ML19305C489
| ML19305C489 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 03/07/1980 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | CITIZENS FOR EQUITABLE UTILITIES |
| References | |
| LBP-80-11, NUDOCS 8003280655 | |
| Download: ML19305C489 (13) | |
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LBP-80-ll UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 5
a ATOMIC SAFETY AND LICENSING BOARD p
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20 MAR 01980, C' Charles Bechhoefer, Chairman Dr. James C. Lamb g
ir Dr. Emmeth A. Luebke iSg;tgjggg 3
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j In the Matter of
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HOUSTON LIGHTING AND Docket Nos. STN 50-498 OL POWER COMPANY, ET AL.
STN 50-499 OL (South Texas Project, Units 1 and 2)
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MEMORANDUM AND ORDER RULING UPON MOTIONS TO COMPEL CEU TO RESPOND TO INTERROGATORIES (March 7, 1980)
On January 14, 1980, Citizens for Equitable Utilities, Inc.
(CEU),an intervenor in this operating license proceeding, filed a common set of answers to interrogatories previously submitted by the Applicants and NRC Staff, respectively.1!
1/
Consistent with the schedule in our Memorandum and Order of August 3, 1979, the Applicants and Staff each submitted dis-covery requests to CEU on November 5, 1979.
Responses were to have been filed by December 21, 1979.
CEU's January 14, 1980 answers were thus somewhat tardy (caused, according to CEU, by " circumstances entirely beyond its control").
Although we will accept that representation, we wish to point out that, if CEU found itself unable to respond in the time period spec-ified, it should have sought an extension of time to do so prior to the expiration of the specified period.
As a result of CEU's failure to follow that course, the Applicants (on December 31, 1979) and the Staff (on January 3, 1980) filed motions to compel CEU to respond to their discovery requests.
Because CEU's answers (together with the instant motions) appear to render moot or supersede the earlier motions, those earlier motions are dismissed.
L 8 0 03 28 0loEE
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e l On January 29, 1980,2/ both the Applicants and Staff filed mo-tions to campel CEU to respond further to their interrogatories.
CEU has not responded to either of these motions.SI We will treat them below.
Because CEU's answers to interrogatories were furnished on a contention basis and were intended to respond to both the Applicants' and Staff's inquiries on a given contention, we will discuss the Applicants' and Staff's motions together, in terms of the contentions to which they relate.
Contentions 1 and 2 These contentions, which involve alleged construction and QA/QC deficiencies and falsification of certain construction re-l cords, are jointly sponsored by both CEU and Citizens Concerned I
l About Nuclear Power, Inc. (CCANP).
In responding to interrogatories on these contentions, CEU recognized the extensive responses of l
CCANP to the interrogatories on this subject but declined to provide any substantive answers of its own.
It added, however, that it reserved the right "to file a supplement to and/or clarification of" CCANP's answers and that it would "not be limited nor bound" by CCANP's answers.
l 2/. Our Orders of January 24 and 25, 1980, granted the Staff and Applicants, respectively, an extension of time to January 29, 1980 to file such motions.
3/
Because of CEU's failure to respond to the Applicants' and
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Staff's motions, we could have afforded the Applicants and Staff all the relief they requested on that basis'.
10 CFR
_$2.707(a).
Inasmuch as CEU is a pro se intervenor, we have l
examined the substance of the various Interrogatories and answers to determine the relief which is warranted.
e 0 As the Applicants and Staff each point out, this response is unsatisfactory.
"[T]he purpose of discovery is to enable each party prior to hearing to become aware of the positicns of each adversary party on the various issues in controversy, and the information available to adversary parties to support those positions."
Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-31, 10 NRC (October 30,1979) (slip op., p. 5) (quoting from unpublished Memo-randum and Order in that proceeding, dated August 24, 1979).
To fulfill this purpose, it is not necessary for a party such as CEU to perform extended research or data gathering in order to respond.
