ML19261C339
| ML19261C339 | |
| Person / Time | |
|---|---|
| Site: | Green County  |
| Issue date: | 03/05/1979 |
| From: | Lewis S, Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7903220287 | |
| Download: ML19261C339 (17) | |
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Ja a c a ; w UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3/5/79 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket No. 50-549 POWER AUTHORITY OF THE STATE tF
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(Greene County Nuclear Power Plant)
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XXXXX STATE OF NEW YORK DEPARTf1ENT OF PUBLIC SERVICE BOARD Oft ELECTRIC GENERATION SITIflG AND THE ENVIRONiiENT In the Matter of the Application of the )
1 Case 80006 POWER AUTHORITY OF THE STATE OF NEW YORK
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(Greene County Nuclear Generating
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Facility)
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NRC STAFF'S OBJECTIONS TO INTERROGATORIES AND FIRST REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED BY THE POWER AUTHORITY OF THE STATE OF NEW YORK Pursuant to 10 CFR !52.740(b) and 2.744(b) of the regulations of the Nuclear Regulatory Commission, the NRC Staff objects to certain inter-rogatories (as designated herein) propounded by the Power Authority of the State of New. York (PASNY) in interrogatory sets 1 through 4 and to Items 3 and 6 of PASNY's First Request For Production of Documents, for the reasons set forth below.
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DISCUSSION I.
Interrogatories Which Are Objectionable Since They Are Not Relevant to Matters In Controversy In This Proceedina.
In general, discovery is obtainable regarding any matter which is relevant to the issues in controversy in a proceeding or is reasonably calculated to lead to the discovery of admissible evidence.
10CFR$2.740(b).
Rel e-vancy in Commission proceedings is determined on the basis of the contro-verted subject matter as identified in the Prehearing Order. Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), LBP-77-13, 5 NRC 489 (1977).
The Staff objects to the following interrogatories on the ground that they are not relevant to any matter in controversy in this proceeding.
Set 1 Nos. 10, 18. The time spent on the Greene County FES by members of the Oak Ridge Laboratory team is not relevant to any issue in this proceeding, nor likely to lead to the discovery of admissible evidence. The amount of time spent on the review bears no relation to the quality of the analysis.
No. 16.
Insofar as this interrogatory asks for information on what projects any former reviewer is presently engaged in, it is not relevant to any issue.
Specifically, present assignments have no bearing on the qualifications possessed at such earlier time as a particular reviewer may have been working on the Greene County DES or PFES.
Nos. 71(c), 77, 78(c). The amount of expenditures incurred by the Commis-sion, or which would be incurred for certain possible future studies, is not relevant to any issue.
Set 4 No. 281. To the extent it asks whether seasonal cperations generally have high attrition rates, the interrogatory is not directed at any specified issue in this proceeding related to Lehigh.
II.
Interrogatories Which Are Objectionable Since They Require The Staff To Compile Data, Do Additional Research, Or Make Calculations.
NRC regulations require the Staff to respond to interrogatories if answers are not reasonably obtainable from any other source.
However, these regulations do not require the Staff to perfom research or compile data not readily known by it, especially if the data is equally avail-able to' the party propounding the interrogatories.
In the Matter of Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), LBP-75-30,1 NRC 579, 584 (1975); 4A Moore, Federal Practice, paragraph 33.20, pp.33-103; In, the Matter of Project Management Coro., Tennessee Valley Authority (Clinch
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River Breeder Reactor Plant), Order Concernina Staff Objections to NRDC Tenth Set of Interrogatories, Docket No. 50-537 (June 8, 1976).
The Staff is also not required to perfom calculations which it did not perform in its original analysis.
See, Pilgrin Unit 2, suora.
The interrogatories identified below ask the Staff to use methods of analysis not mentioned by the Staff as a basis for its findings, and to provide PASNY with the results of such analyses.
There is no indication in these interrogatories that PASNY is incapable of doing these analyses itself or that the data to be used in the analyses would not be available to PASNY. Therefore, the Staff should not be required to perfom the extra activities requested by PASNY.
Set 1 No. 28 - Applicant asks Staff to provide "each and "every writing detail-ing changed facts between the time of the issuance of the DES and the FES."
