ML19276F564
| ML19276F564 | |
| Person / Time | |
|---|---|
| Site: | Green County  |
| Issue date: | 03/13/1979 |
| From: | Beverly Smith NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19276F559 | List: |
| References | |
| NUDOCS 7904060107 | |
| Download: ML19276F564 (13) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
< h BEFORE THE ATCMIC SAFETY AND LICENSING BOARD In the ttatter of
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Occket No. 50-549 POWER AUTHORITY OF THE STATE OF
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(Greene County Nuclear Power Plant)
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STATE OF NEW YORK DEPARTMENT OF PUBLIC SERVICE 80ARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT In the Matter of the Application
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of the
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POWER AUTHORITY OF THE STATE OF
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Case 80006 NEW YORK
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(Greene County Nuclear Generating
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NRC STAFF'S OBJECTIONS TO INTERROGATORIES PROP 0UNDED IN SETS 5, 6, AND 7 BY THE POWER AUTHORITY OF THE STATE OF NEW YORK Pursuant to 10 CFR $52.740(b) and 2.720(h)(2)(ii) of the regulations of the Nuclear Regulatory Commission, the NRC Staff objects to interroga-tories propounded by the Power Authority of the State of New York (PASNY) in interrogatory sets 5, 6, and 7 for the reasons set forth below. The objections go the following interrogatories: Set No. 5:
284, 293, 303, Set No. 6: 330, 331, 332, 335, 342, 343, 34411, iii,iv,(b)11,iii,iv, (c) ii, iii, iv, 345 11, iii, iv, 346 (b), (c), (d), 347, (b), (c), (d),
348 (b) (c), (d), 349 (b), (c), (d), 350 (b), (c), (d), 351 (b), (c), (d),
h904060101
. 352 (b), (c), (d), 353 (b), (c), (d), 354, 355, 356, 357, 358, 359, 360, 361, 369, 376 (b), (d), (e), 378 (b), (c), 384 (b), (d), (e), 394, 396 (a), (b), (c), 397 (b), (d), 398 (g), 399 (c), 404, 405 (b), (d) 407 (e),
414 (b), (d), 446 (a), 448 (b), 450, 456, 460 (in part), 461, 462, 464 (b), (c), (d), (e), 470 (b), (d), 475, 477(a), 478, 479, 481, Set 7:
496, 497, 498 (c), 502, 510 (b), 511 (b), 513, 515, 519 (a), 520, 521 (in part), 525, 526, 530' (b), 537, 547, 548, 553, 556 (in part), 560.
DISCUSSION I.
Interrocatories Which Are Objectionable Because they Seek Privileced Infomation.
In general, a party may obtain discovery regarding any matter, not privi-leged - which is relevant to the issues in controversy in the proceeding.
10 CFR $2.740(b).
The legal authorities and Federal court decisions involving discovery "... provide appropriate guidelines for interpreting the discovery standards set forth in the Ccemission's rules." Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station, C8P-77-13, 5 NRC 489, 492 (1977) and cases cited therein. The Courts have traditionally recognized the government's privilege to protect the decisionmaking processes of government agencies and the attorney-client and attorney work product privileges. See: NLRB v. Sears, Roebuck & Co.,
421 U.S.132,150,154 (1975).
. In order to establish which inter-agency documents must be protected from disclosure, the courts have drawn a distinction between pre-decisional communications, which are privileged and communications made after the decision and designed to explain it, which are not privileged.
See: NLRB v. Sears, suora at 151, 152.
The Staff objects to those interrogatories which call for disclosure of documents or opinions con-taining predecisional communications, either written or oral.
The attorney's work product rule of Hickman v. Taylor, 329 U.S. 495 (1945) is clearly applicable to Government attorney in litigation.
See NLRB v. Sears suora, at 154 In particular, the work product rule
" clearly applies to memoranda prepared by an attorney which set forth the attorney's theory of the case and his litigation strategy."
Id. at 154 The NRC Regulatory Staff therefore objects to those interrogatories which require disclosure of privileged communications between it and its attorneys and any attorney work product of its attorneys.
For these pur-poses Staff Counsel's " client" includes the NRC Regulatory Staff and its consultants.
Set 6 Nos. 330, 335. These interrogatories request information concerning management guidance to NRC Staff relating to the conduct of the alterna-tive site review. To the extent that this requests any type of pre-
-4 decisional guidance as to how the review should be conducted, the Staff objects.