Where, as here, interrogatories are merely seeking to uncover the basis for and rationale of a contention, a party must delineate the information, if any, currently in its possession (and the source of that information where applicable) on the particular subj ect.
Presumably, it must have relied on information of some sort to formulate a contention; such information must be revealed.
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A party may, of course, indicate areas of its case which are still under development and where incomplete substantive answers are all that can be furnished.
The identity of prospective witnesses may be such an area.
(Responses such as this must be supplemented, l
as provided by 10 CFR $2.740(e).)
But, we stress again that a party must, in response.to discovery requests, identify the infor-mation, if any, which it possesses and on which it is basing its contentions.
i k
~4-With~ respect to Contentions 1 and 2, CEU is free, if it wishes, to rely on information provided by CCANP.
Or it may wish to rely, in whole or in part, on different information.
It need not make a final determination on such matters at this stage, but it nevertheless must identify the information, if any, on which it currently is relying.
With these guidelines in mind, CEU is directed to provide answers to the Applicants' interrog-atories A.1-38 and B.1-4, and the Staff's interrogatories 1-1 through 1-16 and 2-1 through 2-5.
(Where the Applicants' and y
Staff's interrogatories may call for the same answers, CEU may, of course, furnish a common answer to both parties, as it has done with its earlier answers.)
One further point warrants some comment with regard to answers to the foregoing interrogatories (as well as other discovery re-quests).
CEU states that For reasons unknown, we are encountering an extremely emotional, almost irrational, fear.
This is being expressed not only by workers now at the South Texas Nuclear Power Plant site but also by those who have gone on to other jobs.
There is a fear of harassment wherever they might be or whatever work they might be engaged in.
They have insisted that their names not be divulged until they could be notified of the date set for a hearing and their names be intermingled with a number of others to be called as witnesses.
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This statement is not explicitly tied or limited to any specific contention, although it would appear to have particular applica-bility to Contentions 1 and 2.
In any event, the Applicants
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. would have us instruct CEU that it cannot refuse to answer inter-rogatories nor refuse to provide information in its possession because of its " fear of harassment" for unidentified present and former employees at the South Texas Project.
Such an instruction would appear to be incomplete.
The proper procedure for an analogous situation was recently outlined by the Appeal Board in Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979).
There, the question was whether an organization must reveal the name of at least one member in order to establish its standing to intervene.
The organization claimed that revealing the names of members would threaten the rights of association of those members.
To reconcile that claim with the necessity for knowing the name of at least one member to determine whether the organization had standing, the Appeal Board established the following procedure:
Upon a determination that an adequate showing has been made that public revelation of the identity of a member of the pe ttioner organization might e
threaten rights of association, the licensing board should place a protective order upon that informatior..
The order should provide that the information need be supplied only to the members of the Board and one or more designated representatives of the other parties to the proceeding.
Additionally, it should prohibit further dissemination of the information to anyone (other than a member of a reviewing tribunal).
Id. at 400.
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. Although there are some differences between the factual situ-ations in Allens Creek and in this pro'ceeding, the principle estab-lished by the Appeal Foard there seems equally applicable here:
where revealing the name of an informant or proposed witness or member, in response to discovery or other NRC requirements, would occasion harm to or reprisal against such person, a licensing board can and should take steps to protect that person, consistent with achieving'to the extent possible the purposes of NRC's discovery rules or other requirements.
For that reason, even though some revelation of names may be required, the Board may well limit dis-closure to an extent necessary to avoid the anticipated harm or reprisal.
Therefore, if CEU believes that, in answering interrog-atories on Contentions 1 and 2 (as we have directed) or any other contentions, it will subject its informants or witnesses to harass-ment, it should request a protective order.b/
In doing so, it should outline the factual basis for its view that a protective order is warranted.
Any request for a protective order should l
deal with each interrogatory or related group of interrogatories separately, setting forth relevant facts applicable to each.
Such a request might also delineate the degree of protection deemed to be needed to avoid the feared harassment --- e.g., the particular individuals to whom disclosure is sought to be restricted.
