ML20028C958
| ML20028C958 | |
| Person / Time | |
|---|---|
| Site: | Skagit |
| Issue date: | 01/05/1983 |
| From: | Thatcher T NATIONAL WILDLIFE FEDERATION, OREGON ENVIRONMENTAL COUNCIL, THATCHER, T.L. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20028C951 | List: |
| References | |
| NUDOCS 8301140345 | |
| Download: ML20028C958 (16) | |
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7 r-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY'AND LICENSING BOARD In the Matter of .)
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PUGET SOUND POWER & LIGHT. )
COMPANY, et al. ) Nos. STN.50-522, 523
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(Skagit/Hanford Nuclear. )- January-5, 1983 Project, Units 1 and 2) -)
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MEMORANDUM IN SUPPORT OF INTERVENORS' MOTION TO COMPEL DISCOVERY On December 1,.1982, Intervenors National Wildlife Federation-and Oregon Environmental Council (NWF/OEC) filed a discovery request seeking certain documents and answers to certain-interrogatories from the applicants. The bulk,.although not all, of the discover) requests relates to NWF/OEC's Contention 2 (numbering pursuant to Board Order, November 2, 1982), which alleges that "the Applicants have used an inaccurately low estimate of the financial cost of the Project in its Cost / Benefit Data."
On December 28, counsel for NWF/OEC received the applicants' response to the discovery request, in which the applicants answered
[ some of the interrogatories and agreed to provide some of the requested documents. They refused, however, to answer other j interrogatories and provide other documents.
1 Applicants base their refusal on a claim that the rejected discovery requests are not relevant to the " matters in controversy" in this proceeding. 10 C.F.R. S 2.740(b) (1) NWF/OEC dispute that l
charge and therefore seek an order compelling answers and production B301140345 830105 ~
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of documents. In this memorandum in support of that motion, we=
establish that: (1) the applicants.have improperly read.the relevancy standard in 10 C.F.R. S 2.740 (b) (1) to. limit discovery to material related to specific bases for intervenors' contentions, and (2) each discovery request is relevant.to contentions already admitted in this proceeding..
I. Discovery Requests Need Only Bear Relevance to Admitted Contentions; They May Go Beyond The Initially Stated Bases Fundamental to the applicants' objection to NWF/OEC's discovery is their assertion that "the scope of permissible discovery is . . .
limited to requests that are relevant to . . . [the initial] bases
[for NWF/OEC's contentions]." Applicants' Response at 4 That assertion, however, is wrong. It ignores the Board's Orders in this proceeding, misinterprets Commission rules and Commission precedent, and ignores the breadth and purpose of the diccovery process.
A. The Board's Orders In This Proceeding Permit Discovery That Goes Beyond The Initial Bases For Intervenors' Contentions On July 6, 1982, the Board issued a Memorandum and Order announcing that "the parties may start discovery immediately as-to the issues raised by the contentions which have been accepted by the Board." Memorandum and Order at 8 Significantly, the Board's Order does not limit discovery to the bases for contentions, but simply the " issues raised by the contentions."
Moreover, at the last prehearing conference held on December 5, 1982, the question of NWF/OEC's discovery arose. At one point,
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staff counsel sought to have;the Board limit the issues for hearing only to those raised as bases for contentions. Judge Wolf noted, in response, that parties have the right to seek other bases through discovery, and to argue those bases at the hearing, so long as all parties are fully apprised of the additional grounds for the con-tentions. Relevant portions of the transcript read as follows:
MR. THATCHER: My response as I understand the pro-cedure is that if my discovery uncovers other reasons to believe that the applicant has used an accurately low estimate of the financial costs on the project, I should be able to present that evidence. Otherwise, the discovery seems to me to be --
CHAIRMAN WOLF: I think you have the right . . . . If your discovery has unearthed other or additional bases,.then I think you have to apprise the Board and-other parties what your new bases are . . . . At that point if you wish to stand on an additional basis then you can file a petition to amend, all right?
Transcript at 141-143 B. Commission Rules Commission rules provide that " parties may obtain dis-covery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . . ." 10 C.F.R. S 2.740 1 (b) (1) The rule goes on to state that the subject matter "shall relate l
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only to those matters in controversy'which have-been identified by the Commission or the presiding officer in the prehearing order
.. . ." Id.
According to Board precedent,, cited by.the applicants them-selves, the purpose of this rule is to limit discovery "to the-contentions admitted by the presiding officer . . . ." Allied-General Nuclear' Services, (Barnwell Fuel Receiving and Storage Station) LBP-77-13, 5 NRD 489, 492 (1977) (emphasis added).