These interrogatories also request infomation conveyed to the Staff by the attorney representing the Staff regarding the conduct of the alterna-tive site review. This response would require disclosure of communications between the attorney 'and his client and/or an attorney's work product.
It is therefore privileged and not subject to discovery.
If there were any communications of this nature, the theory of the case and any legal position on this subject will be ventilated in the hearing process.
Therefore, the Applicant will be infomed of the Staff's legal position.
NLRB v. Sears, supra, at 160.
II.
Interrogatories '4hice Are Objectionable Since They Are Not Relevant to Matters in Controversy in this Proceeding.
In general, discovery is obtainable regarding any matter which is rele-vant to the issues in controversy in a proceeding or is reasonably cal-culated to lead to the discovery of admissible evidence.
10CFR!2.740(b).
Relevancy in Comission proceedings is detemined on the basis of the controverted subject matter as identified in the Prehearing Order.
Barn-well, supra.
The Staff objects to the following interrogatories on the ground that they are not relevant to any matter in controversy in this proceeding and will not lend to the discovery of relevant evidence.
Set 5 No. 478, 479 and all interrogatories requesting cost infomation on pro-posed transmission lines at alternative sites.
TheFESl9.2setsforth the Staff methodology for conducting its alternative site review.
As evidenced by the text, monetary cost at the candidate sites were not evaluated in any detail.
The Staff conducted its review to compare the environmentai attributes of the various alternative sites.
It did not look at monetary cost until a site was detemined to be environmentally "obviously superior". See: Rochester Gas and Electric Comoany et al.
(Sterling Power Project Nuclear Unit No.1), ALAB-502, 8 NRC 383, 395 (October,1978). The Staff did find several sites environmentally "obviously superior" to Cementon and took into account various econcmic factors of at least one site - Athens - to detemine if it remained obviously superior.
SeeFES110.4.3, Table 10.9.
The various costs at the other sites which are environmentally obviously superior were not considered and need not be for the purpose of an alternative site review.
Sterlina, suora at 39. Since the economic aspect of the alternative site analysis was confined to Athens, the discovery inquiry should be so confined.
Set 7 Nos. 525, 537. These interrogatories request responses based on hypo-thetical situations, design and planning concerns which are not rele-vant to the questions in this proceeding.
. III. Interrogatories Which Are Objectionable Since They Require the Staff to Comoile Data, Do Additional Research, Of 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 coepile data not reddily known by it, especially if the data is equally available to the party propounding the interrogatories.
In the Matter of Boston Edison Company (Pilorim Nuclear Generating Station, Unit 2),
LBP-75-30,1 NRC 579, (1975); 4A Morre, Federal Practice, paragraph 33.20, pp.33-103; In the Matter of Project Management Coro., Tennessee Valley Autho ri t) (Clinch River Breeder Reactor Plant), Order Concernino Staff Objections to NRDC Tenth Set of Interrocatories, Docket No. 50-537)
(June 8, 1976).
The Staff is also not required to perfom calcualtions which it did not perfom in its original analysis.
See, Pilcrim 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 indica-tion 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 5 No. 284 The Staff is asked to list, in order of suitability for the siting of a nuclear power plant various, " land use categories." The Staff has not perfomed such a ranking.
No. 293. The Staff is asked to p ovide an order of preference for alter-native cooling systems and a cost benefit analysis ranking the alterna-tives. The Staff has not performed such a ranking.
No. 303. This interrogatory requests infomation on steam electric plants using chlorine in closed cycle cooling system. This would require searching EPA files in order to answer the question. This can be done by the Applicant.
No. 309(b)(c). These interrogatories would require additional research to determine the amount of toxicological research that has been conducted with respect to ozonation relative to chiarination. The Applicant can perform this task.
Set 6 Nos. 344(a) 11, iii, iv, (b) 11, iii, iv, (c) 11, iii, iv 345 ii, iii, iv,346(b),(c),(d),347(b),(c),(d),348(b),(c),(d),349(b),(c),
(d), 350(b), (c), (d), 351(b), (c), (d), 352(G, (c), (d), 353(b), (c),
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m 8-(d), 354, 356, 358, 359, 361, 406(d), 407(c) and 439.
All of these interrogatories require ranking and/or weighting which the Staff has not pe rfo rmed.
No. 360.
This interrogatory would require additional analysis and calcu-lation. The Staff does not have the information to perform this task.
