ML19331B201
| ML19331B201 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/14/1977 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-CP, NUDOCS 8007280791 | |
| Download: ML19331B201 (12) | |
Text
.
,4 1/14/77 O
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICEf! SING BOARD In the Matter of
)
CONSUMERS PCWER COMPANY Docket Nos. 50-329
)
50-330 (Midland Plant, Units 1 and 2)
)
NRC STAFF'S REQUEST FOR FINDING PURSUANT TO 10 CFR E2.720(h)(2)(ii) AND NRC'S OBJECTIONS TO INTERVEN0R'S INTERROGATORIES TO NUCLEAR REGULATORY COMMISSION STAFF AND REQUEST FOR PROTECTIVE ORDER pp-,f On January 3, 1976, Intervenors other than Dow Chemical Company (Intervenors) filed a Motion with this Board to require the NRC Staff (Staff) to answer Interrogatories accompanying the motion pursuant to 10 CFR 12.720(h)(2)(ii).
The Staff object's to certain interrogatories on a number of grounds as is set forth more fully below.
The Staff will respond to certain other
. interrogatories which are also identified below.
The Staff construes 10 CFR f2.720 as allowing the Staff 14 days to respond to interrogatories upon the determination by the Board that a Staff response is necessary.
Without awaiting a Board order, the Staff will respond to those interrogatories to which it does not object by January 27, 1977.
This time is required due to commitments on the part of both Staff Counsel ar.d Staff Experts to the evidentiary hearings which are scheduled to resume on January 18, 1977 in Chicago.
8007280,7kI
,a 49
1
, For purposes of the suspension hearing, discovery is controlled by the Memorandum and Order issued by the Board on October 21, 1976.
That Order opened discovery on the issue of energy conservation and the issue of Dow Chemical Company's current involvement with the Midland facility.
Discovery on the issue of clarification of the ACRS letter was deferred by the Board until the clarified letter had issued.
In the Staff's view, issuance of the clarified letter by the ACRS on November 18, 1976 opens discovery in this area.
These three issues than are the only legitimate subject matter for discovery.
General Rules of Discovery Applicable to All Parties in an NRC Proceeding The Rules of Discovery in NRC proceedings applicable to all parties are set forth in 10 CFR H2.740.
This section allows discovery regarding any matter not privileged, so long as it is relevant to the subject matter involved in the proceeding.
The rules have been fashioned after the Federal Rules of Civil Procedure relating to discovery.
See Northern States Power Company (Monticello Nuclear Generating Plant, Unit 1),
ALAB-10, 4 AEC 390, 392 (1970) and Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-196, 7 AEC 457, 460 (1974).
The Atomic Safety and Licensing Appeal Boards and the Atomic Safety and Licensing Boards have taken the position that guidance on the interpretation of the Commission's Rules of Discovery can be obtained from legal authorities and court decisions construing the Federal Rules on Discovery.
See Comonwealth Edison Comoany, supra, and Boston Edison Company, et al.
e c-9
. { Pilgrim Nuclear Generating Station, Unit 2), LBP-75-30,1 NRCI 579 (1975).
Therefore, the relevancy and the form of the interrogatory is to be judged in light of the NRC regulations and court cases construing the federal rules on discovery.
The Additional Requirements Regarding Discovery of Staff pursuant to 10 CFR Section 2.720(h)(2)(ii)
As outlined above, NRC procedural rules require that discovery be confined to matters which are relevant to the subject of the proceeding.
Additional factors govern interrogatories directed to the Staff.
Section 10 C.F.R.12.720(h)(2)(ii) requires a finding by the presiding officer s
that:
(1) answers to the interrogatories are necessary to a proper decision in the proceeding and (2) answers to interrogatories are not reasonably obtainable from any other source.
It is to these standards that Staff objections to interrogatories must be judged.
Objections to Interrogatorie's The Staff objects to the Completeness Requirement set forth on page 6
-of Intervenor's interrogatories as overly broad and oppressive.
Staff responses will be made by the individual with prime responsibility in
s '
e b
_4 the area of the interrogatory and the basis for that response will be given in reasonable detail.
Specific objections to interrogatories are now set forth seriatim.
1.
The Staff will respond to this Interrogatory.
2.
The Staff objects to Interrogatory 2.
The Staff objects to this interrogatory on the grounds of relevance.
The intentions of Consumers Power Company (Consumers) as to financing the i
continued construction of the Midland Nuclear Facility are not relevant to any of the three issues which are within the scope of this~ proceeding.
The scope of this proceeding is limited to a consideration of energy conservation, changed circumstances as related to the Dow commitment, and clarification of the ACRS letter.
Furthermore, even if such consideration were relevant, the information is reasonably obtainable from another source, namely the Licensee, Consumers Power Company.
Indeed this precise inter-ropatory was put to Consumers by Intervenors.1/
1/ ee " Interrogatories of All Intervenors Except Dow Chemical Company to S
Consumers Power Company," served December 27, 1976, page 8, Interrogatory No. 3.
