ML20010J448
| ML20010J448 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 10/01/1981 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8110050087 | |
| Download: ML20010J448 (15) | |
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10/1/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CONSUMERS POWER COMPANY Docket No. 50-155 (Big Rock Point Plant)
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(Spent Fuel Pool Modification)
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NRC STAFF RESPONSE TO INTERVENORS' MOTION TO REQUIRE STAFF TO ANSWER INTERROGATORIES S I981g j
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INTRODUCTION
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\\ c, M, d The Staff of the Nuclear Regulatory Commission (Staff) herby--
responds to the motion of Intervenors Christa-Maria, Mills, and Bier (Intervenors) filed on September 11, 1981.
This motion requests the Board to require the Staff to answer certain of Intervenors' interrogatories. This motion also requests that the Board defer ruling on other interrogatories until after the Board has ruled on a motion to compel which Intervenors intend to file upon the Licensee.1/
The Starf opposes this motion in its entirety on the grounds that:
1)
The two interrogatories now filed with the Board ara not necessary to a proper decision in this proceeding, and the in,'ormation which they request is available from other sources; and Dso7
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A " Motion to Compel Answetsito Intetr.ogatories And Response to Licensees Motion For A Protective Order" was filed with the
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Licensing Board on September 18, 1981.
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2)
Intervenors' request for deferral is tanta:nount to a request for an extension of the discovery schedule for which no gouj cause has been shown.
II.
BACKGROUND In its Orda-Following Special Prahearing Conference dated January 17, 1980, the Atomic Safety and Licensing Board (Licensing Board) designated to preside over this proceeding adopted a prehearing schedule.
Consumers Power Company (Big Rock Point Nuclear Piant) LBP-80-4,11 NRC 117, 134 (1980).
In that schedule an additional 20 days were provided after issuance of the Staff's documents for the filing of " additional discovery."
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This schedule commenced to run on July 22,1981.E On August 9,1981, Intervenors served the Staff a document entitled "Christa-Maria, et al. Interrogatories to the United States Nuclear Regulatory Commission Staff." The document contained 64 interrogatories, many of which had numerous subparts.
Considering each of these subparts as a separate interrogatory, Intervenors served a total of 203 interroga-tories upon the Staff. These interrrogatories were propounded pursuant to 10 C.F.R. Q 2.740 of the Commission's regulations. They were not filed with the Board in accordance with 10 C.F.R. 5 2.720(h)(2)(ii),
which is the regulation governing the filing of interrogatories against 2_/
The Staff's documents were issued on May 15, 1981.
- However, Intervenors were granted a nine-week continuance before the com-mencement of the additional discovery period.
Licensing Board Order (Revising Schedule) (June 16,1981).
the Staff. On August 31, 1981, the Staff addressed a letter to Intervenors' counsel to the effect that, since Intervenors had not followed the Commission's regulations with respect to discovery against the Staff, the Staff would net answer Intervenors' interrogatories.
Interverors have now filed a motion with the Board for an order requiring the Staff to answer two of the 64 interrogatories which were originally served directly upon the Staff.
In addition Intervenors request that the Board defer ruling on the remaining 62 interrogatories until after the Board has ruled on a motion to compel ch Intervenors state they intend to file on Licensee. Motion to Require Staff to Answer Interrogatories (hereinafter Motion) at 2 (September 11,1981).3/
The Staff opposes both of Intervenors' requests.
III.
DISCUSSION A.
Principles of Discovery Against the Staff.
Discovery against the Staff by means of interrogatories is governed by 10 C.F.R. 9 2.720(h)(2)(ii) of the Conimission's regulations, rather than by 10 C.F.R. Q 2.740. Under 10 C.F.R. 6 2.720(h)(2)(ii),
interrogatories to the Staff must be filed with the presiding officer.