Most such writings were originated by the Applicant and, therefore, available to it. To the extent they were originated by others, we believe them to be available in the Public Document Room.
Nos. 32, 33, 34, 35.
The Staff did not assign percentage weightings to these factors.
No. 62(b), 62(d). The Staff does not have such a transparency or full color reproductions.
No. 74(e), 74(f). The Staff has not performed such a ranking.
No. 75(c).
Insofar as it asks the Staff to estimate the cost of per-forming geological / seismological analyses for alternative sites, Applicant is requesting an analysis that Staff did not undertake as part of its review.
No. 80.
Staff is not required to undertake an analysis of the hearing record for Applicant's benefit.
No. 82(b), 82(c).
Staff has not developed such a list as part of its analysis.
No. 98. Staff has not performed a " cost benefit analysis" for each alternate site.
Set 2 No. 110(a). The portion of this interrogatory asking Staff to indicate all other licensing actions where similar monitoring was required, would impose upon Staff the obligation of doing research for Applicant. The Final Environmental Statements which would have to be examined to answer this question are available to Applicant.
No. 141.
The Table on p. 3-23 goes through 1976.
Staff is not required to extend the table through later years at Applicant's request, since the necessary information is equally available to Applicant.
Set 3 No. 186. The Staff objects to that portion of this interrogatory (the last sentence) which asks it to perform an evaluation of the impacts of Appli-cant's references on Staff's analysis.
Applicant is in a better position to do this analysis than is Staff.
Nos. 194(c),194(d). This interrogatory asks Staff to perform research for Applicant on other Final Environmental Statements where opportunity costs have been used in the cost / benefit analysis. The Final Environmental Statements necessary to perform this research are readily available to Applicant.
No.196.
This interrogatory asks Staff to do a calculation based upon Applicant's approach.
Applicant has the necessary information available to it to perform this calculation.
No. 198.
Applicant asks Staff to undertake a calculation based upon "recent developments regarding the availability and cost of petroleum."
Aside from the vagueness of the request, Applicant is as capable of making the calculation as is Staff.
No. 202.
The interrogatory asks Staff to perform additional calculations based on fuel costs supplied by Applicant. Applicant can readily perform this calculation itself.
No. 210. The Staff objects to that portion of the interrogatory which asks it to develop additional tables depicting the effects of variations in assunptions which the Staff discusses on p. 8-19.
(Staff does not object to the earlier part of the interrogatory which requests details of the sensitivity calculations.)
Nos. 227, 229(b). Applicant is asking Staff to perform research for it as to the Commission's treatment of sunk costs.
Applicant has not demonstrated that it is unable to perform such research itself.
Staff will, however, determine whether there are any " internal" documents responsive to this request which have not been made available to the public and will make them available to Applicant.
Set 4 No. 258. Applicant asks Staff to provide a revised FES section based upon certain assumptions posited in the interrogatory.
Applicant may fom its own views as to the impact of such assumptions on the Staff's analysis, but cannot compel Staff to revise its FES on this basis.
No. 261. The interrogatory asks Staff to perform research for Applicant on Commission cases to determine where lost opportunity costs have been previously considered.
Staff believes it is appropriate for Applicant to conduct its own research on this subject.
No. 282. The second part of the interrogatory asks Staff to "[p]rovide the production man-hours per year at Lehigh's Alsen facility for the last ten years." This information is equally as available to Applicant as to Staff.
No. 283.
The interrogatory asks Staff to provide details on yearly variations in Lehigh's employment from 1973 through 1978.
This infor-mation is clearly as available to Applicant as to Staff.
III.
Items 3 And 6 Of PASNY's First Request For Production Of Documents Are Objectionable Because In Form The Request DoesNotComplyWith10CFR52.744AndBecauseThe Information Requested Is Not Necessary To A Proper Decision In This Proceeding.
If a document is somehow exempt from disclosure under 10 CFR 32.790, a party to a licensing action may serve a request for the production of such a document upon the Executive Director for Operations (EDO).1/
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Forpurposesofrespondingtothedocumentrequestunder$2.744 and interposing objections thereto, MRC Staff counsel are acting on behalf of the EDO.
