ML20028C337
| ML20028C337 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 01/04/1983 |
| From: | Callihan D, Cole R, Smith I Atomic Safety and Licensing Board Panel |
| To: | NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| ISSUANCES-OL, NUDOCS 8301070354 | |
| Download: ML20028C337 (21) | |
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1/4/83 DOLMETED a
UNITED STATES OF AMERICA
'W C NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 83 JM1 -6 A7 :59 Before Administrative Judges:
Ivan W. Smith, Chairman 4,y'
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Dr. Dixon Callihan E,bbi Dr. Richard F. Cole SERVED J M og 993 In the Matter of
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Docket Nos. 50-454 OL COMMONWEALTH EDIS0N COMPANY
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50-455 OL
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(Byron Nuclear Power Station,
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Units 1 and 2)
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January 4, 1983 4
MEMORANDUM AND ORDER REQUIRING STAFF RESPONSES TO WRITTEN INTERROGATORIES The NRC Staff notified the League of Women Voters that it would not voluntarily answer several written interrogatories submitted by the League on October 22, 1982.
Therefore, on November 12, the League moved this Board to make tne requisite finoing under 10 CFR 2.720(h)(2)(ii) that the answers are "necessary to a proper decision in the proceeding" and to require the Staff to answer.
On Decenter 2 the Staff filed its formal response asserting a variety of oojections incluoing, witn respect to eacn interrogatory, the objection that answers are not necessary to a proper decision in the case.
In the meantime some of the interrogatories were 8301070354 830104 PDR ADOCK 05000454
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mooted because the related contentions were withdrawn by the December 6 stipulation anong the parties which was approved by the doard on Dece.n-ber 16.
The text of the surviving interrogatories are attached to this order.
Discovery Against the NRC Staff Under 10 CFR 2.720(h)(2)(ii) the NRC Staff need not answer inter-rogatories unless a presiding officer first finds that the answers are "necessary to a proper decision" and that the requested answers are not reasonably d)tainable from any other source. The Staff has rarely invoked this special "necessary-to-a-proper-decision" protection and we can iden-tify no reported case in which a presiding officer has been called upon to 1/
make that special determination.-
The issue presented by the Staff's position requires a broad analysis of the entire regulatory scheme of discovery of NRC Staff positions and documents.
The Appeal Board, in Pennsylvania Power and Light Co. (Susque-hanna, Units 1 and 2), ALAB-613, 12 NRC 317, 323 (1980), noted that discovery against the NRC Staff is "on a different footing" than discovery i
against other parties.
There the Appeal Board observed that the need to 1/
However, in Consumers Power Company (Midland, Units 1 and 2),
ALAB-123, 6 AEC 331, 340 (1973), the Staff successfully blocked interrogatories on the bases of undue burden and executive privilege.
Also, in a civil penalty discovery dispute, Consumers Power Company (Palisades Station), ALJ-80-1,12 NRC 117 (1980), tne Staff defenced against interrogatories on the bases of relevancy and executive privilege, but not expressly raising a necessary-to-a-proper-decision l
issue in the context of Section 2.720(h)(2)(ii).
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. find " exceptional circumstances" before requiring Staff witnesses to be deposed (Section 2.720(h)(2)(i)) and the need to find that the information is "necessary to a proper decision" with respect to written interroga-tories to the Staff is reflective of an NRC policy which requires Staff positions to be disclosed in documents available in the public document rooms pursuant to 10 CFR 2.790(a). Id,. at 323. We infer from the dis-cussion in Susquehanna that the special Staff protection afforded by Sec-i tion 2.720(h)(2) refers to whether there is a need to produce the informa-tion because it is not otherwise available, not to the subject matter of the information the Staff must produce.
This interpretation of the Staff's discovery obligations is also consistent with the Appeal Board's decision in Consumers Power Company (Midland, Units 1 and 2), ALAB-634, 13 NRC 96 (1981). There the issue was whether " exceptional circumstances" existed sufficient to require the deposition of a named Staff member not designated for that purpose Dy the Executive Director for Operations as anticipated by paragraph (i) of Sec-tion 2.720(h)(2). Again the ruling turned, in part, on whether the infor-mation was otherwise available through other Staff members, not on the nature of the information to be produced.