General Commission precedent, unrelated to discovery requests, confirms the view that the contentions of the parties, not the initial bases for those contentions, are the " issues in controversy" referred to in Commission rules. See, Mississippi Power and Light Company (Grand Gulf Nuclear Station Units 1 and 2) ALAB-130, 6 AEC 423, 424 (1978).
There is no indication in any Commission precedent intervenors have been able to locate that parties are limited in their discovery requests to the bases they initially propose to support their intervention. Nor do the cases cited by applicants hold to the contrary. In Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2) ALAB-107, 6 AEC 108, aff'd CLI-73-12, 6 AEC 241 (1973), the Board rejected a petition to intervene because it did not identify any contentions or bases.
Moreover, contrary to the applicants' paraphrase, the Board did not t say an intervenor "will not be heard to complain that it is not possible to formulate specific bases without the benefit of dis-covery." Applicants' Response at 4 (emphasis added) The Board's i
. :-s-actual'words, artfully altered by. applicants' paraphrase, in
-fact, were:: "We are unimpressed with petitioners' suggestion'. .. .
that it is not possible for them to state specific contentions until after they have been permitted to intervene and to avail themselves of discovery procedures." 6 AEC at 192.(emphasis added)~
In this case, ~in contrast to the intervenors in the Northern States proceeding, intervenors NWF/OEC have identified contentions and bases. They seek merely to explore.whether there is additional information in applicants' files to support the accepted contentions.
In Allied-General Nuclear Services, supra, the Board simply held that material sought with respect to reprocessing contracts for spent fuel was not relevant to a proceeding investigating the proper storage of spent fuel. Here,.there is no such divergence of issues, between the accepted contentions and the discovery request. NWF/
! OEC's contention Number 2 (numbering from Board's November 2, 1982, Order) challenges the financial cost figures used in applicants' Application for Site Certification, and most challenged discovery requests are tied directly to the financial cost of the project.
Other requests relate directly to other accepted contentions. See, Part II, infra.
l C. Applicants' Interpretation Of Discovery Rights Would Unreasonably Hamper The Administrative Process i
l Applicants' assertion that discovery is limited to the previously identified bases for intervenors' contentions ignores
- the purpose of the Commission's intervention and discovery l
regulations.
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The purpose of the intervention rules, requiring identification of contentions and bases, is not to-" require that intervenors show that their contentions are susceptible of a reasonable degree of proof." Offshore Power Systems (Manufacturing. License for Floating Nuclear Power Plant) LBP-77-48, 6 NRC 249, 251 (1978) Rather,Hby requiring that contentions have some specific basis, even before discovery starts, the Board assures that "there are, in fact,.. . .
questions which . . . possibly might warrant resolution in an adjudicatory proceeding." . Northern States Power Company, supra, 6 AEC at 192 Once the threshold test is met and the' Board is assured that an'intervenor's contentions are not frivolous, then discovery pro-ceeds. At that point, intervenors must be permitted to inquire as to additional bases for their contentions; otherwise, the discovery process is meaningless.
As the Board has noted:
It has long been recognized that discovery in litigation, as well as in agency adjudication, is intended to insure that the parties to the proceeding will have access to all relevant unprivileged information prior to the hearing . . . . Likewise, it has been uniformly. recognized that the discovery rules are to be accorded a broad and liberal treatment so that parties may obtain the fullest possible knowledge of the issues and facts before trial and that the inquiries are limited only by the requirement that they be reasonably relevant to a sensible investigation.
Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2)
LBP-75-30,1 NRC ~579, 582 The limits on the concept of relevancy,' according to the Board, are established only "to keep the inquiry from going to absurd and
oppressive bounds." Id. There is nothing in NWF/OEC's discovery 1 that even approaches the outer limits of the concept of relevancy. i Commission precedent makes it clear that discovery is l expected to turn up material justifying additional bases for contentions -- and that amendment of contentions to expand their bases should be freely allowed._ As the Commission noted in Indiana and Michigan Electric Co., (Donald C. Cook Nuclear Plant Units 1 and 2), CLI-72-25, 5 AEC 13, 14:
Unless special considerations dictate otherwise in specific circumstances, new information appearing in previously unavailable documents would generally constitute good cause for amendment, assuming, of course, that the 4
amendment is expeditiously presented and is
- otherwise proper. Such determinations rest in the sound discretion of the Licensing Board.