Under this rule the request must describe the desired document or category of documents requested with reasonable particularity, and must specify why such document or category of documents is relevant to the proceeding.
If the ED0 determines that the documents requested are not relevant, or that they are exempt from dis-closure under 52.790 and are not necessary to a proper decision in the proceeding, or that the information in these documents is reasonably obtainable from another source, he must advise the requesting party of these objections.
It would then be up to the request-ing party to apply to'the presiding officer in the licensing action to compel their disclosure.
Items 3 and 6 of PASNY's First Recuest For Production of Documents refer to notes made and taken on written and unwritten source material, and notes taken on the view analysis conducted by the Staff.
These items seem to be requesting the personal, handwritten notes made by Staff members in perfoming their daily tasks.
The Commission's regulations make it clear that such personal notes are not final NRC records and do not, therefore, have to be made available in the Commission's Public Document Rooms.
10 CFR 52.790(a) n.10.
Under the Freedom of Information Act, handwritten notes of individuals are not considered agency records at all and do not have to be disclosed.
Porter County Chapter of the Izaak Walton Leacue of America, Inc. v. AEC, 380 F. Supp. 630, 633 (1974).
Disclosure of such documents would invade the privacy of and impede the working habits of individual Staff members, because they could never commit anything to writing which they would not, for whatever reason, want disseminated publicly.
Izaak Walton Leacue, supra, 380 F. Supp. at 633. The criteria for dete. mining whether such notes are agency records are: 1) whether they are prepared by a Staff member for his/her own use;
- 2) whether they are circulated to or used by anyone other than the author;
- 3) whether they are discarded or retained by the author at his own dis-cretion in his own personal file; and 4) whether anyone other than the author exercises control over them.
Izaak Walton Leaoue, supra, 380 F.
Supp. at 633. Application of these criteria to the requested docu-ments--personal notes taken on books read by a Staff member and notes taken on a view analysis --indicate that they are " personal" and need not bedisclosedunder52.790.
Similarly, they should not be reachable by a request under 52.744, since they are not NRC records.
Even if these personal notes were to be considered agency documents for 2.744 purposes, PASNY would not be entitled to their production.
In its 2.744 request PASNY makes a general statement that all materials re-quested are relevant, and necessary for a proper decision in this pro-ceeding. There is no specific statement, as required by 10 CFR 52.744(a),
as to why the personal notes of Staff members involved in the visual, scenic, historic, cultural, and aesthetic analysis would be relevant to this proceeding.
Items 3 and 6 of PASNY's request are also objectionable because, in additiontobeingexemptfromdisclosureunder52.790,theyarenot necessary to a proper decision in this proceeding, and the information contained in the notes is obtainable from another source.
The documents on which these notes were taken will be provided for PASNY's inspection.
Therefore, the information is reasonably obtainable by PASNY from other sources.
IV.
Interrocatories Which Are Objectionable Due to Vacueness Certain of the interrogatories are too vague for the Staff to understand and be able to answer. On this ground the Staff objects to the following interrogatories:
Set 3 No. 217.
Applicant asks Staff to "[d]iscuss the instancts in which possible, rather than actual, effects were given determinative weight in recommending alternative sites." Vithout specification of where in the FES such " instances" occur, Staff cannot respond.
No. 233.
Applicant asks Staff to "[e]xplain how [it] used the concept of
' reasonableness' with regard of (sic) incremental costs of alternate sites as that item is used in the National Environmental Policy Act
42U.S.C.34332(2)(c)." The term " reasonableness" does not appear in the cited section of ilEPA. Without specification of the derivation of the term, Staff is unable to respond.
Set 4 No. 271. Applicant asks:
"Would a private utility siting at Cementon have to be found acceptable in all environmental and aesthetic respects to be considered as a lost opportunity cost"? Staff does not understand what nexus is asserted between environmental and aesthetic acceptability and lost opportunity cost.
C0t:CLUSION For the foregoing reasons, the Staff objects to the interrogatories identified above, and to Items 3 and 6 of PASNY's First Request For
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Production of Documents.
Respectfully submitted,
'E e en H. Lewis Counsel for NRC Staff
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h Janice E. Moor'e Counsel for NRC Staff Dated at Bethesda, Maryland this 5th day of March,1979.
