ML19309C426
| ML19309C426 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 04/01/1980 |
| From: | Smith I Atomic Safety and Licensing Board Panel |
| To: | METROPOLITAN EDISON CO., UNION OF CONCERNED SCIENTISTS |
| References | |
| NUDOCS 8004080586 | |
| Download: ML19309C426 (7) | |
Text
Bd 4/1/80 UNITED STATES OF AMERICA 9
NUCLEAR REGULA'IORY COMMISSION o,
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ATOMIC SAFETY AND LICENSING DOARD 2
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T-Ivan W. Smith, Chairman 6-gg
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Dr. Walter H. Jordan Dr. Linda W.
Lit tle g
3 In the Matter of
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Docket No. 50-289 METROPOLITAN EDISON COMPANY
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(Restart)
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(Three Mile Island Nuclear
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Station, Unit No. 1)
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MEMORANDUM AND ORDER COMPELLING UCS
'IV ANSWER LICENSEE'S INTERROGA'IORY NO. 8-1 (April 1, 1980)
Licensee's interrogatory 8-1 to Union of Concerned Scientists (UCS), January 18, 1980, is directed to UCS's contention 8.
This contention challenges the analysis required under 10 CFR 50.46 for ECCS performance.
After discussing examples where specific parameters were said to be exceeded for the spectrum of LOCA's in the TMI-2 accident, the contention asserts:
The measures proposed by the staff address primarily the very specific case of a stuck-open power operated relief valve.
- However, any other small DDCA could lead to the same consequences.
Additional analyses to show that there is adequate protection for the entire spectrum of small break locations have not been performed.
Therefore, there is no basis for finding compliance with 10 CFR 50.46 and GDC 35.
None of the cor-rective actions to date have fully addressed the demonstrated inadequacy of protection against small 03CA's.
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O 2-The licensee provided UCS with, according to UCS, "approximately 6 inches of technical documents" describing small break analyses applicable to TMI-1 prepared by Babcock & Wilcox (B&W).
In its interrogatory 8-1 to UCS licensee inquires:
Does UCS contend in the light of the information contained in such documents that sufficient analyses have not now been done to show that there is adequate protection for the entire spectrum of small break locations?
If so, explain the inadequacies which UCS contends exist in the analyses performed to date and describe in detail the further analyses which UCS contends should be performed.
On February 25 UCS objected on the ground that the interrogatory is unduly burdensome and overbroad.
Licensee filed its motion on March 11 to compel UCS to answer but UCS, in its March 24 response to the motion, continues to resist the interrogatory on the same ground.
The board has not examined the B&W materials submitted to UCS by licensee nor do we see any need to.
UCS does not claim that the small break analyses contain more information than is necessary for their intended purposes.
It states only that the request is overbroad and too burdensome to require UCS to review the material.
We agree with the licensee.
UCS must ultimately familiarize itself with these materials if it intends to l
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, litigate the matter effectively.
Licensee is entitled to UCS's specification as to why, if such remains the case, it believes that the small breaks analyses are inadequate.
It is a fundamental issue of due process.
Licensee cannot prepare to meet the thrust of UCS's contention if UCS does not explain what, if anything, is wrong wit h the LOCA analyaes.
l The interrogatory is exactly as broad as the contention.
If the interrogatory is too broad for discovery, UCS's contention is too broad for litigation.
We warned the parties about the broad, example-type contentions in our First Special
'prehearing Conference Order where (at pp. 9-10) we stated:
On one hand we do not expect intervenors now to be able to specify each circumstance related to the TMI-2 accident which should be considered, nor do we believe that only these system components alleged to have contributed directly to the accident may now be considered.
On the other hand practical evidentiary considerations and due process require that there be some reasonable bounding of the example-type contentions.
Frequently we have permitted a broadening of the contention to include the class of system components in the major safety system involved, most often the core cooling system and the containment isolation system.
However, intervenors must be aware that this broadening may not produce the showing sought by the contention.
The specificity of the contention will necessarily shape the specificity of the evidence produced in response.
