ML19339C924
| ML19339C924 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/10/1981 |
| From: | Lessy R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8102120368 | |
| Download: ML19339C924 (13) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PUBLIC SERVICE COMPANY OF Docket Nos. 50-443 NEW HAMPSHIRE, et al.
50-444 (Seabrook Station, Units I and 2)
RESPONSE OF THE NRC STAFF TO NECNP'S MOTION TO COMPEL APPLICANT'S RESPONSE TO THREE INTERROGATORIES I.
STATEMENT OF THE CASE By Memorandum And Order dated November 6,1980, this Appeal Board, inter alia, established a schedule for hearing in this remanded proceeding and " encouraged the parties to conduct all necessary discovery on an informal basis" (" Memorandum and Order," p. 5, n. 4).
On January 2,1981, Intervenor NECNP served the Permittee, Public Service Company of New Hampshire, a set of interrogatories.
On January 21, 1981, the Pemittee filed timely responses i
i thereto but in its response objected to interrogatories 8, 9, and 15, on the ground that each of those interrogatories related to the " tectonic i
province" encompassing the Seabrook site, and that this subject matter was irrelevant to any issue before the Board.
The Pemittee further stated:
l "The reopened proceeding was ordered with respect to two issues; a relitiga-tion of the proper tectonic province was not one of them."M On February 2, y
"Pemittees' Answer And Objections To Interrogatories Of NECNP," p. 6 (January 21,1971).
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I 1981, NECNP filed its "... Motion To Cor.pel Applicant's Response To Inter-rogatories." On February 3,1981 the Appeal Board advised the Staff that if it desired to file a response to NECNP's motion to compel, such response should be in the hands of the Appeal Board by noon of February 10, 1981.
The Staff herein submits its response.
For the reasons discussed below, the Staff opposes the motion to compel as filed by NECNP.
II.
DISCUSSION A.
The Propounded Interrogatories Are Beyond The Scope of This Limited Remanded Proceeding Even a cursory examination of the propounded interrogatories reveals NECNP's assumption that the description of the " tectonic province" which should be used in this proceeding is not only not settled, but is completely open to re-discussion and re-definition.
NECNP's Interrogatory No. 8 requests the Permittee to " justify [its] choice of a tectonic province or seismic area in detail," including "all tectonic structures and seismic features which Applicant previously considered in reaching its conclusions" as well as any new information concerning tectonic features or activity "in the Northeastern United States." That interrogatory also requests a justifica-tion or explanation of the " Boston-Ottawa seismic trend."
Interrogatory 9 requests Permittee to describe and explain any other possible tectonic 2/
" Tectonic province" refers to "a region of the North American continent characterited by a relative consistency of the geologic structural features contained therein.
10 C.F.R. Part 100, Appendix A, 6 III(h).
provinces Applicant considered but rejected.
Interrogatory No.15 requests a justification of the maximum epicentral intensity that will ever occur wichin the province described in response to Question 8.
In the Staff's view, these inquiries concern natters that were not re-opened by the Commis-sion in its Order of September 25,1980.E This remanded proceeding emanates, in part, from ALAB-422, 6 NRC 33 (1977) wherein the Appeal Board, inter alia, considered NECNP's challenges to the Licensing Board's findings concerning " reactor site criteria" for the Seabrook facility.
6 NRC at 54-65.
In the words of the Appeal Board:
The Coalition advances three different theories for its claim that the safe shutdown earthquake should at a minimum be a Modified Mercalli intensity IX. We will treat them seriatum..
6 NRC at 57.
The Coalition's " theories" concerned:
(1) the probabilistic hypothesis of Dr. Chinnery for determining the maximum earthquake intensity at a given site (6 NRC at 57-60); i ) the appropriateness of treating "the entire
'9 Boston-Ottawa [ seismic] belt" "as if it were a single [ tectonic] province'O thus bringing the 1732 Montreal earthquake to the site for purposes of
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seismic analysis under Appendix A to 10 C.F.R. Part 100E (6 NRC at 60-62);
(3), the argument that the 1775 Cape Ann earthquake was really an intensity IX earthquake rather than an intensity VIII earthquake as found by the l
y
" Order," CLI-80-33,12 NRC 295 (September 25,1980).
y 6 NRC at 61.