4/
The Appeal Board in Alle L Creek stressed that "this Commission and its adjudicatory boards have always proceeded on the assump-tion that the terms of all protective orders will be scrupulously observed by everyone who acquires confidential information under such an order."
9 NRC at 400.
U '
6
. Contention 4 This contention relates to the adequacy of the protection of the facility against hurricanes.
Both the Applicants and Staff sought specific information concerning this contention.
In response, CEU provided copies of, or references to, certain documents but stated that it has not yet selected its expert witnesses.
It also referred to potential retaliation against its informants or witnesses.
Although CEU's answers to certain of these interrogatories are adequate (subject to supplementation), it should provide fur-ther details (if it can) with respect to Applicants' interrogatories C.2, C.4-9, and Staff's interrogatories 4-la and b, 4-2, 4-3, 4-5 and 4-6.
(We read CFU's response as stating that it has not yet made the determinations required to respond to Applicants' inter-rogatory C.3; if that is not the case, then CEU should also answer that interrogatory.)
To the extent that the documents listed by CEU are responsive to the Applicants' interrogatories requesting the identification of documents, CEU should indicate which of the documents listed are responsive to each of the various questions on documents (and, to the extent appropriate, the portions of the listed documents which are being relied on).
l We note that certain of the interrogatories seek identification of persons upon whom CEU relies or has relied (as distinguished from those whom CEU intends to call as witnessas).
This is a proper subject of inquiry.
But, to the extent that CEU feels that respond-ing to the interrogatories would reveal the names of certain persons whose identities should not be revealed at this time, it should
i request a protective order along the lines previously indicated, setting forth facts by which we can judge whether an order would be warranted and the conditions which should govern such an order.
Contention 5 This contention relates to the radionuclide bioaccumulation
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in aquatic organisms.
In responding to interrogatories on this contention, CEU indicated where certain source material referred to in the contention can be found, and it named one person upon whom it intends to rcly.
But it failed to provide any substantive explanation for the claims it is making, stating only that the named person was preparing certain material, which would be made available as soon as it is received by CEU.
CEU should at least provide a brief explanation of the reasons it believes its contention has merit -- e.g., why it believes the citgd material indicates that the Staff's FES is in error.
It is free, of course, to undertake further development of its conten-tion; "every detail" may not yet be developed, and CEU need not hasten this development in order to answer interrogatories (although, as it recognizes, it may be required to supplement any incomplete answers it provides).
But at least a preliminary explanation should be furnished.
CEU is therefore directed to provide further answers, to the extent it can presently do so, to Applicants' interrogatories D.2-7 and Staff's interrogatories 5-la and b, and 5-2 through 5-5.
I
. Contention 6.
This contention concerns the accuracy of calculations of radionuclides deposition due to the relatively high and continual i
humidity which is said to exist in the area.
CEU provided no sub-stantive response at all to interrogatories on th'.; contention, stating only that its research and study has begun and that wit-nesses have not yet been selected.
(That an.'er is an adequate response to Applicants' interrogatory E.9 and Staff's interrog-atory 6.lc, subject to supplementation as required.)
Recognizing that its position on this contention may not yet be completely developed, CEU nevertheless should have outlined the information which led it to submit a contention on this subject and the sources of that information.
Accordingly, CEU is directed to provide fur-ther responses to Applicants' interrogatories E.1-8 and Staff's interrogatories 6-la and b, and 6-2 through 6-5.
Contention 7 This contention raises questions concerning the effect on che facility's cooling pond of soil conditions, water flow in the Colorado River, and groundwater supply.
In responding to interrogatories seeking the factual basis, and sources of infor-mation, underlying this contention, CEU has supplied a list of certain documents but has not elaborated on how these documents relate to its claim or identified any persons upon whom it has relied or is relying.
The Applicants' and Staff's interrogatories
seek this sort-of information.
Under the NRC discovery rules, they are entitled to inquire comprehensively, prior to hearing, concerning the bases for a party's claim and the sources of information upon which it is relying.
