward necessary documents upon which ECNP would rely and would require for preparation of its case, and that this places ECNP in an impossible position.
In objecting to the "60-day requirement,"
ECNP is not objecting to a Staff interrogatory, but to a Board order.
Clearly, the Board has the authority
+3 See:
Three l1ile Is'land Nuclear,
~su ra; Vermont Yankee Nuclear Power
~Cor
. v.
- NROC, 835 US 519 1978).
g4 See:
"NRC Staff's Motion for an Order Compelling ECNP to Properly Respond to the Staff's Interrogatories" and attachments thereto.
The Staff incorporates herein the positions on ECNP responses set forth in that document.
under 10 CFR 2.711(d) to establish a deadline for supplementation of responses to interrogatories and has done so.
The Staff's refusal to forward documents is not, as ECNP would make it
- appear, an improper action by the Staff.
The Staff has done all, and more than, it is required to do with respect to production of documents.+
From a reading of the ECNP motion it appears that ECNP has not fully availed itself of the records made available under 10 CFR 2.790, nor has it taken advantage of the other documents to which the Staff has directed it.
Yet ECNP refuses to respond based on a claim of awaiting further discovery.
- Further, such a general objection is not sufficient without specifying what discovery requests are pending and how the responses to those requests are expected to make possible the answering of interrogatories that cannot now be answered.+
ECNP has provided no basis for the issuance of a protective order denying the Staff the information sought by its interrogatories G-1 and G-2.
In its item number 2
ECNP addresses "All"of the Staff's interrogatories.
ECNP claims that everything used by ECNP in formulating its contentions and responses represents "an accumulation of information, knowledge, analysis and synthesis over the period of more than a decade "and that, therefore, no specific documents can be cited as the sole or primary ground for ECNP contentions or positions..
According to ECNP "the production of materials to Q5 See:
10 CFR 2. 744 and Staff Counsel's Letters dated June 27, and September 13, 1979 to Dr. Johnsrud.
Q6
~P11 rim at 585.
satisfy the Staff's demand would be burdensome and oppressive in the extreme, unduly expensive, and impossible as well."
As this Board noted, undue burden and expense is that beyond what is normally necessary to identify the details of a party's case and the sources of information upon which it intends to rely.
Memorandum and Order at 7.
ECNP's objection is not a valid one for avoiding its obligation to respond to proper discovery requests for infomation in its possession.
The objection is too general and is evasive.
ECNP set forth the contentions.
It has a duty to detail the bases for the contentions.
If these bases cannot be provided the contention is improper.
In its item number 3
ECNP addresses Staff Interrogatories S-1.2 through S-1. 7, S-5.1 through S-5.3, S-5. 6, S-5. 7, S-l.ll through S-1.14, S-7. 2, S-7.3, and S-8.4.
In "upport of its request for a protective order ECNP argues that the Staff has the burden of proof.
The purpose of discovery is to prevent surprise at the hearing and fully appraise the other parties of any knowledge or information of matters that will be put in evidence or might aid in the. discovery of evidence or the preparation of evidence.
See Memorandum and Order at 5-7.
The fact that one party or another has the burden of proof does not lessen the duty of all parties to fully and completely answer discovery questions on contentions in controversy so that they can be fairly met in the proceedings.~
If ECNP has no knowledge, has made no 7/
hypothesis, or has made no calculations to support the assertions made in its contentions, it should plainly state so.
j7
~Pil rim at 555.
In its item number 4
ECNP addresses Staff Interrogatory S-1.8 which asks ECHP to specify each health effect of radon-222 that it believes will occur and to state in detail how it believes that health effect is caused.
ECHP states that it does not understand the question.
ECHP further states that to specify each of these future health effects and how each is caused would be burdensome and oppressive in the extreme and that it would in fact be impossible.
ECNP's statement that it is unduly burdensome and oppressive--
indeed impossible to answer a question which it claims not to understand is incongruous.
The Staff merely seeks to determine what types of health effect's premature cancer deaths, genetic effects, or others ECHP believes will occur and what ECNP believes would cause them.
ECNP has not stated a
valid reason for its refusal to answer the interrogatory nor a valid basis for a protective order.
//
In its item number 5
ECNP addresses Staff interrogatories S-1.1 through S-l.10, S-3.1 through S-3.4, S-5.6 and S-5.7
- ECHP, as a basis for a pro-tective order says that its calculations and assumptions are in the record of another proceeding.
- Again, as the Board noted at page 9 of its tlemo-randum and Order, such general "evasive" objections to discovery are not acceptable.
In its item number 6
ECNP addresses Staff interrogatories S-1.10 through'-1.15 and S-9.7 Again ECNP says in effect that the Staff has the burden of
- proof, says that it has made no calculations or assumptions for isotopes other than radon-222 and refers to its response number 4.