W l
t I
Licensing Board (6 NRC at 62) and (4), the tesitmony of NECNP witness Dr. Mihalo Trifunac that the " reasonable upper bound" for the design hori-zontal acceleration of an intensity VIII earthquake should be approximately 0.49 rather than the 0.25g design value as found below (6 NRC at 62-64).
The record in this proceeding was re-opened by the Commission in its Order of September 25, 1980 with respect to only two of these four matters, i.e. the factual validity of Dr. Chinnery's probabilistic methodology and the consistency of the Staff's methodology for correlating vibratory ground motion (acceleration) with Appendix A.
The Appeal Board recognized these two limited issues in its initial Order in this remanded proceeding of September 29,1980.0 The Coalition, however, argues in its motion that the Commission did in fact "specifically refer" to tectonic provinces in its September 25, 1980 Order.U That statement is not entirely correct. The Commission in one sentence in that Order stated:
However, in calculatina the recurrence time of a greater than historical earthquake in the tectonic province con-taining the Seabrook site, only data from that province are used.8)
Thus, the Commission referred to a single tectonic province, not " tectonic provinces," and that province in the words of the Commiss' ion was "the tectonic province containing the Seabrook site." The Commission did not express any l
dissatisfaction with the finding,; holow regarding, in the Commission's words, 6]
Unpublished Order, pp.1-2, (September 29,1980).
y NECNP Motion, p. 3.
y 12 NRC at 297 (emphasis supplied).
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"that province " notwithstanding NECNP's previous challenge to those findings before the Commission. NECNP is thus requesting detailed justifications and scientific explanations of findings which have been upheld on Appeal.
Even though those matters were once part of NECNP's past challenges to the previous findings concerning the Seabrook facility, NECND should not be pemitted to bootstrap its rejected theories into this limited reopened proceeding at this time.
_ Applicable Commission Regulations and Precedent Do Not Support B.
.NECNP's Motion Commission discovery practice is governed by 10 C.F.R. 6 2.740'b)(1) which provides in pertinent part:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding,...
In a proceeding on an appiitation for a construction permit or an operating license for a pro-duction or utilization facility, discovery... shall relate only to those matters in controversy which have been identified by the Commission or the presiding officer in the prehearing order....
It is not ground for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calcu-lated to lead to the discovery of admissible evidence.
The regulation clearly states that discovery must relate to the matters in controversy which have been delineated by the Commission or presiding
[
l officer.U This principle was clearly recognized in the most recent decision l
9/
Such a requirement is clearly reasonable.
As pointed out in Frilett_e
- v. Kimberlin, 508 F.2d 205, 208 (citing Davis, Administrative Law l
Treatis_e) (3rd Cir.1974), cert den. 421 U.S. 980 (1975) generally,is-
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discovery is not available in admiiiTstrative proceedings.
The Admin trative Procedure Act contains no provision for pre-trial discovery and the Federal Rules of Civil Procedure do not apply to administrative Therefore, in the absence of a special statute or admin-proceedings.
istrative regulation [such as 10 C.F.R. 62.740,] no procedure for discovery is nomally available in an administrative proceeding. Jd.
in Pennsylvania Power and Light Co. and Allegheny Electric Cooperative Inc.
(Susquehanna Steam Electric Station Units 1 and 2), ALAB-613, 12 NRC 317 (Septembe r 23,1980).
In Susauehanna, the Appeal Board stated that " Dis-cove *y requests must be releval. co the subject matter of the proceeding; that is they may relate only to those matters in controversy which have been identified by the [ Licensing Board following a special] prehearing conference.
12 fMC at 322.