The discovery process should be used to refine these contentions so that only those circumstances reasonably related to the accident are identified for hearing, i
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. In a parallel ruling accepting UCS's contention 13 we cautioned UCS that "the sooner UCS specifies the area of sequences that must be addressed by the licensee and staff, the greater will be the showing required in response to that inquiry."
- d. pp. 22-23.
By its interrogatory 8-1, licensee is seeking UCS's position on its contention 8 Under even broader circumstances, where UCS seeks licensee's general position on each of _UCS's contentions, counsel for licensee, with characteristic direct-1/
ness, argues:
UCS posed this question in an attempt to obtain what is surely the most basic in-formation to which it is entitled in discovery:
the positions of an opposing party on the issues involved in the litigation.
Nothing could be more
" relevant to the subject matter involved in the proceeding," 10 CFR 52.740 (b) (1),
or more fundamental to obtaining "the fullest possible knowledge of the issues and facts before trial."
Boston Edison Co.,
et al. (Pilgrim Nuclear Generating Station, Unit 2) LDP-7 5-30, 1 NRC 579 (1975).
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UCS Motion to Compel Licensee to Answer UCS Interrogatory 179, March 24, 1980, p. 1.
Our reference to UCS's motion should not be taken as approval.
We haven't studied the motion, nor have we considered licensee's position yet.
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, Licensee's interrogatory may be burdensome as UCS states.
IIere, again, we are aided by counsel for UCS in its response to licensee's motion to compel where, we are informed that:
the question was not the number of questions posed in a set of interrogatories, or the successive use of discovery methods, but whether or not the demands are unduly burdensome or oppressive when viewed with relation to the case itself:
are the interrogatories unreasonable under the facts and cir-cumstances of the particular case?
Citing Krantz v. U.S. 56 F.R.D. 555 (W.D. Va. 1972).
If UCS finds the burden of responding to the in-terrogatory to be intolerable, its remedy is simple; it may narrow its contention 8 to stato specifically in what respect the small break analyses remain inadequate insofar ns UCS wishes to litigate the issue.
That is, UCS need not respond to the entire interrogatory.
It may with specificity and bases pick and choose the " inadequacies" which it wishes to 2/
litigate.
We therefore direct UCS to answer licensee's interrogatory or, alternatively, to modify its contention in accordance with this ruling.
If, in fact, UCS cannot yet take a position on each of the B&W LOCA analyses, and 2/
In a future order at the close of discovery the board will require each party to reexamine its contentions
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and to modify them, if necessary, to reflect new information and the products of discovery.
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. requires more time to consider its litigative position, the board will consider an appropriate motion.
In this ruling we have regarded UCS and licensee as adversaries in litigation.
Our rulings have been necessary as a matter of due process, They are also needed to preserve order in the hearing.
Now, however, we wish to approach.the matter from.another perspective.
UCS, with its counsel and technical expertise, has the skills and resources to assure a thorough record on the issues raised by its contention 8.
By receiving the B&W small breaks analyses well in advance of the hearing UCS has been afforded an opportunity to make a substantial contribution.
It may be expedient for UCS to narrow its contention rather than study the entire B&W report.
However, we hope that UCS will not easily retreat.
We would prefer UCS to examine carefully the B&W analysss; to enlarge upon and specify its contention if its study of the B&W analyses so justifies ; and to litigate actively a well considered and well based contention 8 if UCS believes that important questions remain.
In short, on one hand, we require UCS, as a litigating party, to answer the interrogatory or to narrow its con-tention.
On the other hand, we are requesting UCS, as an t
organization of concerned scientists, voluntarily to take an important part in developing a reliable evidentiary record J
on the issue, i
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. In view of the apparent burden placed upon UCS by this order the board extends the time for responding completely to licensee's interrogatory 8-1 to twenty days after the service of this order.
In view of the unusual request to UCS by the board, we invite UCS to seek other appropriate relief within the power of the board to grant.
Any such request or other action as a result of this order is due within ten days after service of the order.
THE A%MIC SAFETY AND LICENSING BOARD 4/
Ivan W. Smith, Chairman Bethesda, Maryland April 1, 1980 l
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