If the presiding officer (in this case tne Licensing Board) determines that the information sought by the interrogatories it necessary to a p;oper decision in the praceeding, and that the information is not 3/
Licensee was served with approximately 60 interrogstories identical to the one3 served upon the Staff.
Licensee has objected to answering any of these interrogatories.
3 reasonably available from another source, than the Board may require the Staff to answer the interrogatories.
As the Appeal Board noted in Pennsylvania Power & Light Co.
(Susquehanna Steam Electric Station, Units 1 & 2), ALAB-613,12 NRC 317, (1980), discovery against the Staff is on a different footing than discovery against other parties in a proceeding.
The Appeal Board pointed out that the Commission's regulations require Staff documents l
that are relevant to licensing proceedings be made routinely available in the NRC Public Document Room.
_Id. at 323.
These documents should, as the Appeal Board noted, reasonably disclose the basis for the Staff's position, thus obviating any need for formal discovery against the Staff.
Id. The Staff's documents relevant to this license amendment proceeding have been placed in both the NRC Public Document Room in Washir.gton, D.C.,
and in the Local Public Document Room in Charlevoix, Michigan.
Intervenors argue that it is an " established practice" for the Staff to answer their interrogatories without Board action in this proceeding.
Motion at 1.
This argument exaggerates the actual situation.
Inter-venors have only served one previous set of interrogatories on the Staff. The interrogatories in that set were propounded in accordance with 10 C.F.R. Q 2.720(h)(2)(ii).
However, Intervenors filed them informally before going to the Board to at+anpt to illicit Staff answers withcut " bothering the Board about them unless absolutely necessary."
Letter from W.S. Jordan to J.E. Moore dated June 26. 1980.
Due to the limited nJmber and to the nature of the interrogatories, the Staff was
. able to answer them informally.S/ The large number of interrogatories now served by Intervenors present a totally different situation.
Responses to these interrogatories would require a large commitment of Staff resources.EI Therefore, it is necessary to have Board guidance as to whether such a commitment must be made.
B.
Interrogatory 59 is Not Necessary to a Proper Decision in this Proceeding, and the Information it Requests is Reasonably Available From Other Sources.
Intervenors argue that Interrogatory 59 relates to Christa-Maria Contention No. 8 which has been admitted as a matter in controversy in this proceeding. Motionat3.5/ They fail to state why this interroga-tory is necessary to a proper decision with regard to this contention.
Contention No. 8, as rewritten by the Board, states:
"The occurrence of an accident similar to THI-2 which would prevent ingress to the containment building for an extended period of time would render it impossible to maintain the expanded spent fuel pool in a safe condition and would result in a significantly greater risk to the public health and safety than would be the case if the increased storage were nct allowed."
4/
Mr. O'Neill also propounded a limited number of interrogatories to the Staff. The Staff answered several of his interrogatories infonnally after advising him of the proper regulatory procedures concerning discovery to the Staff.
5/
Several attempts were made by all parties to reach agreement con-cerning both additional discovery and the filing of additional con-tentions by Intervenor. However, these attempts were unsuccessful.
-6/
The Board accepted an identical contention as John O'Neill Conten-tion No. II.E.2.
However, for ease of reference the Staff will refer to it as Contention No. 8.
. Interrogatory 59 has three subparts. The first part requests information as to the effect of the TMI-2 accident on the TMI-2 spent fuel pool. The second part of Interrogatory 59 seeks to know what the effect of an explosion or meltdown at TMI would have been on the TMI spent fuel pool. The final part of the interrogatory asks the Staff to predict what the effect of an explosion or mel'.down would be on a spent i
fuel pool containing the number of spent fuel assemblies which the proposed expansion would permit to be stored in the Big Rock pool.
The first part of Interrogatory 59 is not necessary to a proper decision concering that contention in this proceeding.
This proceeding is not concerned with the spent fuel pool at TMI.
The thrust of Con-tention No. 8 is to determine what the effect of a lack of access to the containment building would be on the Licensee's ability to maintain the spent fuel pool in a cafe condition at Big Rock.