See also, Public Service Electric and Gas Company (Atlantic Nuclear Generating Station, Units 1 and 2) LBP-75-62, 2 NRC 702, 704 (permitting amended bases for previously admitted contentions since "they do not affect the basic substance of the contentions")'. This is exactly the process Judge Wolf evidently contemplated at the last prehearing conference, In short, the discovery and hearing process makes more sense.
g than applicant suggests. Intervenors are admitted to the licensing proceeding to litigate certain specified contentions. They must, however, demonstrate that the contentions have some substance by specifying such factual bases for the contentions known to them at the time of intervention. Liberal discovery then proceeds to permit the intervenors to determine if there are additional bases for the 4
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general contentions at issue in the proceeding. If so,_then the original bases for the contentions may be expanded _to accomodate I the new information. Nothing in Commission rules or precedent
. indicate that intervenors must, at the earliest stages of the proceeding, have the omniscience to set out all factual bases for their contentions, particularly when so much relevant information is closely held by the applicants.
For all these reasons, applicants' effort to limit discovery to questions relevant to the initially' announced bases of contentions should be rejected. The Board should permit all discovery relevant to the contentions accepted into this proceeding. In the following section, NWF/OEC demonstrates that all its discovery requests are relevant to those contentions.
II. Each Discovery Request To Which Applicant Has Objected Is Relevant To An Accepted Contention A. Discovery Requests 1 and 2 Discovery requests 1 and 2 seek information regarding capacity factors and operating history of the_ Trojan Nuclear Project, owned by applicant Portland General Electric. Applicants have objected to that request on the basis that the Trojan operating history is not indicative of the nuclear industry as a whole. In ;
addition, applicants dispute the relevancy of Trojan's history because it is of a different design than the Skagit/Hanford
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Project. (S/HP) */
-The operating history of Trojan is relevant-to NWF/OEC's Contention 2,'related to financial cost, and to Basis A for that Contention, related to capacity factors. The Pacific Northwest possesses a unique power system' tied to the variable availability of electricity generated from the region's hydropower resources.
While thermal ~ plants are constructed on the assumption of critical (low) water years, in fact, most years are not low water years and the hydro system can produce substantially more electricity than is planned for on a firm basis. Consequently, thermal plants are regularly-shut-down for economic reasons, i.e., generation of the extra hydroelectricity is cheaper than the variable costs of operating a thermal plant. The impact on the capacity: factor of th'e-thermal plants and, therefore, on the overall cost per kilowatt hour of power produced by the_ plants is the same, however, no. matter what the reason for the shut-down.
NWF/OEC's discovery request for Trojan should reveal information that will enable intervenors to assess the capacity factor and cost impacts of such economic shutdowns. That, in turn, will help them assess the reasonableness of the capacity factors and costs calculated for S/HP.
- / Applicants have agreed to provide documents from which "most of the requested information can be ascertained." NWF/OEC, of course, wish all, not most, of the information to which they are entitled.
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t B. Discovery Request--S This request seeks'information related to a comparison between the cost of Washington. Nuclear Project Unit 3 (of.which applicants are a part-owner).and S/HP, itemized pursuant to~the cost list found in Table 852-2 of the ASC/ER. It is, therefore, directly' relevant'to Basis D of NWF/OEC's Contention ~2, i.e.,
" applicants' total cost figures are low compared to other plants owned by the applicants."
Applicants object,-claiming that a comparison of itemized costs is not relevant to the' total cost differences between the two plants. This is fine hair-splitting, indeed. The total costs I are made up of the costs of individual items. Thus, for NWF/OEC to' understand'the reasons between the total cost divergence, it must-be permitted to discovery the item by item cost difference.
Even if the Board agrees with applicants that the information requested is not specifically relevant to Basis D of NWF/OEC's Contention 2, that does not deny NWF/OEC the right to inquire as to information relevant to the general cost issues raised by Contention
- 2. See Section I, supra. The cost comparison NWF/OEC seeks from applicants is relevant to that larger issue, for it reflects'on the accuracy of the applicants' S/HP cost assessments.
C. Discovery Request 6 I
In Request 6, NWF/OEC requests documentation for the cost figures found in Table 8.2-2 of the ASC/ER. >Such material is clearly relevant to NWF/OEC's financial cost contention; they wish to understand the basis for applicants' financial cost cla'ims.
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.- -11 Applicants object because such information is not relevant to the NWF/OEC bases for Contention 2, and, in particular, to Basis D,_
'i.e.,.that the total cost of S/HP is greater than the applicants' other' projects. ~As explained previously, NWF/OEC's discovery need only be relevant to contentions at issue in the proceeding, not.to ind'ividual - bases. - In any case, the information NWF/OEC seeks is-relevant to Basis D. 'Only by understanding the individual _ components of the.S/HP cost can NWF/OEC adequately compare the S/HP costs to those of applicants' other projects. Applicants assertion that total costs can be adequately understood without assessment of the factors that add up'to the total represents a strained interpretation of the concept of relevance designed simply to deny NWF/OEC access to information central to their contention.