Significantly, the Appeal Board rejected a Staff argument that the named Staff member sought to be deposed was a "non-witness" and commented:
(a)
To begin with, whether or not the person to be deposed will later be called to testify as a witness is irrelevant for dis-covery purposes. The test is, rather, wnether "the information i
sought appears reasonably calculated to lead to the discovery of admissible evidence."
It is frequently not until after a deposition is taken that a party can tell whether the l
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. deponent will be needed as a testimonial witness.
The staff's objection puts the cart before the horse.
[ Footnote omitted]
The quoted language from 10 CFR 2.740 is the standard for discovery by any party. The lesson provided by the Midland decision is that, once the special " exceptional circumstances" have been found to exist, the Staff must produce through deposition exactly the same type of information any other party must proouce.
Paragraphs (i) and (ii) of Section 2.720(h)(2) must be read as t
parallel provisions.
Paragraph (i) requires the Executive Director for Operations to make witnesses available for depositions on matters "rele-2/
vant to the issues in the proceeding."-
But paragraph (ii) refers only to answers "necessary to a proper decision" without express reference to " relevant" information.
Does this mean that tne information required to be produced by written interrogatories to the Staff must be more important than simply relevant?
Several factors lead us to a qualified negative answer.
First, depositions are usually more burdensome to the Staff than are written interrogatories.
It would be contrary to the entire scheme of discovery to place the greatest restriction on the least burden-some information demands. More important, presiding officers cannot pre-dict during the discovery phase of a proceeding that interrogatory an-swers, yet to be produced, are literally essential to a proper decision in 2/
As we discuss below, simple relevancy is also the standard for the proouction of non-confidential NRC documents under 10 CFR 2.744.
. the sense that the answers must be a requisite part of the presiding offi-cer's consideration in the final decision.
However there is a provision of the discovery rules wnere the term, "necessary to a proper decision", is used in a context differing from our interpretation of that same term in Section 2.720(h)(2)(ii).
Section 2.744 controls the production of NRC documents which are not routinely made available under Section 2.790(a). Under Section 2.744(d) a party to a proceeding may receive an order compelling production of NRC documents:
(d)
Upon a determination by the presiding officer that the requesting party has demonstrated the relevancy of the record or document and that its production is not exempt from disclosure under 2.790 or that, if exempt, its disclosure is necessary to a proper decision in the proceeding, and the docu-ment or the information therein is not reasonably obtainable from another source, he shall order the Executive Director for Operations, to produce tne document.
Section 2.790, which is the NRC's implementation of tne Freedom of Information Act, 5 USC 552, provides for nine categories of information which, for pualic or private interest reasons (e.g., personal privacy, trade secrets, national security), ordinarily need not be disclosed.
Section 2.744(d) requires that a balancing of the nine non-disclosure principles set out in Section 2.790 be made against the need for the i
i information in NRC proceedings.
Thus the term "necessary to a proper decision" in Section 2.744 means something more than simple relevancy; it i
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t i means information important enough to outweigh the statutorily imposed 3/
considerations favoring confidentiality.'-
Nevertheless we remain comfortable with applying a less restrictive meaning to the identical term as it is used under Section 2.720(h)(2)(ii) 4/
because of the different purposes to wnich the term applies.-
Moreover, it is noteworthy that documents subject to the presiding offi-cer's determination of need are made available for that purpose in advance of any disclosure to the parties.
It is therefore our view that the " proper decision" referred to in paragraph (ii) of Section 2.720(h)(2) is a decision which is reached after the parties nave had a fair opportunity to discover and to present rele-vant information and that the term, "necessary to a proper decision", in that paragraph simply describes relevant and material answers which are not reasonably cotainable from any otner source.