It is not necessary to know what the effect of an accident at a totally different reactor had on the totally different spent fuel pool at that facility. What is of importance in this proceeding is what would be the effect of a lack of access to containment on the ability to maintain the Big Rock spent fuel pool. Therefore, response to this question is not necessary to a proper decision in this matter.
The second requirement which must be met before the Staff should be required by the Board to answer Interrogatory 59 is the requirement that the information the interrogatory seeks cannot be reasonably obtained from any other source.
10 C.F.R. Q 2.720(h)(2)(ii).
Intervenors make the general claim that the information this interrogatory seeks is not contained in the public records of the Commission.
With regard to the i
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first part of Interrogatory 59, Intervenors' claim is unfounded.
Information concerning the Three Mile Island accident and its effect upon that facility is plentiful in the Commission's public records.E The information this part of Interrogatory 59 seeks is, therefore, available to Intervenors via a source other than fomal discovery against the Staff.
The second part of Interrogatory 59 goes well beyond the scope of Contention No. 8.
It requests the Staff to speculate on what would have happened to the TMI-2 spent fuel pool had there been an explosion or meltdown at the TMI facility.
Thr Three Mile Island facility is not the subject of this proceeding.
Speculation concerning an accident different from the one which actually occurred at that facility would contribute nothing to a proper decision on Contention No. 8.
As far as the availability of this information is concerned, since a response would require speculation on the part of the Staff, Intervenors would be equally as capable performing such speculation on their own.
The background information with regard to the actual TMI-2 accident is plentiful, and readily available to the Intervenors in the NRC Public Document Room.
i The third part of Interrogatory 59 also goes far ' eyond the scope of o
Contention No. 8.
The interrogatory requests the Staff to analyze the
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In addition, the effect of the Three Mile Island accident on the spent fuel pool at Three Mile Island was the subject of a Board inquiry in another spent fuel pool proceeding.
Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Unit 1), LBP-80-27, 12 NRC 435 (1980).
i 1 effect of an explosion or meltdown on a spent fuel pool containing the number of spent fuel assemblies which the proposed expansion at Big Rock f
would pennit to be stored in the spent fuel pool.
This portion of 1
I Interrogatory 59 bears no relationship to Contention No. 8.
The contention does not require the Staff to perform accident analyses of explosions or meltdowns.
Rather it requires the Staff to determine whether the spent fuel pool could be maintained safely in the event that access is precluded to the containment building. Therefore, analysis of 1
the effects of an accident beyond the design basis of any spent fuel pool, on a hypothetical spent fuel pool is unnecessary to a proper decision regarding Contention No. 8.
Since this interrogatory requests hypothetical analyses, the information would be as readily available to Intervenors and their experts as it would be to the Staff.
For the reasons set forth above, I
Interroga'.ory 59 does not meet the requirements of 10 C.F.R. 5 2.720(h)(2)(ii), and the Staff should not be required to answer it.
1 C.
Responses to Interrogatory 61 are not Necessary to a Proper Decision in this Proceeding, and the Information Requested is Reasonably Available from i
Other Sources.
Interrogatory 61 has 13 parts. The first eight parts of the interrogatory request information with regard to "backfit requirements" l
developed by the Nuclear Regulatory Commission.
Motion at 4-4A.
The remainder of the interrogatory relates to a Probabilistic Risk Assessment i
(PRA) submitted to the Staff by Licensee.
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Intervenors argue that this interrogatory relates to Christa-Maria Contention No. 8 and O'Neill Contention No. VI.
As mentioned above, Contention No. 8 concerns the effect of lack of access to the contain-ment building on Licensee's ability to maintain the spent fuel pool in i
a safe condition. The first part of Interrogatory 61 requests informa-I tion concerning what changes must be made in both the reactor and the spent fuel pool to reduce the likelihood of a TMI-2 type event at Big Rock. Contention No. 8 does not require the litigation of a particular 1
accident sequence at Big Rock. Therefore, whether the likelihood of such an event can be reduced at Big Rock is not necesary to a proper decision with regard to Contention No. 8.