The Appeal Board later stated that "It is therefore against the number and nature of the issues actually raised that the rci.anableness of a party's discovery requests must be balanted." 0/
The question of the selection and justificacion of tectonic provinces was clearly omitted from the delineation of issues both by the Commission in its September 25, 1980 Order and by the Appeal Board in its September 29th O rde r.
The subject matter of the objected to interrogatories is, in the Staff's view, not relevant to this proceeding.
If the interrogatories in question are not relevant, is there another basis to permit aiscovery by NECNP with respect to the non-germane matter?
This question has been addressed in Allied-General Nuclear Services (Barnwell Fuel Receiving aqd Storage Station), LBP-77-13, 5 NRC 489 (1977).
In that proceeding, the Licensing Board addressed the question of " workable bounds" to discovery in light of " practical considerations" as follows:
In considering the question of relevancy under Rule 26 of the Federal Rules of Civil Procedure, the Federal courts have long recognized that discovery processes must be kept within workable bounds on a proper and logical basis for the detennination of the relevancy of that which is sought to be discovered. When the information sought is irrelevant to the proceeding, the Federal courts will not hesitate to 10/ 12 NRC at 331-32.
sustain objections to such interrogatories. Massachusetts Bondino_& Ins. Co. v. Harrisburo Trust _Go., 2 F.R.D. 197, 198 (M.D. Pa. 1941).
See Dunbar v. United States, 502 f.2d 506, 509-510 (5th Cir.1974); Goodman v. International Business Machine Corp., 59 F.R.D. 278, 279 (N.D. Ill.,1973);
_ Griffin v. [temphis Sales & Manufacturino_Co., 38 F.R.D. 54, 57 (N.D. Miss.1965). As the district court stated in Broad-wa_y & Ninety-Sixth St. Realt_y Co. v. Loew's Inc., 21 F.R.D. 347, 352 (S.D.N.Y. 1958):
practical consideration dictate that the parties should not be permitted to roam in shadow zones of relevancy and to explore matter which does not presently app 7r germane on the theory that it might conceivably become so.
The Staff is in agreement with that analysis and believes the answer to the question is clearly in the negative under the circumstances present here.N!
This is not to say, however, that mention of tectonic provinces is forbidden in the context of this remanded proceeding.
Rather, for purposes of this remand, the appropriate tectonic province under Appendix A to Part 100 which has been upheld, is the New Hampshire White Mountain Zone.1 /
Accord-ingly, interrogatories which require the respondent to define and justify the use of tectonic provinces "which the Applicant believes to exist," as well as other possible tectonic provinces which may have been examined in l
11/ The primary functions of discovery include narrowing of issues and
-See, e.g., Wright & Miller, Federal Practice &
avoidance of surprise.
Procedure:
Civil 200017 1970). The inclusion of the reopening of the tectonic issue into this remanded proceeding will not serve those l
l functions.
The issues will obviously be broadened, not narrowed.
In addition, in a limited remand proceeding with both a specific delinea-tion of issues by the Commission and a' record of previous hearings l
and appeals with respect to the question, there is very little chance of " surprise."
13/ See e.g. 6 NRC at 61.
the past but not selected (with a justification therefor) are clearly beyond the scope of this limited remanded proceeding.
h CNP also appears to have promulgated a fall-back position, that
" Assuming that the issue of the proper tectonic province has not been reopened.
NENCP's interrogatories are relevant to e reassessment of Dr. Chinnery's methodology and are calculated to lead to the discovery of admissible evidence" (NECNP Motion, p. 6).13/ Unfortunately, the actual interrogatories propounded, on their face, attempt to completely reopen the issue of tectonic provinces.
For example, interrogatories eight and nine, require a justification for each tectonic province selected or even considered.
As stated above, the Staff believes that Dr. Chinnery is lef t to describe the factual validity of his methodology in the context of previous findings regarding tectonic provinces. Therefore, evidence as to other possible provinces which anottw party may have considered (if it did) would not appear to be " admissible" as being irrelevant and immaterial to the issues at hand.