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However, another licensing board interpreted the disclosure criterion of Section 2.744 in very liberal terms:
... since a party is en-i titled to discover documents that may assist its position, it would follow that the availability of such documents to that party is nec-essary to the final rendering of a proper decision."
Virginia Elec-tric and Power Company (North Anna, Units 1 and 2), LSP-7L-16, 7 AEC 302 (1974).
Tne Atomic Energy Commission affirmed that order under an abuse-of-discretion standard and, in fact, augmented it.
7 AEC I
31 3.
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In practice there would De no actual difference in the reacn of the two discovery regulations.
If the Staff were to object to or seek a protective order with respect to written interrogatories based on the nine non-disclosure considerations of Section 2.790, the same balancing against "necessary to a proper decision" would be required i
under both Section 2.720(h)(2)(ii) and Section 2.744(d). See Pali-l sades, supra,12 NRC at 120; but see, Ij[. at 119.
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. There is yet another aspect to discovery against the NRC Staff that places it on a basis different than that of other parties. The Commission provided adoitional guidance to licensing boards in the Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (May 20, i
1981). With respect to discovery we are informed tnat:
The Commission is concerned that the number of interrogatories served in some cases may place an undue burden on the parties, par-ticularly the NRC staff, and may, as a consequence, delay the start of tne nearing witnout reducing the scope or the length of the hearing.
[ Emphasis added]
Id,. at 455.
We read the quoted portion of the Policy Statement to be a recogni-tion based upon experience that the Staff is more likely than other par-5/
ties to oe the object of burdensome interrogatories.-
The statement does not purport to relieve the Staff of any discovery obliga-tions otherwise imposed by regulation; it relates to the quantity, not tne nature of the information.
Presiding officers are directed to be espe-cially aware of the heavy burdens upon the Staff.
This is consistent with the present scheme of discovery which frees the Staff from answering interrogatories until the requesting party obtains a board order. Other parties are first required to object (Section 2.740(b)) or to seek a protective order (Section 2.740(c)) to receive equivalent protection.
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See statement of consideration for the present Section 2.720(h)(2),
i 40 CFR 7895, February 24, 1975; 2-SC-21.
. One method by which presiding officers can assure that the Staff is relieved of unreasonable burden in discovery, is to determine that the information sought is both relevant and material before directing the Staff to provide it.
This is done in cur determination below.
In sum, presiding officers may direct the Staff to answer relevant and material written interrogatories when the answers are not reasonably obtainable from any other source and where the response is not privileged, otherwise exempt under the principles of Section 2.790, or unduly burdensome.
The Staff is also free to seek any additional relief to which any party is entitled under Section 2.740(c).
The Interrogatories Interrogatory 4(c) relates to League Contention 22 concerning steam generator tube integrity.
The background is that, on May 7, 1981, the Director of Nuclear Reactor Regulation denied the League's petition (under.
10 CFR 2.206) to revoke or suspend the Byron construction permit.
The petition was based in part on alleged steam tube integrity problems.
00-81-5, 13 NRC 728.
Now the League wants to know if the Director's decision has been proved unfounded by the Ginna steam tube incident in January 1982.
The Staff believes the interrogatory is an impermissible attack on the Director's decision (since affirmed, 679 F.2d 1218 (7th Cir. 1982)), and that the answer is " wholly unnecessary to a proper decision".
1 We agree that the League may not use this proceeding to challenge I
again the Director's decision, and that the interrogatory seems to be cast in that light.
But, stripped of its argumentative tone, the interrogatory seeks information the League is entitled to have in this proceeding.
Both Byron and Ginna enploy Westinghouse steam generators and there was in fact a tube rupture at Ginna on January 25, 1982.
While we are not directly I
concerned with the propriety of the Director's decision, he made factual statenents there which are relevant to the contention.
In particular, he stated that the Staff had not yet completed its review of the steam gen-erator design for Byron.
13 NRC 734.
The Byron Operating License Safety Evaluation Report (February 1982) provides little information on steam tuoe integrity.
NUREG-0876, at 5-20, 5-21.
