ML19341D427
| ML19341D427 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 02/23/1981 |
| From: | Helwick C CALIFORNIA, UNIV. OF, LOS ANGELES, CA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8103050588 | |
| Download: ML19341D427 (14) | |
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NUCLEAR REGULATORY COMMISSION V
0 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 7
8 In the Matter of
)
Docket No. 50-142 9
)
THE REGENTS OF THE UNIVERSITY OF
)
(Proposed Renewal of
'O CALIFORNIA
)
Facility License
)
Number R-71)
I (UCLA Research Reactor)
)
12 13 14 MEMORANDUM IN RESPONSE TO INTERVENOR'S SUPPLEMENTAL 15 MOTION TO COMPEL FURTHER ANSUERS TO INTERROGATORIES 16 17 18 19 Dated:
February 23, 1981 20 DONALD L.
REIDHAAR 2]
GLENN R. WOODS CHRISTINE HELWICK 22 590 University Hal1 2200 University Avenue 23 Berkeley, California 94720 l
24 Telephone:
(415) 642-2822 25 h s 26
//
8108050 6 %e
1 The Applicant, The Regents of the University of 2
California, responds to Intervenor, Bridge the Gap's, 3
"cupplemental Motion to Compel Further Answers to 4
Interrogatories; Declaration of Mark S.
Pollock" as follows:
5 6
I.
PRELIMINARY STATEMENT 7
g In response to Intervenor's Motion to Compel 9
Further Answers to its Interrogatories, this Board, on 10 December 23, 1980, informed Applicant that it did not 11 require it to reshape its records to the Intervenor's 12 categories, but " simply be open and candid as to the details 13 of a'.'l existing records."
Applicant has done this by making 14 its record available to Intervenor.
Intevenor states in its 15 second motion to compel that it believes it now has the 16 information it needs to answer the questions.
Applicant 17 disagrees with this statement because (as stated in its 18 p2 evious answer) the inform stion which Intervenor seeks 19 cannot be compiled from Applicant's existing records.
20 23 Nonetheless the point is this:
if Intervenor 22 believes it has the evidence (records) to answer the 23 questions it asked, then the discovery process on this 24 particular matter is complete.
There is no end to be served 25 by having Applicant state under penalty of perjury that the 26 records Intervenor now has are ineed Ap plicant's records.
2
1 Rather, at the hearing on. the merits of this matter both 2
Parties will have the opportunity to argue what this 3
" evidence" proves or does not prove.
Applicant's position 4
. with regard to the points raised by Intervenor in this 5
s6cond motion is further outlined below.
6 7
II.
PRODUCTION OF RECORDS 8
-9 Applicant in its answers and supplemental answers 10 to Intervenor's First Set of Interrogatories offered to make 11 certain records available to Intervenor and as to each of 12 the requested records only awaits Intervenor's instructions 13 whether the records are to be copied and sent to Intervenor 14 or whether Intervenor would be satisfied to view the records 15 at Applicant's location.
16 17 Intervenor first requested in its letter of 18 December 30, 1980, "the records containing the information 19 sought in interrogatories 4,
5, 6 and 9,"
that is, the 20 relevant financial and accounting records fo Applicant.
21 Applicant has made these records available to Intervenor.
22 Intervenor first requested the other records offered by 23 Applicant (that is, those records offered in response to 24 Intervenor's Interrogatory No. 14) on February 5, 1981, at 25 the close of the prehearing conference.
At that time 26 Intervenor made an oral request for operating logs, reactor 3
1 operating ' time data, current reactor scheduling data, 2
certain specialized annual reports, and relevant graduate 3
student theses and dissertations.
Applicant indicated that 4
these records were available for viewing but requested that 5
Intervenor's counsel telephone Applicant's UCLA 6
representative to arrange a mutually convenient time - for 7
viewir.g.
Intervenor did not contact Applicant as suggested 8
- but, instead, on the day following this conversation 9
(February 6, 1981),
Intervenor filed this motion.