UtillED SLATES OF A!; ERICA
!!UCLEAR REGULA10RY COI /.15SI0rt BEFORE THE ATOMIC SAFETY AID LICEi!Slf:G B0AP.D In the Matter of POWER AUTHORITY OF THE STATE OF
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llEW YORTs
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Docket fio. 50-549
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(Greene County fluclear Power Plant)
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xxxx STATE OF flew YORK DEPARTliENT OF PUBLIC SERVICE BOARD Oil ELECTRIC GEf!ERATI0tl SITIllG AND THE ENVIR0!!MEtiT-In the Matter of the Application of the )
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POWER AUTHORITY OF THE STATE OF
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11EU YORK Case 80006 (Greene County fluclear Generating Facility)
CERTIFICATE OF SERVICE I hereby certify that copies of "f1RC STAFF'S OBJECTI0t45 TO IrlTERR0GATORIES AtlD FIRST REQUEST FOR PRODUCTI0i10F DOCUMErlTS PROP 0UtiDED BY THE POWER AUTHORITY OF THE STATE OF fiEW YORK", 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 fluclear Regulatory Commission's internal mail system, this 5th day of March, 1979:
Andrew C. Goodhope, Esq., Chairman Honorable Edward D. Cohen Atomic' Safety and Licensing Board Presiding Examiner 3320 Estelle Terrace Public Service Commission Wheaton, Maryland 20906 Empire State Plaza Agency Building 3
- Dr. Richard F. Cole Albany, ?!ew York 12223 Atomic Safety and Licensing Board U. S. fluclear Regulatory Commission Honorable Donald Carson Washington, D.C.
20555 Associate Hearing Examiner Department of Environmental Dr. George A. Ferguson Conservation Professor of fluclear Engineering 50 Wolf Road Howard University Albany, it Y.
12223 Washington, D.C.
20666
Arthur L. Reuter, Esq.
Greene County Farm Bureau Attorney at Law Alfred Partridge, Secretary Sharpe's Landing East Durham, New York 12423 Germantown, New York 12526 Algird F. White, Jr., Esq.'
Town of Athens DeGraff, Foy, Conway and c/o Alan Francis Ruf, Esq.
Holt-Harris
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Meadow, Ruf and Lalor, P.C.
90 State Street 8 Reed Street Albany, New York 12207 Coxsackie, New York 12051 Nancy Spiegel, Esq'.
Mr. Peter D. G. Brown Staff Counsel Chairman State of New York Mid-Hudson Nuclear Opponents Public Service Commission P. O. Box 666 Empire State Plaza New Paltz, New York 12561 Albany, New York 12233 Ms. Rosemary S. Pooler Columbia County Survival Committee Executive Director P. O. Box 27 New York State Consumer Germantown, New York 12526 Protection Board 99 Washington Avenue Albany, New York 12210 Edward G. Cloke, Esq.
Lewis R. Bennett, Esq.
Steenberg & Cloke Assistant General Manager -
28 Second Street General Counsel Athens, New York 12015 Power Authority of the State of New York Albert K. Butzel, Esq.
10 Cclumbus Circle Butzel & Kass New York, New York 10019 45 Rockefeller Plaza Suite 2350 Village of Catskill New York, New York 10020 c/o Daniel K. Lalor, Esq.
Meadow, Ruf and Lalor, P.C.
Edward W. Hyland, Vice President -
8 Reed Street General Counsel and Secretary Coxsackie, New York 12051 LeHigh Portland Cement Company 718 Hamilton Mall George J. Pulver, Jr., Esq.
Allentown, Pennsylvania 18105 Bagley, Chadderdon, Pulver
& Stiefel William J. Spampinato, Esq.
302 Main Street Rosenberg & Spampinato P. O. Box 486 443 Warren Street Catskill, New York 12414 Hudson, New York 12534 Citizens to Preserve the Hudson Anthony Scott, Mayor Valley Village of Athens c/o Robert J. Kafin, Esq.
93 N. Washington Street Miller, Mannix, Lemery &
Athens, New York 12105 Kafin, P.C.