No. 369. Both of the tasks required by this interrogatory require addi-tional analysis and calculation.
In addition, it can be performed by the Applicant.
Nos. 376(b), (d), (e), 384(b), (d), (e), 397(b), (d), 405(b), (d),
414(b),(d),448(b),464(b),(c),(e),(f),470(b),(d),489(b),(d).
These interrogatories require analysis of cost of transmission lines which the Staff has not performed and which could be determined by the Applicant.
In addition the interrogatories ask the Staff to perform a cost and environmental analysis of transmission lines which have not been proposed. See also the discussion of relevancy in section II, suora.
Nos. 378(a), (b), 391, 392, 406(c), 407(a), (e) (1st sentence) 408(a),
415(b). These all require information relating to either population, visitor counts, or distances which require the Staff to compile data or make calculations it has not previously done. This information is as readily available to the Applicant as to the Staff.
.g.
No. 394, 471(a), 481.
This would entail collection and analysis of infor-mation relating to historical cultural, scenic or visually-sensitive areas, which can be perfomed by the Applicant.
Nos. 396(a) (b). Once the sites are identified in response to interroga-tory 395, the Applicant can detemine the infomation on distance and visitors requested in the Interrogatory.
No. 399(c), 446(a). The Staff will provide the appropriate descriptions.
The requested drawing of a route on a USGS may can be perfomed equally well by the Applicant.
No. 404 This cannot be done without infomation relating to the plant design for this site. This is infomation not available to the Staff.
Even if the infomation was available, an answer to the interrogatory would require additional analysis and calculations.
No. 450.
No such analysis exists and this interrogatory, therefore, requires the Staff to perfom an analysis based on hypotheticals.
No. 456.
The Staff has not performed the task required by this interroga-tory. The Applicant can identify the areas he requests infomation about, locate areas on maps and detemine the number of visitors at the various locations referred to in the interrogatory.
f Nos. 460 (first sentence), 461, 462. The Staff has not perfomed the task required by these interrogatories. The information requested is as readily available to the Applicant as to the Staff.
Set 7 Nos. 496, 497, 498(c), 502, 511(b), 513, 553, 556 (last sentence), 560.
These interrogatories require calculations which the Staff has not perfo med.
No. 510(b).
This interrogatory requires a ranking which the Staff has not performed.
No. 515.
The Staff has not perfomed the evaluation required by this interrogatory.
No. 519(a). The Staff has not perfomed the analysis required by this section.
No. 520, 526, 547, 548.
These interrogatories require the Staff to take photographs and provide a viewshed analysis which the Staff have not taken or perfomed.
No. 521.
Second sentence.
This requires an analysis not perfomed by the Staff and it could be done equally well by the Applicant.
f No. 530(b).
This interrogatory requires research of various NRC dockets which has not been performed by the Staff and could be performed by the Applicant.
IV.
Interrogatories Which are Objectionable Because the Infomation is Reasonably Obtainable from Another Source Section 2.720(h) (2) (ii) does not require the Staff to provide infoma-tion which is reasonably obtainable from another source. On this ground the Staff objects to the following interrogatories.
Set 6 Reference 152. This document was prepared on behalf of PASNY (and three other utilities) in the EPA Hudson River Power Case. We fail to under-stand what conceivable purpose PASNY could have in requesting Staff to produce a document prepared for them.
Reference 153. This document was prepared for Consolidated Edison Co.
In a proceeding before the Federal Energy Regulatory Commission which is very closely related to the EPA proceeding noted above.
If PASNY does not have a copy, we suggest it get one from Con Edison.
f v.
Interrccatories Which Are Obfectionable 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:
No. 3 31.
This interrogatory refers to three Parts of the NRC regulations each of which embodies many " criteria." Without specification of which criteria the Applicant is referring to, these interrogatories cannot be answered.
No. 398(g), 475.
These interrogatories refer to "other impacts...which were not based upon ccmplete information...." The Staff is unaware of any evaluation based on incomplete infomation until the Applicant speci-fies what evaluations it belisves were based on incomplete information and defines what is meant by " incomplete infomation" the Staff cannot respond.
No. 480. The Staff needs a definition of "significant" before it can understand the scope of this interrogatory.
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. CONCLUSION For the foregoing reasons, the Staff objects to interrogatories identi-fied above.
Respectfully submitted,,
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,r Barry H. Smith Counsel for NRC Staff Dated at Bethesda, Maryland this 13th day of March,1979.