10 11 Since Intervenor has chosen not to participate in 12 the setting of a mutually convenient time for record 13 viewing, Applicant hereby gives notice to Intervenor that 14 the operating logs and related records will be available for 15 viewing on Monday, March 2, 1981, between the hours of 1:00 16 p.m.
and 5:00 p.m.
in Boelter Hall, Room 7400.
Applicant 17 wishes to emphasize that its records are available and have 18 been available; Intervenor needed only to contact 19 Applicant's representative to arrange a mutually convenient 20 viewing time.
21 22 III.
FURTHER ANSWERS 23 24 Applicant has explained in its answers and further 25 answers to the subject interrogatorie0 that Intervenor's 26 questions are unclear and ambiguous.
In accordance with the 4
y
_r
h 1
option provided in Rule 33(c) of the Federal Rules of Civil 2
Procedure, Applicant chose to make its records available to 3
Intervenor so that Intervenor could attempt to derive its 4
own answers to its questions which were unclear to 5
Applicant.
6 7
Interversr's sole support for its new motion to 3
compel further answers is based on the two documents 9
attached to its motion which Intervenor claims provide 10 answers to two of its interrogatories.
However, these 11 documents (a sample University ledger sheet and a reactor 12 total-port-hour usage chart) do not provide answers to the 13 questons asked in Intervenor's interrogatories as Applicant 14 will explain below.
Admittedly, Applicant's records are 15 relevant to the general subject matter of Intervenor's 16 inquiries, but they do not answer the particular questions 17 posed by Intervenor.
As a consequence, while Applicant has 18 offered these and other of its records to Intervenor so that 19 it can have the full opportunity to later use them as it 20 sees fit, that production by Applicant is not an admission that the information requested by Intervenor was available 21 in the form requested, nor should it be used against 22 23 Applicant as a means of demonstrating a lack of cooperation.
24 25 26 5
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1 A.
Intorrogatory No. 5 And $he Ledger Sheets 2
3 Interrogatory No. 5 asks for each of the past 4
tventy years:
5 6
"a.
What percent of the income 7
derived from operating the reactor was 8
devoted 3 the sale of services?
I 9
t 10 "b.
What percent of the income derived from operating the reactor was gg J^
devoted y education?
12 13 14 "c.
What percent of the income 15 derived from operating the reactor was 16 devoted g research?"
4 17 In the first place, the question is ambiguous--is 18 g9 it asks.ng how the income is allocated internally or what the source of the income is?
But more importantly, the ledger 20 sheet does not provide an answer even assuming Intervenor's 21 22 categories (education, research, etc.) were clear.
As 23 Applicant explained to Intervenor when it examined the
~24 records in question and as is clear from reading the account name fr m the ledger sheet, the date is accumulated for the 25
" Nuclear Energy Labs (NEL)" as a whole, not solely the 26 6
I research reactor.
Since NEL conducts activities completely 2
unrelated to reactor operations, the income shown in the NEL 3
account, 'whether coded "51" or "53" is not necessarily 4
reactor income.
5 6
If Intervenor had asked for information concerning 7
income.to "NEL, " that is, the laboratories considered as a 8
whole, Applicant could respond unambiguously by simply 9
reading the totals from the ledger sheets.
But Intervenor 10 has asked for information relating to " income derived from 11 '
operating the reactor."
i 12 i
13 Even as to the ledger entries for Dr. Emil Kalil, i
j 14 a single " commercial user," as Intervenor would describe s
15 him, the entries are ambiguous.
Intervenor on page 9 of its i
16 motion states:
"[t]hus, in Attachment A, under ' Recharges,'
17 the numerous entries to Emil K. Kalil, coded
'51' are i
j 18 inserted with a negative sign under ' Expenditures' are all 19 income from sold services of the reactor to a commercial 20 user, Emil Kalil being in the ore assaying business."
That 21 is not correct.
Kalil is charged at a rate of $65/ reactor 22 operating hour.
That is reactor income.
But Kalil is also 23 charged for any supplies or materials provided by NEL or for 24 the part-tica assistance of graduate students employed by 25 NEL who may be used by KaliJ to perform calculations or do 26 research.