D. Discovery Request 7 This request seeks a comparison of costs between S/HP and Washington Nuclear Project Units 4 and 5. Applicants object to providing this information, arguing again that itemized cost comparisons are irrelevant to " total cost" analyses. For the reasons stated in discussing Requests 5 and 6, requesting similar information for Washington Nuclear Project 3, the information sought in Request 7 is relevant to both Contention 2 and Basis D.
E. Discovery Request 9 Request 9 asked for all information related to the
" quantified environmental costs" of S/HP. Applicants complain that this request is not relevant to contention 2, which focuses solely on financial costs. ,
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Discovery Request 9, however, is relevant to Contention 8 (accepted by the Board's November 2, 1982, Order), which asserts that " Applicants have underestimated the environmental cost of the S/HP.. . . ." While Contention 8 is classified as a Coalition d for Safe Power issue, that does not deny NWF/OEC discovery rights with respect to it. Commission rules provide that discovery may be had with respect to "the claim or defense of any other party."
10 C.F.R. S 2.740 (b) (1) In addition, NWF/OEC recently requested that it be permitted to join as a party to Contention 8. See, Intervenors' Motion to Clarify and Amend Certain Contentions, December 13, 1982. That motion was not opposed by applicants. See, Applicants' Response, December 23, 1982. For all these reasons, applicants should be required to respond to Request 9.
F. Discovery Requests 11, 13, 14, 15, 16 These requests seek documents regarding the Applicants assumed interest rate of 9% during construction and information on transmission costs. Applicants object to providing this information solely because it is irrelevant to the bases frf UF/OEC Contention 2.
For the reasons set out above, this is insufficiecc grounds for objection. The information is clearly relevant to the question of the financial cost of the power to be produced by S/HP. Transmission data is particularly important in comparing the costs of S/HP to alternatives such as conservation that eliminate such costs. See, Contention 3 (Board's Order of November 2, 1982).
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CONCLUSION __
All of NWF/OEC's Requests for Discovery are relevant to Contentions accepted by the Board.. They respectfully request, therefore, that their motion to compel discovery be granted and applicants be' required to respond. fully to NWF/OEC discovery-requests.
Respectfully. submitted, r% /7/
Terence L. Thatcher A'ttorney for National Wildlife Federation and Oregon Environ-mental Council Suite 708, Dekum Building 519 S.W. Third Avenue Portland, OR 97204 (503) 222-1429 DATED this of January, 1983.
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%_ j UNITED STATES 0' AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
' )
PUGET SOUND POWER & LIGHT )
COMPANY, et al. ) Nos. STN 50-522, 523
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(Skagit/Hanford Nuclear ) January 5, 1983 Project, Units l'and 2) )
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CERTIFICATE OF SERVICE
- I hereby certify that the National Wildlife Federation / Oregon Environmental Council's MOTION TO COMPEL DISCOVERY AND MEMORANDUM IN SUPPORT in the above-captioned proceeding has been served upon the persons shown on the attached list by depositing copies thereof in the United States mail on January 5, 1983 with proper postage affixed for first class mail.
. DATED: January 5, 1983.
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Terence L. Thatcher Attorney for National Wildlife Federation and Oregon Environ-mental Council ,
Suite 708, Dekum Building 519 S.W. Third Avenue Portland, OR 97204 (503) 222-1429 6
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d SKAGIT/HANFO"D SERVICE LIST Commission Secretary of the Commission Attention Docketing and Service Branch U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Licensing Board John P. Wolf, Esq., Chairman Administrative Judge Atomic Safety and Licensing Board Panel 3409 Sheperd Street Chevy Chase,HMD 20015 Mr. Gustave A. Linenberger Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Frank F. Hooper Administrative Judge .
Atomic Safety and Licensing Board Panel School of Natural Resources University of Michigan Ann Arbor, MI 48190 NRC Staff Lee Scott Dewey office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Applicants F. Theodore Thomsen Perkins, Coie, Stone, Olsen & Williams 1900 Washington Building Seattle, WA 98101 Intervenors Eugene Rosolie, Director Coalition for Safe Power Suite 527, Governor Building 408 S.W. Second Avenue Portland, OR 97204
,SKACIT/HANFORD SERVICE LIST Ralph Cavanagh Natural Resources Defense Council 25 Kearny Street San Francisco, CA 94108
. James B. Hovis Yakima Indian Nation c/o Hovis,'Cockrill, Weaver and Bjur 316 North Third Street P.O. Box 487 Yakima, WAL 98909 n - - , ,n-- - ---
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