I The information Intervenors seek should, in large part, be available I
to Intervenors from sources other than through formal discovery of the Staff. There had been numerous documents issued concerning the TMI accident and actions which should be taken at nuclear facilities to reduce the likelihood of another such occurrence. The most notable of these documents is NUREG-0737, which is in the NRC P>blic Document Room.
Intervenors also argue that Interrogatory 61 relates to John O'Neill's Contention No. VI. This contention states that " grandfather exemptions" had been issued to Licensee which would affect the safety of the proposed expansion.
In its Order Following Special Prehearing Conference, the Board adopted an agreement reached by Applicant and Intervenor O'Neill that this contention should be withdrawn subject to its reassertion by him before the conclusion of discovery. LEP-80-4,
. _ = _ _ _ _..____
. __ supra, at 132.8_/
Intervenors have not identified any THI-related "ba'.?. fit requirements" which have been incorporated into the Commission's regulations.
If Intervenors are referring to the actions discussed in NUREG-0737, then their claim that this interrogatory relates to Conten-i tion No. VI is unfounded. The items in NUREG-0737 have not be incor-porated into the Commission's regulations and, therefore, are not subject to " grandfather exemptions." Since the information sought by Intervenors does not relate to a Commission regulation, it would contribute nothing to a decision concerning Contention No. VI.
The remainder of this Interrogatory 61 requests information con-cerning the Probabilistic Risk Assessment submitted by Licensee in March 1981.
Intervenors again attempt to relate this portion of their inter-rogatory to Christa-Maria Contention No. 8.
They do not make any showing, however, as to why information concerning the PRA would be necessary for a proper decision of that contention.
Intervenors have not established i
any connection between the existence of the PRA and tLe ability of the Licensee to maintain the spent fuel pool in a safe condition if access to containment is precluded.
It should be incumbent upon Intervenors to make such a showing to allow the Board to determine whether the l
l information It tervenors seek is necessary for a proper decision on this t
contention, fhe Staff concludes that information as to the existence of the FaA and the status of the Staff review of that document would i
contribute nothing to the Board's consideration of Contention No. 8.
l 8_/
To the Staff's knowledge, Mr. O'Neill has not reasserted this contention.
The PRA is a document generated by the Licensee. Therefore, any questions concerning the content of that document could certainly have been addressed to the Licensee rather than to the Staff.
See Interrogatory 61 h.
Information concerning whether the PRA has been approved would be available in the public records associated with this docket.
Therefore, the information sought by Intervenors in Interrogatory 61 is reasonably available through sources other than formal discovery against the Staff.
Questions concerning the reliance of the Staff upon this document for its assessment of the spent fuel pool expansion application should be answered by reference to the Staff documents relating to that application.
'or the reasons set forth above, the information sought in Interrogatory 61 is not necessary to 6 proper decision on either Christa-Maria Contention No. 8 or O'Neill Contention No. VI and the information is available from sources other than through formal discovery against the Staff.
D.
Intervenors' Request for Deferral of Rulings on Other Interrogatories Should be Denied..
Intervenors served 62 interrogatories upon the Staff in addition to those which are the subject of Intervenors' instant motion.
None of these 62 intereogate-ies have been filed with the Board in accordance with 10 C.F.R. 6 2.720(h)(2)(ii) of the Commission's regulations.
Intervenors are now, in effect, asking this Board to give them the opportunity at some time in the future to file these interrogatories properly if they
desire to do so.
If Intervenors' request were granted, the Board would be extending the time allowed for filing of discovery which was contained in the prehearing schedule.
Intervenors in NRC proceedings must familiarize themselves with the Comnission's regulations.
Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3), ALAB-615,12 NRC 350, 352 (1980).
As the Commission I
has previously stated:
... the Commission's adjudicatory system requires a certain discipline to keep it operating efficiently.
It assumes that parties will assert their own interests in a timely fashion with adequate support, and that they wil' live with the costs of their decisinns." Consolidated Edison Co. of New York, Inc. (Indian Point Station, Units 1, 2 and 3), CLI-77-2, 5 NRC 13, 15 (1977).
Intervenors in this proceeding have ignored the rules for discovery against the Staff.
By filing an identical set of interrogatories on Licensee, Intervenors have admitted that the information they seek is reasonably available from a source other trian the Staff.
An argument by Licensee that the interrogatories propounded to it are objectionable does not mean that the information sought by Intervenors is unavailable.
A wish to await a Board ruling concerning objectionable interrogatories before making an attempt to gain the same information from the Staff is not sufficient good cause for the further delay of this proceeding.
Therefore, Intervenors' request for deferral should be denied and discovery should be terminated.
IV. CONCLUSION l
For the renons set forth above, the Staft soncludes:
1)
Intervenors' motion to require the Staff to answer Interrogatories 59 and 61 should be denied; and 2)
Intervenors' request for deferral of Board rulings concerning other interrogatories should be denied.
Respectfully submitted, Y' 0'JLJ t
- 01. M erfsO_
Janice E. Moore Counsel for NRC Staff Dated at Bethesda, Maryland this 1st October, 1981.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0?tilSSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CONSUMERS POWER COMPANY
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Docket No. 50-155
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(Big Rock Point Plant)
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(Spcat Fuel Pool Modification)
CERTIFICATE OF_ SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO INTERVEN0RS' MOTION TO REQUIRE STAFF TO ANSWER 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 1st day of October,1981.
Herbert Grossman, Esq., Chairman Joseph Gallo, Esq.
Administrative Judge Isham, Lincoln & Beale Atomic Safety and Licensing Board 1120 Connet.ticut Ave,.N.W., #325 U.S. Nuclear Regulatory Conmission Washington, D. C.
20036 Washington, D.C.
20555
- John A. Leithauser Dr. Oscar H.. Paris Leithauser and Leithauser, P.C.
Administrative Judge Opal Plaza, Suite 212 Atomic Safety and Licensing Board 18301 Eight Mile Road U.S. Nuclear Regulatory Commission East Detroit, MI 48021 Washington, D.C.
20555
- John O'Neill, II Mr. Frederick J. Shon Route 2, Box 44 Administrative Judge Maple City, Michigan 49664 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Christ:-Maria Washington, D.C.
20555 Route 2, Box 108c Charlenix, MI 49720 Philip P. Steptoe, Esq.
Michael I. Miller, Esq.
Ms. JoAnne Bier Isham, Lincoln & Beale 204 Clinton i
l One First National Plaza Charlevoix, MI 49720 Suite 4200 Chicago, Illinois 60603 1
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- Atomic Safety and Licensing Mr. Thomas Dammann Appeal Board Panel Route 3, Box 241 U.S. Nuclear Regulatory Commission Charlevoix, MI 49720 Washington, D. C.
20555 Judd.. Bacon, Esq.
- Atomic Safety and Licensing Consumers Power Co.
Board Panel 212 West Michigan Avenue U.S. Nuclear Regulatory Commission Jackson, MI 49201 Washington, D. C.
20555 Mr. Gordon Howie
- Docketing and Service Section 411 Pine U.S. Nuclear Regulatory Commission Boyne City, MI 49712 Washington, D. C.
20555 Mr. Jim Mills Herbert Semmel, Esq.
Route 2, Box 108 Urban Law Institute of Charlevoix, MI 49720 The Antioch School of Law 1624 Crescent Place, N.W.
Washington, D. C.
20009 7 b Elb. M M O-Janice E. Moore Counsel for NRC Staff i
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