Thus, the interroga-tories do not meet NECNP's fallback position because the interrogatories do i
not lead to the discovery of admissible evidence.
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13/ There is authority to the contrary.
See, eg., Goodman v. IBM, 59 F.R.D.
278, 279 (N.D. Illinois) where the district court held that interrogatories must be relevant notwithstanding the argument that discovery should be permitted of any matter reasonably calculated to discovery of admissi-ble evidence.
_ _, III.
CONCLUSION For the reasons discussed above, the Staff believes that NECNP's motion to compel Applicant's response to three interrogatories cUncerning tectonic provinces should be denied.b Respectfully submitted, Roy P. Lessy Deputy Assistant Chief Hearing Counsel 1
i Dated at Bethesda, Maryland this 10th day of February, 1981.
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l 14/ Un Febritary 6,1981, in compliance with the requirements of 10 CFR l 2.740(c), Permittee filed a brief " Motion For A Protective Order."
Fce the reasons contained in this response, the Staff supports that
- motion, j
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Hos. 50-443 NEW HAMPSHIRE, et al.
50-444 (Seaorook Station, Units 1
)
and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF THE NRC STAFF TO NECNP'S MOTION TO COMPEL APPLICANT'S RESPONSE TO THREE INTERROGATORIES" 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 Nuclear Regulatory Commission's internal mail system, this 10th day of February, 1981:
Alan S. Rosenthal, Esq., Chairman
- Joseph F. Tubridy, Esq.
Atomic Safety and Licensing 4100 Cathedral Avenue, N.W.
Appeal Board Washington, D.C.
20016 U. S. Nuclear Regulatory Commission Wasnington, D.C.
20555 Dr. John H. Buck
- Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Ernest O. Salo Professor of Fisheries Rese3rch Dr. W. Reed Johnson Institute Atomic Safety and Licensing College of Fisheries Appeal Board University of Washington U. S. Nuclear Regulatory Commission Seattle, Washington 98195 Washington, D.C.
20555 Dr. Kenneth A. McCollom Ivan W. Smith, Esq.*
1107 West Knapp Street Atomic Safety and Licensing Stillwater, Oklahoma 74074 Boa, d Panel U. S. Euclear Regulatory Commission Washington, D.C.
20555
_- Robert A. Backus, Esq.
Ellyn R. Weiss, Esq.
O'Neill, Backus Spielman, Little Harnon & Weiss 116 Lowell Street 1725 I Street, N.W.
Manchester, New Hampshire 03101 Suite 506 Washington, D.C.
20006 Thomas G. Dignan, Jr., Esq.
John A. Ritsher, Esq.
Atomic Safety and Licensing Ropes & Gray Board Panel
- 225 Franklin Street U.S. Nuclear Regulatory Comission Boston, Massachusetts 02110 Washington, D.C.
20555 Norman Ross, Esq.
Atomic Safety and Licensing 30 Francis Street Appeal Board
- Brookline, Massachusetts 02146 U.S. Nuclear Regulatory Comission Washington, D.C.
20555 E. Tupper Kinder, Esq.
Assistant Attorney General Docketing and Service Section*
Office of Attorney General Office of the Secretary State House Annex U.S. Nuclear Regulatory Commission Room 208 Washington, D.C.
20555 Concord, New Hampshire 03301 Ms. Elizabeth H. Weinhold Francis S. Wright, Asst. Atty. Gen.
3 Godfrey Avenue Laurie Burt, Esq., Asst. Atty. Gen.
Hampton, NH 03842 Commonwealth of Massachusetts Environmental Prctection Div.
D. Pierre G. Cameron, Jr., Esq.
One Ashburton Place General Counsel 19th Floor Public Service Company of New Boston, Massachusetts 02108 Hampshire 1000 Elm Street William C. Tallman Manchester, NH 03105 Chairman and Chief Executive O'ficer Public Service Company of New Hampshire 1000 Elm Street
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Manchester, NH 03105 J
Roy P. Less7 Deputy Assistant Chief Hearing Counsel
.