11 Chester Street Glenns. Falls, New York 12801 Mr. John flickolitch Honorable fiaurice D. Hinchey Cementon Civic Association Assemblyman 70 Short Street 101st District Cementon, flew York 12415 68 Livingston Street Jeffrey Cohen, Esq.
New York State Energy Office Dr. Meredith Thompson, Assistant Swan Street Building Contaissioner - Sanitary Core 1, Second Floor Engineering Albany, New York 12223
!!cw York State Dept. of Health Empire State Plaza
!!adison Avenue John Neukirk, Executive Albany, New York 12237 Assistant to the Cocaissioner Dept. of Agriculture & Markets Honorable Mario Cuomo, Secretary State Campus, Cuilding 8 of State Albany, flew York 10D07 ATTN:
H. G. Williams, Division of State Plannino John C. Bagley, Esq.
162 Washington Avenue Catskill Central School District Albany, New York 12210 P. O. Box 486 Catskill, flew York 12414 Honorable Peter A. A. Berle, Commissioner
.S. C. Delucia, Supervising Dept. of Environmental Conser-Principal for Coxseckie-Athens vation Central School District 50 Wolf Road Curtis & Warren Albany, New York 12233 Coxsackie,llew York 12051 Mr. James F. Davis Honorable Samuel J. Abate, State Geologist Executive Director Education Building H.1dson River Valley Cominission Albany, New York 12224 Enpire State Plaia Agency Building #1 Commissioner Albany, New York 12238 NYS Office of Parks & Recreation Empire State Plaza David H. Engel, Esq.
Agency Building #1 Assistant Counsel for Energy Albany, New York 12238 ilew York State Department of Environmental Conservation Ivan P. Vamos, Director of 50 Wolf Road Planning and Research Albany, New York 12233 NYS Dept. of Parks & Recreation Empire State Plaza Mr. Paul Merges Agency Building #1 Office of Environmental Analysis Albany, New York 12238 Dept. of Environmental Conservation Room 414 Mr. Ralph Kessler 50 Uolf Road P. O. Box 160 Albany, New York 12233 Elizaville, New York 12523
Dr. Peter J. R. Buttner, Director fir.11. Lee Davis Enviror, mental Manaycaent Catskill Teachers Asso~ciation I;YS Parks & Recreation West Main Street Albany, I!cw York 12238
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Catskill, tiew York 12414, Empire
- te Plaza Peter R. Correlli, Executive Joseph Leggio, Chainnan Director Greene County Legislature The Catskill Center for Conser-Court !!ouse vation and Development, Inc.
Catskill, flew York 12015 River Street llobart, New York 13788
!!arry I.. Palmer, Chairman Robert C. Stover, Esq.
Power Plant Comnittee
!!orwick, Raggio, Jaffe & Kayser 30 SoJth Franklin Street 10 East 40th Street Athe'is, tiew York 12015 flew York, tiew York 10016 Mrs. Loretta Simon Mr. George Paul Moran Greene County Planning Director.
Local 106 Box 514 International Union of Operating Cairo, !!pw York 12413 Engineers 1044 Broadway Jeffief P. Englander, Esq.
Albany, llew York 12204 Hudson Valley District Council of Carpenters Francis W.11il frank, Esq.
Friedlander, Gaines, Cohen Green County Federation of Rosenthal & Rosenberg Sportsman Clubs 1140 Avenue of the Americas 156 Jefferson IIcights
!!cw York, flew York 10036 Catskill, flew York 12414 Mr. John R. Grover Joseph V. Angiolillo, Esq.
Administrative Office of the for Albany-Greene County City of Hudson Power Committu Hudson Community Development 25 Bergen Street and Planning Agency Brooklyn, tiew York 11201 32 Uarren Street Hudson, flew York 12534 Ms. Mary Berner, et al.
R.D. #1, Box 40 Robert Francello, President Athens, liew York 12015 Board of Education Superintendent's Office Mr. Gerald Townley Saugerties Central Schools R.D. #1 Washington Avenue Athens, flew York 12015 Saugerties, tiew York 12477 Honorable Kenneth Huemmer Town Justice Emerson Mead, Town Supervisor Town of Conesville Greenville, tiew York 12083 R.D. =l Gilboa, tiew York