The League is entitled to know what effect the Ginna incident has had or will have on the Staff's evaluation of steam tube integrity at 4
Byron, especially what lessons learned from Ginna will be applied to i
dyron, if any.
However, we do not at this time require such a broad answer.
In May 1982 the Staff published the SER on the restart of Ginna, NUREG-0916, in which the tube rupture incident is thoroughly discussed.
This document is, or must be made available to the League in the puolic document room for Byron.
The League must first familiarize itself with NUREG-0916, then, in informal discussion with the Staff, attenpt to resolve the matter before returning to the Board for any enforcement of the interrogatory. Any enforcement would be in conformity with this order.
If the League dishes to have the statements of Mr. Toscas (see e
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. interrog'atory 4(c)) addressed by the Staff, it must do so expressly and in particulars, not by reference to his statement which has not been provided to the Board.
Interrogatory 7(g) relates to League Contention 39 which concerns the hydrology of the Byron Station. The interrogatory seeks information on postulated accidents "as applicable to Zion which would also be appli-cable to Byron" leading to the release of radioactive material to the groundwater or area beneath Byron.
The Staff objects in part on the basis that a comparison between accident consequences of the two plants is un-1 necessary to a proper decision. While we did not read the interrogatory as requiring a comparison between Zion and Byron, we agree that that mean-ing is inferable and that any such comparison is unnecessary. The better reading, in our view, is that the League will accept answers relative to j
3yron limited to those which would also pertain to 210 :, altnough the utility of such a limitation escapes us.
In any event, the Staff may, at l
its option. limit its answers to those accident scenarios applicable to both Zion and Byron, or simply ignore the reference to Zion.
The Staff makes the further objection that the interrogatory does not specify the postulated accidents referred to nor their significance to the Byron hydrology.
This objection begs the interrogatory in that it restates as is an objection the very information sought by the interrogatory. The j
interrogatory seeks information on those accident scenarios postulated by the Staff leading to releases to the area beneath the plant.
If none have been I
postulated the Staff may simply say so.
It should, however, report those that i
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. have been postulated, and provide the requested information (e.g., isotopes, core temperatures, depth of core sinking) with respect to any such accident scenarios.
The Staff also complains that the interrogatory asks for a " great deal of detailed information".
The Staff, of course, need not analyze accident scenarios in order to respond to the interrogatory nor does it have to generate information not otherwise already in existence to provide the details of any accident scenario.
If, despite this clarification, the
" detailed information" seen by the Staff to be responsive to this inter-rogatory would place an unreasonaole burden on the Staff, it may seek a protective order.
Interrogatory 10(a) would require the Staff to state whether it agrees that multiple independent failures or common-cause failures of sys-tems and equipment are possible at Byron, and to explain in detail.
The interrogatory is relevant to League Contention 62 which alleges inadequate l
protection against "so-called ' Class 9' accidents". The lead paragraph of i
the interrogatory is inartfully worded in that it asks whether failures of unidentified systems and equipment are "possible" at Byron--a question with little value in an engineering context.
However the lead paragraph is redeemed somewhat by the details sought in subparagraph (2) in the event a "yes" answer is provided.
In its response to the instant motion the Staff explains how multi-ple independent f ailures exceed the single f ailure criterion employed by l
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. the Commission in Appendix A (General Design Criteria) to 10 CFR Part 50 and refers to the affidavit of Walton Jensen which was filed earlier in support of a summary disposition motion with respect to a comparable DAARE/ SAFE contention. Although the Staff's instant response ignores that portion of the interrogatory which inquires about common-cause f ailures, Mr. Jensen also explains how some of the General Design Criteria (GDC) require consideration of multiple failures resulting from a single occur-rence.
Icf. at 2.
In addition, as Mr. Jensen points out, multiple fail-ures from a single occurrence are considered to be single failures in l
Appendix A.
The Staff also points to a. list of the design basis events required to be analyzed by the Standard Review Plan, set out in Attachment A to the Jensen affidavit.