These later items would generate NEL (but not l
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reactor) income.
Without examining the original invoice or
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2 billing and separating the specific charges, reactor income 3
cannot readily be distinguished from NEL income even for a i
4 single live entry on the ledger.
5 6
Applicant attempted to assist Intervenor with the 7
solution to this problem by also making available the j
8 original invoices and billings that generate ledger entries.
9 However, these original documents generally are retained for i
10 only two years.
If the invoice records are complete and if 11 the written notations on the invoices are clear, Intervenor 12 may be able to separate NEL and reactor income to its 13 satisfaction, at least for the most recent two-year period.
i 14 This will invovie much time and effort and will amount to 15 the creation of new rec 7rds compiled from several sources 16 and it is exactly for this reason that Applicant has chosen l
17 to proceed in this manner.
18 B.
Interrogatory No. 9 And The Reactor 19 Total-Port-Hour Usage Chart 20 Applicant's Reactor Total-Port-Hour Usage Chart 21 was submitted to the NRC technical staff in response to a i
22 series of questions asked by the NRC as part of the relicensing process.
By stipulation between the parties, Intervenor, Applicant and NRC staff, the questions and 25 answers were to be made available to Intervenor by the NRC 26 8
N
I staff.
Applicant has assumed that Intervenor has had this 2
document in its possession for some time.
Indeed, Applicant 3
assumes that documents made available in the public document 4
room have been provided and are available to Intervenor.
5 i
6 However, this is beside the point.
The data 7
contained on the usage chart does not answer Intervenor's 8
Interrogatory No.
9.
The question asks for " reactor 9
operating time."
The chart reports " total port hours" of 10 reactor usage.
Reactor operating time is the amount of time 11 the reactor is "on" and operating.
Port hours of reactor 12 usage is an entirely different measure.
There are four 1
J 13 experimental ports in the reactor.
Either one, two, three l
14 or conceivably four ports could be used at one time, that i
i 15 is, concurrently.
If three ports are being used i
16 concurrently for one hour, there will be three total port i
17 hours1.967593e-4 days <br />0.00472 hours <br />2.810847e-5 weeks <br />6.4685e-6 months <br /> of reactor usage for one hour of reactor operation l
(the note to the chart makes this clear).
18 1
19 There is no simple correlation between port hours 20 of usage and reactor operating hours, except that total 21 22 perating hours will always be considerably less than total 23 port hours.
If Intervenor was actually inquiring about port i
24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of usage (which is unlikely since " port hours of 25 usage" is an irrelevant consideration under 10 code of 26 Federal Regulations section 50.22),
then Applicant was 9
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I misled by Intervenor's drafting of the question.
2 3
C.
Scecific Interrogatories 4
5 Intervonor has relied essentially on its 6
" discovery" of two documents.providing "new" information in 7
support of its second motion to compel further answers; g
Applicant has discussed the relevance of these documents 4
9 above.
It remains for Applicant to discuss generally the 10 second motion to compel further answers.
11 12 Applicant has explained its objections to 13 Intervenor's Interrogatories Nos.
4, 5,
6 and 9 and its 14 response to the initial motion to compel further answers 15 dated December 12, 1980.
On December 23, this Board i
16 instructed Applicant "not to fabricate information 17 from the past or engage in an effort to reshape its records 18 to the Intervenor's categories, but simply to be open and 19 candid as to the details of all existing records."
(Page 4 20 of the ASLB order dated December 22, 1980.)
21
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22 Applicant has already arranged and is again 23 arranging a time for Intervenor to examine those remaining 74 existing records that it has not already examined.
i 25 Applicant believes this offer of its records is fully i
26 responsive to the Intervonor's request and the Board's 10
I order.
In fact, Intervenor states that it believes the 2
records already provided have answered its questions.
3 4
By way of example only, Applicant can elaborate on 5
the particular difficulties encountered in attempting to 6
provide any further answers to-Intervenor's questions.
7 Interrogatory No.
4 asks for certain definitions with g
respect to each answer g Interrogatory 1, 2, and 3.
