ML20028G389

Answer to Util 830201 Motion for Extension of Time.Util Fails to Show Info Sought Is Privileged,Irrelevant,Unduly Burdensome or Otherwise Improper to Produce

ML20028G389
Person / Time
Site:	Harris
Issue date:	02/04/1983
From:	Eddleman W EDDLEMAN, W.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20028G390	List: ML20028G389 ML20028G394
References
ISSUANCES-OL, NUDOCS 8302090241
Download: ML20028G389 (4)

Text

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UNITED STATES OF AMERICA NUCLEAR BEGULATOBY COMMISSION February h, 1983

'83 FEB -8 All :07 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD d [G ;c.,

Glenn O. Bright NH Dr. James H. Carpenter James L. Kelley, Chairman In the Matter of

) Dockets 50 400 OL CAROLINA POWER AND LIGHT CO. et al. ) 50-401 OL (Shearon Harris Nuclear Power Plant, )

Units 1 and 2) )

)

Wells Eddleman's Answer'to Anplicants '

• Motion for Extension 'of Time of Feb.1 I received 4 February, 1983, after the time for Applicants to either respond to my interrogatories or object to sa'me had run, tending February 3,1983), this motion. I incornorate herein by reference all facts stated in my January 31, 1983 letter to Annli-cants ' attorney Baxter,' and make this further answer to the motion:

see p 580 First, Applicants fail to connly with Pilgrim (LBP 30 as attached to the Board's Memorandum and Order of 1-25-83) in that they have not shown plainly and specifically why any uart of the information sought is either privileged, not relevant, unduly burdensome to nroduce, or "otherwise innrmper" to nroduce.

Eddleman 15 is an admitted contentioh; discovery is open on it; the Board's 1-25 Order did not stay the time to resnond to Staff proposed interrogatories, nor did it stay the time for any other -

parties to resnond to any interrogatories, though my interrogatowies filed on January 15 should have made it through the mails to the Board and uarties before this Order was enteres.

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And surely information about how CP&L estimates canacity factors is relevant and material to this sontention. It is worth noting that Eddleman 15 -is an environmental contention, i.e. it goes to the NEPA sost-benefit balance. Therefore, costs which ~ary with canacity factor (or matters which affect it, e.g. forced outage rates, renairs, steam renerator leaks) such as fuel costs, operation and maintenance costs, and " avoided costs" of energy under PURPA (the subject of inquiry in Docket No. E-100 anb 41 of the NCUC, wherein CP&L estimated avoided energy costs using a PROMOD model, and their witness King noted the complexity of the inputs to that model), is all relevant.

Pilgrim, sunra, provides that if Information soujbIthrough discovery is relevant and material (CP&L has nade no specific showing that any of it is not), a party is not excused fron furnishing such information on the grounds that it would be burden-(p. 580) some and expensive. Moreover, CP&L has made no showing, only a claim, that production of the information would h2 burdensome or costly.

I believe most of it is in their files and would only need to be copied or summarized. h C4f/) M/I4f k b It is my understanding that a proper objection to discovery or an interrogatory must be quite specific as to why the information should not be produced. Anolicants do not even identify any of the h2 interrogatories as objectionable or unrelated to Contention 15, nor do they show how any of them are (or mat be) unrelated to it.

This sort of broad-brush approach appears to violate both the letter and the spirit of Pilgrim and NRC 's discovery rules, 2.740 & following.

l While the Board's January 11 Order (served Jan.12 '83) does appear on close reading (p.3) to say the Board will rule on Eddlenan 15 Og any timely revisions thereof, there is nothing to nreclude one of the revisions being the original contention 15 or virtually

t i

. identical to it. I do not interpret tha Board's Order of Jan.11 I

l to say that Eddleman 15 must be abandoned entirely in order to plead l revised or additional contentions based on ER Amendment 5's " study" i of capacity factors and the costs and benefits therefrom.

Apolicants8 knalysis is wrong: It is unlikely that any revision of Eddleman 15 would not relate to the information sought, since  !

Eddleman 15 is about capacity factor estimates and their effect on operating costs and benefits. To concur with Anplicants' view, one must assume that both Eddleman 15 and any revisions the* eof will be rejected by the Board. Again, the noint is Edd'eman 15 is now admitted and discovery is open on it. One cannot assune that the contention and ary revisions of it would be comnletely rejected just in order that Anulicants should not resnond to interrogatories.

Applicants attempt to distinguish discovery relevant to the admitted contention and discovery related to possible amended con-tention(s) in this area. This is not possible, I submit, because the estimation of capacity factor and the other factors affecting any costs and benefits of onerating a nuclear plant (versus other resources, or at all) which are recuired tc convert a canacity factor estimate into a dollar figure are intmimatelv inte=related.

CP&L witness King said as much in NCUC Docket No. E-100 sub 41, .

just this past Decembe" (1982). Thus, any contention which may be a " revision" of Eddleman 15 would necessarily find relevance in the interrogatories cronounded on Eddleman 15, or certn*riv e nol d .

But that is no reason not to answer the.m. Intervenors are not nermitted discovery on a given contention before formulating it.

Eddleman 15 has been formulated and admitted, so discovery on it is OK.

Other contentions which may not have been formulated yet (and which conceivably might not be formulated at all), and which certainly were not formulated on January 13 (when these inte"rogatories wdh filed)

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.k- c cannot, by definition, have any discovery on them. They don't exist, they aren't before the Board or the parties, as of the time these interrogatories were served. So these interrogatories cannot be viewed as discovery ON new or revised contentions not made yet.

If Applicants ' view that discovery on matters which may relate to a possible further or future or revised contention which may later be filed, shall not be permitted, even though the discovery relates to an admitted contention, were accepted, the hearing would become a morass of delay. For in virtually every area in which any party has raised contentions, new contentions may be filed based on documents N90 Staff, Annlicants o* othe*s have not yet produced or made available. Moreover, one purnose of discovery unon admitted contentions is to enable them to be revise

• or snecified more precisely. (See e.g. 10 CFR 2.752(a)(1), (a) after (a)(6) (last paragranh) and 2.752(c) which includes amendments to the Disadings (contentions).)

Under Anolicants ' reasoning in their Motion, any discovery which might relate to some future contention would be stayed until that future contention is pleaded, and ruled upon. This would be true of discovery related to admitted contentions. I just don't see how discovery could be conducted under such conditions, as Applicants could alnost always have a motion nending to dismiss or reject any given contention, and could invariably argue that futun? ntentions or revisions of the admitted contention might be made.

But, as 2.752 above clearly shows, any content'_on nay be wavised subject to the annroval of the Board. Thus, all contentions are s&bject  ;

to the sort of objection (if such it be) that Anplicants raise heve, and discovery would becone innossible. The Board has consistently ruled so far that discovery is onen on all admitted contentions r'

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oursuanttoits9/22/82 Order. Applicants deserve no excention.t ##