The information in the Staff's response and in Mr. Jensen's affidavit is very helpful and goes far in providing a factual answer to Interrogatory 10(a). The League should have modified its interrogatory to reflect tne information made available to it through Mr. Jensen's affidavit.
However the Staff has made a faulty assumption in its analysis of the reach of the interrogatory.
Neither the interrogatory nor its respective Contention 62 is limited to a challenge to the design bases for Byron.
In fact, we learned from the very affidavit relied upon by the Staff that the applicant is working with the Westinghouse Owners Group in response to Item I.C.1 of NUREG-0737 to develop Emergency Response Guidelines which will consider multiple failure events.
Jensen affidavit
. at 11.
Among the multiple failure events to be included are all five such events set out in NUREG-0737:
(1) Multiple tube ruptures in a single steam generator and tube rupture in more than one steam generator; (2)
Failure of main and auxiliary feedwater; (3)
Failure of nigh-pressure reactor coolant makeup system; (4) An anticipated transient without scram (ATWS) event following a loss of offsite power, stuck-open relief valve or safety / relief valve, or loss of main feedwater; and (5) Operator errors of omission or commission.
Id.
t 3-43.
Each of these events is beyond the design basis, each could result in serious consequences, and each therefore should be regarded as a traaitional " Class 9" event.
They have oeen identified for operator training purposes and fall within the meaning of the interrogatory which refers both to the prevention ano mitigation of Class 9 accidents.
In sum, with respect to interrogatory 10(a) we assume that, for design basis purposes under the General Design Criteria, Appendix A, of I
10 CFx Part 50, the Staff has not considered multiple independent failures i
and therefore has already answered that aspect of the interrogatory in its f
response and in Mr. Jensen's affidavit.
If this assumption is not correct the Staff should advise the Board and parties.
In addition, the Staff i
l should report any other multiple failure event with serious consequences,
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1.e., " Class-9" event, it has identified or analyzed for other purposes, even if those purposes are inconsistent with Appendix A.
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Interrogatory 14(c) seeks information concerning the quantities of N
actinide isotopes assumed to be released in any postulated Class 9 acci-V q
dent scenarios and release categories during core melt accidents. Again
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the i.eague relates its interrogatory to Zion, again the Staff objests that A s
s post'ilated Zion accidents are not necessary to a decision in this prac,eed N ' sh 6 _
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ing, and again we rule that the reference to Zion may, at the Staff's w
option, be regarded as a limitation but that no Zion comparison need be.'
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But if the Staff has postulated core melt accidents for Byron', and 4 i
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if the postulations assume the release of particular isotopes, the infor-
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Interrogatory 17 inquires whether each of tne League's 21 conten.
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tions, incitding the nine surviving contentions are related to the contin-
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I ued construction or permission to operate the Byron units.
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of additional inquires the interrogatory speculates concerning tne Staff's, answers and seeks the details of the Staff's legal and factual positions.
-, ', 7m We agree with the Staff that the continued construction of the' 3
Byron facility is a matter beyond our jurisdiction and the interrogator'y%
Then the Staff argues that the Staff'E g
will not be enforced in that area.
s opinion on the relevance of the contentions to this proceeding at this q
juncture is immaterial in that the contentions have been admitted as 3,
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i issues.' That response is accurate as far as it goes to simple relevancy, i
,'i but the ir.terrogatories attempt to seek out specific information under the
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Sroad rubric of relevancy which could reveal important aspects of the p
St)ff'spositionontneLeague'sicontentionsandcouldaffecttheLeague's
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case in a very pervasive manner.~
Eventually the League is entitled to mucIi'of the.information it seeks.
The Staff seems to recog-nize this, but states that if compelled to answer, its answer would be,
"[A{sthediscoveryandtestimonyfdrmulationprocess, progresses,the Staff position on the factual or legal merits of the con' entions will be t
artidslatea." -Response at 6.
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'The several aspects of the Staff's response'are troublesome.
First, we do not understand the Staff to claim that its legal and factual i
positions have not, yet been formed.