Since 9
Applicant was unable to answer those first three 10 interrogatories, Applicant does not know to what the 11 definitions are to be related.
Is the definition of 12 "research" to be related to its use generally by the 13 Applicant (The Regents of the University of California)?
14 Its use generally by the school of Engineering?
By the NEL 15 staff?
If so, the " answer" will be a very general 16 definition, like one which could be found in any good 17 dictionary.
If the Intervenor wants a definition of 18 research when "research" is used as a statistical category 19 in the annual reports (1971-1979), Applicant can respond 20 simply that "research" means those hours of reactor 21 operation during which Principal Investigators of the 22 University conducted their experiments (data extracted 23 simply by looking at the names appearing in the operating 24 log without regard to what the research really was).
25 26 11 t
i-i 1
As the Board and the Intervonor must understand f
2 Applicant has no-special'or unique definitions of the words 3
"research," " education," and " training," other than the i
4 generally accepted definitions found in any good dictienary.
l 5
We are willing to be bound by those dictionary definitions, i
6 However, only if Intervenor specifies the context in which 7
the words it is interested in appear, can Applicant attempt f
8 to respond further.
1 l
9 f
10 IV.
CONCLUSION i
j 11 12 For the above reasons, Applicant respectfully i
13 requests that the Atomic Safety Licensing Board deny 1
l 14 Intervenor's request.
I j
15 i
16 Dated:
February 23, 1981 I
I 17 DONALD L.
RCIDHAAR 4
GLENN R. WOODS
]
Ig CHRISTINE HELWICK i
19 4
20 By
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Christine Helwick 1
21 l
22 1
23 i
24 25 l
i 26 12
l
}
(DECLARATION OF SERVICE BY MAIL (CODE CIV. PROC. SS1013a & 2015.5)-
2 I,
the undersigned, say:
I am a citizen of the United States, 3
over 18 years of age, employed in Alamed>t County, California, in l
4 which county the within-mentioned mailing occurred, and not a party 5
to the' subject cause.
My business address is 590 University Hall, f
6 2200 University Avenue, Berkeley, California 94720.
I served 7
the attached:
MEMORANDUM IN RESPONSE TO INTERVENOR'S g
SUPPLEMENTAL MOTION TO COMPEL FURTHER ANSWERS TO INTERROGATORIES 9
p 10 11 by placing a copy thereof in a separate envelope for each addressee l
12 named hereafter, addressed to each such addressee respectively 13 as follows:
14 4
15 SEE ATTACHED 16 17 q
18 Each envelope was then sealed and with the postage thereon 19 fully prepaid deposited in the United States mail by me at f
20 Berkeley, California, on February 23, 1981 I
21 There is delivery service by U.S. mail at each place so l
22 addressed or regular communication by U.S. mail between the place 23 of mailing and each place so addressed.
24 I declare under penalty of perjury that the foregoing is true 25-and correct.
i 26 Executed on February 23, 1981 at Berkeley, California.
I 6t M y b
Al 1 I
l YVONNE COSTAIL7ES r*
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i Elizabeth Bowers, Esq.
U.S. Nuclear Regulatory Commission 2
Atomic Safety & Licensing Board Washington, DC 20555 3
Dr. Emmeth A.
Luebke 4
U.S. Nuclear Regulatory Commission Atomic ' Safety & Licensing Board i
5 washington, DC 20555 6
Dr. Oscar H.
Paris U.S. Nuclear Regulatory Commission 7
Atomic Safety & Licensing Board Washington, DC 20555 8
Counsel for NRC Staff 9
Office of Executive Legal Director U.S. Nuclear Regulatory Commission 10 Maryland National Bank Building 7735 Old Georgetown Road 11 Bethesda, Maryland 20015 Daniel Hirsch 12 Committee to Bridge the Gap l
13 1637 Butler Avenue, #230 Los Angeles, CA 90025 14 Mr. Mark Pollock 15 Mr. John Bay 1
1633 Franklin Street 16 Santa Monica, CA 90404 g7 Chief, Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission gg Washington, DC 20555 19 20 i
21 22 23 24 1
25 4
26 T
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