Pennsylvania Power & Light fh. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-31, supra, 10 NRC at (slip op., pp. 5-5a).
Therefore, CEU is directed to answer Applicants' interrogatories F.1-9 and Staff's interrogatories 7-1 through 7-7.
(IECEU has not yet chosen its witnesses on this contention, or completed the development of its position, it can so state, as it has with other contentions.
It need set forth only such information as it presently possesses, including the information on which it based its contention.)
Contention 8 This contention questions the adequacy of the emergency plan for the facility.
It was premised upon the provisions of proposed amendments to 10 CFR Part 50, Appendix E (43 Fed. Reg. 37473, August 23, 1978) which were authorized to be used as " interim guid-ance."
That proposal permitted consideration of whether there were special circumstances which would dictate that an emergency plan extend to areas beyond the low population zone (LPZ).
Interrogatories propounded by the Applicants and Staff sought, inter alia, to inquire whether CEU has information establishing conditions which would warrant extension of the emergency plan to areas beyond the LPZ (and particularly the specific areas mentioned by CEU).
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. The Commission currently has under way a rulemaking pro-ceeding with respect to emergency planning.5/
That rulemaking should be complete long before the time when we are ready to hear the emergency planning issues in this case.
At the present time, however, it appears virtually certain that the final rule will require emergency planning for areas beyond the LPZ without regard to any showing of special circumstances.
In that connection, the August, 1978 proposed amendments have been superseded by interim guidelines which require, inter alia, that emergency plans take into account emergency planning zones for airborne exposures of about 10 miles and for ingestion pathways of about 50 miles.
It appears that, although smaller zones might be acceptable, an aroli-cant would have to prove their acceptability.
And greater distances could be shown to be warranted under certain circumstances.
See
" Draft Emergency Action Level Guidelines for Nuclear Power Plants" (NUREG-0610, September, 1979), sanctioned for interim use at 44 Fed. Reg. 75167, 75168 n. 1 (December 19, 1979); " Planning Basis for Emergency Responses to Nuclear Power Reactor Accidents,"
44 Fed. Reg. 61123 (October 23, 1979).
The Commission's current interim guidance also suggests a greater role for State and local emergency plans than was heretofore the case.
In these circumstances, i
l 5/
The Applicants originally wanted us to condition acceptance of CEU's emergency planning contention on the outcome of the rule-making on emergency planning.
In our Order of August 3, 1979, we declined to follow this course since, unlike the Applicants, L
we viewed the contention as raising legitimate issues under the then-current emergency planning guidelines.
. it seems inappropriate to ask CEU at this time to answer questions designed to achieve information which was relevara to emergency planning under former guidelines but appears to be of little rele-vance under current standards.
Insofar as they relate to Conten-tion 8, therefore, the Applicants' and Staff's motions are denied.
It is our understanding that the Applicants will amend their FSAR to include an emergency plan intended to conform to new Commis-sion guidelines.
When they do so, they should send a copy to CEU.
Within 30 days after service of that document, CEU may wish to amend its contention to indicate why it then believes the revised emergency plan to be deficient.
If CEU files an amended contention, the Applicants and Staff may file discovery requests within 15 days of the service of such a contention; if an amended contention is not filed, the Applicants and Staff may file new discovery requests based on the existing contention within 15 days of the last date on which an amended contention could have been filed.
Responses to the new discovery requests must be filed within 30 days after service of the request.
CEU is directed to answer various interrogatories, to the extent indicated above, within 30 days of the service of this Order.
If it is unable to do so, it should attempt to work out an extension of time with the Applicants or Staff, as applicable; i
i e
+ if it cannot work out an acceptable schedule, it may request an extension from us, prior to the time that the period for filing responses has expired.
FOR THE ATOMIC SAFETY AND LICENSING BOARD i
(,tf,
- i l.
Charles Bechhoefer, Chairman Dated at Bethesda, Maryland, this 7th day of March, 1980.
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