The Staff's position is that it is 4
r.ot yet ready to r) veal this information.
But discovery is precisely the s
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time when a part9 ls" entitled to learn the nature of an adversary's case.
That is what Tt is all about.
Susquehanna, supra, at 321.
Scheduled dis-covery has nod Qssea and it was almost passed when the Staff filed its L D response.
We have seen no additional articulation of the Staff's posi-l tions as promiseb by its response, and the time for prepared testimony and l
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3 the hearing draws near.
The parties, including the Staff, stipulated to a l
prenearing schedule (see Memorandum and Order of August 30,1982), and the
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Fo\\r example, the League inquires wnether the Staff believes the sub-t z
l ject' matter of the contentions is inapplicable or unrelated to this l
proceeding because it is barred from consideration by f4RC. regulation, rule, policy or convention.
Interrogatory 17(iii).
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' schedule does not provide for trial briefs or any mechanism other than discovery and prepared testimony for revealing the parties' respective positions.
One purpose of discovery is to avoid surprise and to reduce the in-convenience and expense of long trials.
Susquehanna, supra, at 322.
Yet if tne Staff intends to reveal its positions on the issue no earlier than the filing of written testimony, fif teen days before the hearing, the League will have no opportunity to address the Staff's position in direct testimony which must be filed at the same time.
Nor can the League care-fully prepare for cross-examination with such little advance notice. The beginning of the hearing could be delayed as a result and the hearing pro-loriged by lack of preparation.
On the other hand we are not inclined to enforce tne interrogatory as it is presently framed.
Its breadth and tne fact that it pertains to each contention suggests that it was prepared with the League's conveni-ence, not needs, in mind.
In effect it would force the Staff to prepare a trial brief on the League's contentions when no such filing has been required by the Board and wnich, in any event, would be premature. At least some of the information sougnt by the interrogatory may be available in published Staff documents but the League has not demonstrated that it has attempted to satisfy its requirements from other sources.
Therefore we will require the League to reconsider its Interrogatory 17 and resubmit it only with the express certification that
. the information is necessary for the preparation of its case and is not otherwise available.
Then the League and the Staff should attempt to resolve the matter informally in accordance with this order.
Failing that approach the League might consider depositions as a more direct method of discovery, or it may petition this Board to convene a special conference tu assist in resolving any dispute.
League Interrogatories 5(e), 9(a), ll(b), not answered by the Staff, are moot because the respective contentions have been
, withdrawn.
Schedule for Compliance Any party may move for reconsideration or modification of this order within five days after service.
The League and the Staff shall car.mence informal discussions l
with respect to Interrogatories 4(c) and 17 within ten days after service of this order.
In the event informal discussions are not successful, the League shall seek relief from the Board no later than twenty days after service.
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The Staff shall answer Interrogatories 7(g),10(a) and 14(c) within twenty days after service.
THE ATOMIC SAFETY AND LICENSING BOARD N on f C 1 % -L Dixon CalTihan M
ADMINISTRATIVE JUDGE bu Richard F. Cole ADMINISTRATIVE JUDGE
//AY#1//f/ Wairman Ivan W. '5rffith ADMINISTRATIVE LAW JUDGE Bethesda, Maryland lm s n /2 G
a
ATTACHI1ENT y
it UNANSWERED LEAGUE INTERROGATORIES 4(c).