O v.
e
.3
?
3.
The Staff objects to Interrogatory 3.
The Staff objects to this interrogatory as the information sought is reasonably available from another source.
See specifically " Testimony of Steven H. Howell" filed in this proceeding by Consumers which has attached as Exhibits 7(a) through 7(c) the contracts between Dow and Consumers which were executed in January, 1974 and which were in effect as of the date of the filing of that testimony.
4.
The Staff objects to Interrogatory 4.
This interrogatory seeks information regarding contengency plans upon the happening of certain events specified.
In the Staff's view, such contingency plans are irrelevant to the issues in this proceeding and are not necessary to a proper decision.
The Staff further objects to sub-section (d) as it is apparently addressed to the wrong party.
Intervenors apparently intend that this subsection be addressed to the Licensee, Consumers Power Company.
This precise interrogatory was put to Consumers by Intervenors.S/
5.
The Staff objects to Interrogatory 5.
The Staff objects to this interrogatory on the jeneral grounds of relevancy and on the ground that this information is not necessary to a proper decision in this proceeding. The issue of relevance in this proceeding S/ Ibid. page 9 Interrogatory No. 5.
P'
~%
). is Consumers' commitment to supply steam to Dow and Dow's commitment to take steam from Consumers.
The nature and circumstances surrounding a potential law suit upon determination by either Consumers or Dow to alter its commitment is not a relevant issue.
The Staff further objects as it appears that this interrogatory is addressed to the wrong pcrty.
This precise interrogatory was put to both Dow and Consumers by Intervenort.
6.
The Staff will respond to this Interrogatory.
7A. The Staff will respond to this Interrogatory.
- However, the Staff objects to the form and conclusionary nature of the.first two sentences of this interrogatory.
With regard to the remaining two sentences ofthisinterrogatory,theStaffwillrespond.1/
7B.
The Staff will respond to this Interrogatory.b/
8.
The Staff objects to Interrogatory 8.
The Staff objects to Interrogatory No. 8 as it is addressed to the wrong party. The information sought by this interrogatory is also reasonably available from anotner source, namely Consumers Power Company. The Staff will respond to this interrogatory by providing its definition of the term " energy conservation." With regard to subsections (a), (b), (c), and 1/ age 9 of " Interrogatories of All Intervenors Except Dow Chemical Company P
to NRC Staff Personnel" contained two interrogatories numbered 7.
The Staff has identified the first such interrogatory as 7A and the second such interrogatory as 7B.
O Ibid.
r
.~
. (d), the information apparently is requested from the Licensee, Consumers Power Company and is reasonably available from it.
This precise inter-rogatory was put to Consumers by Intervenors.E 9.
The Staff objects to Interrogatory No. 9.
The most recent communication of which Staff Counsel is aware in which the Advisory Committee on Reactor Safeguards identified generic items is a letter of April 16, 1976 addressed to Marcus A. Rowden, Acting Chairman, U.S. Nuclear Regulatory Commission, from Dade W. Moeller, Chairman of the Advisory Committee on Reactor. Safeguards entitled " Status of Generic Items Relating to Light Water Reactors:
Report No. 4."
In the Staff's view, the items which are within the scope of~ this proceeding have been properly identified in the letter of November 18, 1976 from Dade W. Moeller, to the Marcus A. Rowden, Chairman, clarifying the ACRS letter issued on the Midland Units 1 and 2 on June 18, 1970.
The generic items identified in Report No. 4 of the ACRS referenced above which are applicable to the Midland Facility, the manner and method of the resolution of each such item, the cost of resolution of each such item, and the completion date by which such item identified would be resolved are not proper issues in this proceeding. As such, the information sought by this interrogatory is not relevant to this proceeding and the answers are N " Interrogatories of All Intervenors Except Dow Chemical Company To Consumers Power Company," page 12, Interrogatory No.11.
,,-.4
'/~
'). not necessary to a proper decision.
The scope of this proceeding is limited to the adequacy of the clarified letter issued by the ACRS on November 18, 1976, and to those contentions concerning the clarified.
items which this Board admits as litigable contentions in this proceeding.
10.
The Staff objects to Interrogatory No. 10.
The Staff objects trs this interrogatory as it seeks information which is beyond the scope of this proceeding.
An analysis of costs and benefits would be required only, if upon a re-examination of those issues which are the subject of this proceeding, a determination were to be made that
^
the original costs or benefits associated with those issues had been improperly arrived at.
Until such time as such costs and benefits are shown to be defective, a cost-benefit analysis is not required..Thus the Staff objects to this interrogatory on the grounds that the information.
sought is not relevant nor necessary to a decision in this proceeding.