Although its
answer with respect to having made no calculations or assumptions for isotopes other than radon-222 (if shorn of its equivocation) would be an acceptable response to S-1.14, ECNP has not stated a valid basis for a protective order.
A claim that the Staff has the burden of proof is not a valid objection.+
ECNP in its item number 7 addresses Staff interrogatories S-2.1 through S-2.5, S-8.1 through S-8.3, S-9.1 through S-9.6 and S-18.1 through S-18.3.
ECNP claims that it did not sponsor these contentions, that the Staff's interrogatories "misrepresent" ECNP contentions and that discovery under this condition constitutes an undue burden and expense.
ECNP has not stated a valid objection to discovery.
Parties may obtain discovery of any matter, not privileged, which is relevant to the matters in controversy in this
/
proceeding, whether re'lated to the claim or defense of the party seeking discovery or any other party.
If ECNP has no evidence on these matters, and intends to introduce no evidence on these matters it may plainly state so.
ECNP in its item number 8 addresses Staff interrogatories S-l.10, S-2.5 and S-2.5.
ECNP.refers again to its response number 4, and says again that the Staff has the burden of proof.
That is not a valid.objection.9/
ECNP in its item number 9 addresses Staff interrogatory S-5.1.
ECNP says that it has reason to believe that a document exists in English translation
/
~snm at 8.
by NRC (from the original German) which describes how certain NRC models underestimate the effects of certain radioisotopes on man and that until NRC supplies this document, requested months ago, it is impossible to answer this question.
In its "first-round discovery" of the Staff ECNP requested among others "which refer to the cost-benefit analysis and to the various aspects of the health effects of the nuclear fuel cycle" a "3c]opy of the NRC translation of a report by Dieter Teutel (sic) of the University of Heidelberg."
Prior to this time the Staff was unable to identify this document.
ECNP now supplies more information on the document it seeks.
We believe it is the so-called "Wyle Report."
The Staff has recently mailed to ECNP a copy of the current version of the English translation of this report.
A D. Tuefel is listed as the twelfth of fourteen preparers of the report.
Since this document has been supplied, ECNP can now supplement its response to interrogatory S-5.1.
Presently ECNP's reply to this interrogatory is not responsive.
ECNP in its item number 10 addresses Staff interrogatories S-5.1 through S-5.9, S-6.2 through S-6.4, S-7.2, S-7.3 and S-7.6 through S-7.10.
ECNP refers generally to information that it claims has been provided to the Staff in another proceeding and again implies that the Staff has the burden of proof.
ECNP has not provided a proper response to the Staff's interroga-tories nor has it stated a valid objection to those interrogatories.
In its item number 11 ECNP addresses Staff interrogatories S-6.1, S-6.4 and S-7.16.
ECNP states
- that, because in the Salem Unit 1 proceeding the Staff ee:
1 llrlm at 585.
concluded that the TMI-2 accident was indeed a Class 9 accident, ECNP believes "this question" to have been fully answered in its previous "response."
It says the Staff has the burden of proof and seeks a protective order.
In support of its motion to compel discovery the Staff noted that the events at THI-2 had not occurred at the time ECNP filed its contentions and thus could not have provided the basis for a contention at the time the contention was filed.
An allegation that the Staff has the burden of proof is unavailing.~ll/
In its item number 12 ECNP addresses Staff interrogatories S-6.1 through S-6.5, S-7.1 and S-7.4 through S-7.15.
ECNP states that it is awaiting discovery from the Staff, that beyond what it has said "in the press" it can supply nothing further and that the Staff has the burden of proof.
As noted
- above, a refusal to respond based on a claim of awaiting further discovery, as a general objection, is not sufficient without specifying what discovery requests are pending and how the responses to those make possible the answering of interrogatories that requests are expected to cannot now be answered.
12/
The Staff seeks ECNP's basis for its contentions at the time they were filed.
As also noted
- above, a claim that the Staff has the burden of proof is equally unavailing.~
~
~
13/
In its item number 13 ECNP addresses Staff interrogatories S-6.1 through S-6.5, S-7.16, S-1.10, S-7.4, S-7.5 and S-7.11.
As a basis for a protective 11
~crim at 58
~12 Id.
~13 Id.
order ECNP says merely that "ECNP believes this question has been answered fully."
Such general "evasive" objections to discovery are not acceptable.
ECNP has not stated a valid objection to Staff discovery.
0 In its item number 14 ECNP addresses Staff interrogatory S-8.4 In that interrogatory the Staff asked ECNP to set forth in detail each calculation made and to specify and state its bases for all assumptions made in reaching its conclusions about the inability of the reactor pressure vessel to with-stand thermal shock following a loss of coolant accident (LOCA).
ECNP states that it has made no independent calculations and that the basis of its concern is contained at pages 146-7 of "Nuclear Regulatory Commission Staff Report Concerning Allegations by Robert Pollard" dated February 28, 1976.