sta',e whether you agree that the steam-generator-related position presented in the Director's decision concerning Byron under 10 C.F.R. Sec. 2.206 by Harold R. Denton, filed May 7,1981, at pages 6-8 has been proved unfounded by the accident which occurred in early 1982 a t the Niagara Mohawk Ginna plant despite the incorporation of suggested design and other changes, and especially in light of the statements of James Toscas of CECO (who has conceded that an accident similar to the one at Ginna could occur at Byron), and explain your answers in detail; f -
7(g),
for each of the accident scenarios postulated as applicable to(Zion which would also be applicable to Ilyron and which w ere assu m ed to lea f fc the release of radionctive materials to the groundwater or to the arca benenth the Byron plant, or in the vicinity of the Byron plant, state with specificity by isotopes what varietics of radionctive material would be released, the range of core temperatures which have been assumed for cny accident scenarios involving a core melt, and the assumed depth to which the core could sink, and the basis for these assumptions at Byron; state whether or not you agee that multiple independent
.g3 or common-eause failures of systems and equipment are possible at Byron; (1) if your answer is no, explain the reasons for your answer in detail; (2) if your answer is yes, staie with particularity (i) which Byron-specific multiple failure sequences you believe could lead to a class 9 accident, (ii) what measures the Staff is requiring or recom mending to CECO to employ or will require or recommend to CECO to employ in the future to prevent or mitigate the occurrence and the ef f ec ts of such Class 9 accidents, and (iii) if no Byron-specific multiple f ailur e sequences / class 9 s c enn.-ics have been recommended or required or if none will be recommended or required to be developed, explain in detail why they have not been or will not be;
14(c).
with reference to the Class 9 accident scenarios and release categories which have been postulated for 7 ion in its PR A which would also be applicable to Dyron, what quantities of actinide isotopes have been assumed to be released during core melt accidents, specifically including, but not limited to, the released quantities of plutonium, neptunium, and americium; 17' Separately with respect Contentions Nos. I A, 8,19, 22,to each of the Lcngue's Revised 53, 54, 61, 62, 63, 71, 77, 106, 108, 109,28, 32, 34, 39, 41, 42, 4 lil, and 112, state in specific detail:
(i)
Do you agree that cach such Revised Contention is related or applicable t o, in whole or in part, consideration a
of continued construction and/or permission to operate each or both of the Byron Units?
If your answer to this question with respect to any Revised Contention is yes, glense explain your answer in detail.
If your answer to this question is no with respect to nny Revised Cont ention, plesse exclain your answer in detail, including all factual and other reasons why you believe cach such Revised Contention is unrelated or inapplic"Ne to the Eyron Units; (ii)
With respect to ench "no" answer in (i) nhove, state in specific detail whether it is your position that the problem or issue enised by each such
't e vis ed Contention is totally innpplicable and unre!nted to the Byron Units, in the sense that no consideration of l
I any kind need be had concerning cach such R evised Contention's relation or applicability to the Dyron Units; (iii)
If any part of your answer to (1) er Oil above.
relating to any Revised Contention is based in whole or in part upon the position that the subject matter of a Revised Contention is inapplicable (or unrelated) because (1) the subject matter has been considered at the construction phase hearing of the Byron Units; (2) the subject matter is barred from consideration at the operating hearings i.erein by an NRC regulation, rule, crit erion, policy or convention; or (3) a Revised Contant:en has not specifically set forth a sufficient nexus (within the meaning of the River Bend Decision, A LAB-444, 6 N.R.C. 760 (1977])
regarding the Byron Units, then with respect to each such answer regarding 'each such Revised Contention, please also state _in soccific detail, giving reasons for your position:
r (a)
Regarding (iii)(1) above, why it is your position that no facts or events have occurred subsequent to the issuance of the construction p?-mits herein which present a sufficient ground for r e-exa mining the subject mater of the Revised Contention at the operating stage herein; (b)
Regarding (iii)( 2) above, what NRC r egula t ion, rule, crit erion, policy or convention you believe bars consider, tion of the subject matter of the Revised Contention, and why you contend that there is no reason for waiving the applicability of any such regulation, rule, policy, criterien or convention to this proceeding; and (c)
R egarding (iii)(3) above, wha t fact, opinion, or-other analysis of which you are aware (specifienlly and in de t ail explaining such fact, opinion, or other analysis) which can form the basis for a sufficient nexus to the Byron Units; in connection with your answer to this subpart, if you state you are unaware of any facts, opinions, or analyses which can form such nexus, please also state in detail whether (and, if so, why) you believe it is i m p ossible, as a ma t t er of scientific or environmental application, for any nexus to be supplied whatsoever.
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