With regard to the last sentence of this interrogatory, wherein an inquiry is made into the " percentage of the design electrical rating of the Midland Nuclear Facility (e.g., 90% of megawatt electric rating)" which should be used in connection with a cost-benefit analysis, this inter-rogatory is construed by the Staff as seeking information relating to the capacity factors which were used in the analysis of the coal alternative and the Midland Nuclear Facility. The Staff will respond to this inter-rogatory so construed.
r
_g.
- 11. The Staff objects to Interrogatory No. 11.
The Staff objects to this interrogatory on the grounds that the information is reasonably available from another source.
This precise interrogatory was put to Dow and Consumers by Intervenors.N The interrogatory apparently probes the relationship between Dow and Consumers and the presence of any change in circumstances from those that existed in 1973.
Clearly, the appropriate parties to respond to such an interrogatory are Consumers and Dow.
- 12. The Staff objects to Interrogatory No. 12.
The Staff objects to this interrogatory as it presumes as the operative factor termination of the contract between Dow and Consumers for the supply of steam and electricity.
In the Staff's view, the material issue is Consumers' commitment to supply Dow with process steam and electricity and the commitment on the part of Dow to take the steam and electricity which Consumers has to offer. The question then is not whether the contract is terminated or at an end but whether Consumers or Dow's commitment is at an end The Staff construes this interrogatory as seeking the Staff's recommendations in the event that the Midland Nuclear Facility is no longer needed to supply steam.
As so construed, the Staff will respond to the interrogatory.
Ibid., page 14, Interrogatory No.14; and " Interrogatories of All Intervenors Except Dow Chemical Company to Dow Chemical Company, page 14,' Interrogatory No. 13.
r
. 13. The Staff will respond to this interrogatory.
14.
The Staff objects to Interrogatory No. 14.
The Staff objects to this interrogatory as it is not relevant to any of the issues in this proceeding. The interrogatory is additionally objectionalbe as it seeks information which is reasonably obtainable from another source, namely Dow Chemical Company.
This precise interrogatory was put to Dow by Intervenors. I Relief Soucht by Staff The Staff respectfully requests that the Board find under 10 CFR H2.720(h)
(2)(ii) that the interrogatories objected to by the Staff need not be answered.
For those matters not encompassed under H2.720(h)(2)(ii), the Staff requests that pursuant to 10 CFR 52.740(c) the Board grant a protective order that discovery not be had by Intervenors on the interrogatories objected to by the Staff.
Res e fully submitte ',
l
[Q7
l
-r chard K. Hoefling Counsel for NRC Staff Dated at Bethesda, Maryland this 14th day of January,1977.
7/ See Interrogatories of All Intervenors Except Dow Chemical Company to Dow Chemical Company, page 14, Interrogatory 14.
~
3 U!lITED STATES OF AMERICA flUCLEAR REGULATORY C01tilSSION BEFORE THE ATOMIC SAFETY AND LICEilSIflG BOARD In the !!atter of
)
)
CONSUMERS PO',lER C0 9AliY
)
Docket Nos.
50-329
)
50-330 (Midland Plant, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S REQUEST FOR FINDING PURSUANT TO 10 CFR 52.720(h)(2)(ii) AND NRC'S OBJECTIONS TO INTERVENOR'S INTERR0GA-TORIES TO NUCLEAR REGULATORY COMMISSION STAFF AND REQUEST FOR PROTECTIVE ORDER" dated January 14, 1977 in the above-captioned proceeding, have been served on the following by deposit in the United States mail, first class or air mail, this 14th day of January, 1977:
Honorable Curt T. Schneider Frederic J. Coufal, Esq., Chaiman Anorney General Atomic Safety and Licensino Board State of Kansas Statehouse U. S. lluclear Regulatory Comission Topeka, Kansas 66612 Hashington, D. C.
20555 Ms. Mary Sinclair Dr. J. Venn Leeds, Jr.
5711 Sumerset Street Atomic Safety and Licensin9 Midland, Michican 48660 Board Panel 10807 Atwell Harold F. Reis, Esq.
Houston, Texas 77095 Robert Lowenstein, Esq.
Lowenstein, Newman, Reis & -
Dr. Emeth A. Luebke Axelrad Atomic Safety and Licensing 1025 Connecticut Avenue Board Panel Washington, D. C.
20036 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Atomic Safety and Licensing l
Board Panel l
Myron M. Cherry, Esq.
U. S. Nuclear Regulatory Cocnission 1 IBM Plaza Washington, D. C.
20555 Chicago, Illinois 60611 L. F. Nute, Esq.
Judd L. Bacon, Esq.
Dow Chemical, U.S.A.
Consumers Power Company Michigan Division 212 West I-tichigan Avenue Midland, Michigan 48640
' Jackson, Michigan 49201
r-
. R. Rex Renfrow, III, Esq.
David J. Rosso, Esq.
Isham, Lincoln & Beale One First National Plaza Suite 4200 Chicago, Illinois 60603 Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Steve Gadler 2120 Carter Avenue St. Paul, Minnesota 55108 4
{'l Richard K. Hoefling Counsel for NRC Staff (/ j
.