The material appearing there appears to be a statement by the Staff of reasons why it beli ves thermal shock to the reactor vessels at Indian Point Units 2 and 3 will not be a safety problem.
Clearly, this does not tend to support an allegation that the Susquehanna Units 1 and 2 reactor vessels will not survive a post-LOCA thermal shock.
ECNP claims that it is awaiting further discovery does
- not, as noted
- above, provide support for a refusal to respond without a specification of what discovery requests are pending and how the responses to those requests are expected to make possible 14/
the answering of interrogatories that cannot now be answered.
ECNP has neither adequately responded to the Staff's discovery requests nor provided specific objections to particular discovery requests sufficient to
justify issuance of a protective order.~
- Thus, ECNP has not complied with the Board's Memorandum and Order on Scheduling and Discovery dated August 24, 1979.
For the reasons discussed above ECNP's motion for a protective order should be denied, and ECNP should be dismissed from this proceeding for its failure to obey the Board's Order.
The Staff also requests that the Contentions raised by ECNP aloneBoard Contentions 5, 7, 8, and 18be dismissed as issues in the proceeding.
However, the Staff suggests a stay in the effec-tiveness of the dismissal action for fourteen (14) days to allow ECNP to comply with the earlier Order of the Board compelling it to more adequately respond to the Staff's discovery requests.
The Staff urges that the dismissal order provide for'automatic dismissal absent application to the Board for its vacation, and procF of compliance, by ECNP.
16/
Respectfully submitted, Dated at Bethesda, MD this 9th day of October, 1979
. James M. Cutchin, IY Counsel for NRC Staff
~15 This is not to imply that certain individual responses to the Staff's interrogatories are not sufficient.
See ECNP answers to interrogatories S-1.5, S-4.1 through S-4.4, S-5. 2, S-6. 2, S-7.2, S-7.3, S-7.9 and S-7.12 through S-7.15.
- However, as a whole the responses are evasive and do not tell the basis of intervenor's contentions.
See, for example, ECNP. answers to interrogatories S-1. 2, S-1.3, S-3. 1 and S-6.1.
See furth,.r ECNP objec-tion 10 at p.
16 in its Response to Board Memorandum and Order.
In total the ECNP responses to the interrogatories, particularly as supplemented in its latest motion seem designed to obfuscate the bases of its contentions rather than to illuminate those bases.
~16 See:
Offshore Power S stems (Manufacturing License for Floating Nuclear Power Plants, LBP-75-67, 2
NRC 813, 817 (1975).
UNITED STATES OF Ai'l="RICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PENNSYLVANIA POWER AND LIGHT CO.
ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam Electric Station, Units 1
and 2)
)
)
)
Docket Nos.
50-387
)
50-388
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER IN OPPOSITION TO ECNP'S MOTION FOR A PROTECTIVE ORDER AND CROSS MOTION TO DISMISS ECNP FROM THIS PROCEEDING" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comnission's internal mail system, this 9th day of October, 1979:
Charles Bechhoefer, Esq.,
Chairman*
Atomic Safety and Licensing Board Panel U.S-. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Glenn 0. Bright*
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Oscar H. Paris*
Atomic Safety and Licensing Board Panel V.S. Nuclear Regulatory Commission Washington, D.C.
20555 Jay Silberg, Esq.
Shaw, Pittman, Potts and Trowbridge 1800 M Street, N.W.
Washington, D.C.
20036 Dr. Judith H. Johnsrud Co-Director Environmental Coalition on Nuclear Power 433 Orlando Avenue State College, PA 16801 Mr. Thomas M. Gerusky, Director Bureau of Radiation Protection Department of Environmental Resources Commonwealth of Pennsylvania P.O.
Box 2063 Harrisburg, PA 17120 Ms. Colleen Marsh Box 538A>
RDPr4 Mountain Top, PA 18707 Mrs. Irene Lemanowicz, Chairperson The Citizens Against Nuclear Dangers P.Q.
Box 377 RDP1
- Berwick, PA 18503
Susquehanna Environmental Advocates c/o Gerald Schultz, Esq.
500 South River Street Wilkes-Barre, PA 18702 Atomic Safety and Licensing Appeal Board Panel*
U.S. Nuclear Regulatory Cormission Washington, D.C.
20555 Atomic Safety and Licensing Board Panel*
U.S. Nuclear Regulatory Comnission Washington, D.C.
20555 Docketing and Service Section*
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Bryan A. Snapp, Esq.
Pennsylvania Power 8 Light Company Two North Ninth Street Allentown, PA 18101 Mr. Robert M. Gallo Resident Inspector P.O.
Box 52 Shickshinny, PA 18655 James M. Cutchin, IY Counsel for NRC Staff