ML20034F634
| ML20034F634 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 02/19/1993 |
| From: | Hull J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#193-13645 OLA, NUDOCS 9303040066 | |
| Download: ML20034F634 (8) | |
Text
/3Gf5 c
ri n.
a.h kt t
UNITED STATES OF AMERICA 73 FEB 22 A9 :32 NUCLEAR REGULATORY COMMISSION t
Rf:Li <i 5 ;,stt i t. s BEFORE THE ATOMIC SAFETY AND LICENSING BOARDXKE 3'.
. b ' ici
.m In the Matter of
)
)
NORTHEAST NUCLEAR ENERGY COMPANY, et. al.
)
Docket No. 50-336 OLA i
)
(Millstone Nuclear Power
)
(Spent Fuel Pool Design)
.l Station, Unit 2)
)
NRC STAFF MOTION TO COMPEL DISCOVERY 7
The NRC Staff moves for an order compelling the Cooperative Citizen's Monitoring Network ("CCMN") to reply, by March 8,1993, to Staff's request for discovery.
MEMOR ANDUM IN SUPPORT OF MOTION TO COMPEL l
I. INTRODUCTION The Licensing Board's Order dated November 24,1992, (unpublished) (" Scheduling s
Order") established January 21, 1993, as the deadline for filing responses to uncontested discovery requests. Sec Scheduling Order, slip op, at 6. Objections to discovery requests were to be filed by January 12,1993. Id. at 7. In responding to discovery requests filed by CCMN,-
the Staff has fully complied with the Scheduling Order.'
To obtain information from CCMN regarding its one contention admitted for consideration i
)
]
in this proceeding, the Staff filed interrogatories and requests for documents on i
i 8 See Str.ffletters to Mary Ellen Marucci of CCMN dated December 29 and December 31, j
1992; Staff's responses and objections to CCMN discovery requests, filed January 12, 1993; and Staff's supplemental responses, filed February 3,1993.
9 0
9303040066 930219
{DR ADOCK 05000336
/
PDR w.
o 2-December 9,1992 (" Staff Discovery Request"). A copy of the Staff Discovery Request is attached hereto as Exhibit A.
CCMN has not filed any objections or responses to the Staff Discovery Request.
In late January 1993, Staff counsel spoke to Mary Ellen Marucci of CCMN regarding the overdue responses to the Staff Discovery Request. Ms. Marucci stated that CCMN's responses would be filed by February 1,1993. Staff counsel again spoke to Ms. Marucci on February 10, 1993, and Ms. Marucci this time stated that CCMN's responses would be filed by February 12, 1993. The Staff made clear that CCMN would be subject to a motion to compel discovery should its failure to respond to the Staff Discovery Request continue. See Staffletter to Ms.
Marucci dated February 10,1993.
7 Staff counsel once again spoke to Ms. Marucci on February 12,1993. She indicated that 1
responses were being prepared but that a snowstorm might delay her mailing the responses until 1
February 13, 1993. Staff counsel left a taped message for Ms. Marucci on February 17,1993, inquiring about the responses. Ms. Marucci called back later the same day and stated that a general response to the licensee's discovery and to the Staff Discovery Request was mailed on i
February 15, 1993. Ms. Marucci stated that more specific responses would be mailed on February 19, 1993. To date, no CCMN response to the Staff Discovery Request has been received.
For these reasons, and as further supported below, the Staff moves the Licensing Board to enter an order compelling CCMN to respond to the Staff Discovery Request.
n s
8 m
l i
i LEGAL STANDARDS "All parties have a responsibility to respond to discovery so that their opponents may gain an understanding of the bases of their contentions." Kerr-McGee Chemical Corp (West Chicago
)
' Rare Earths Facility), LBP-86-4, 23 NRC 75, 81 (1986). Interrogatories and requests for documents must either be answered or objected to in a timely fashion. See Pennsylvania Power
. & Light Co. (Susquehanna Steam Electric Station, Units I and 2), ALAB-613,~ 12 NRC 317,'322 (1980); 10 C.F.R. {} 2.740b(b),2.741(d). It is an intervenor's duty to respond to discovery based on its evidentiary responsibility to "come forward with evidence ' sufficient to require reasonable minds to inquire further' to insure that its contentions are explored at the hearing."
Susquehanna, supra,12 NRC at 340, citing Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-74-5,7 AEC 19,30-32 and n.27 (1974), reversed sub. nom. Aeschliman v. KRC, 547 F.2d 622, 628 (D.C. Cir.1976), reversed and remanded sub. nom. Vermont Yankee Nuclear Power Corp. v. NRC,435 U.S. 519,553-54 (1978). Cf. West Chicago,' supra,23 NRC at 82 (intervenor raising issue has obligation to meaningfully participate in its resolution). See also -
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17,17 NRC e
490, 493-94 (1983)(discovery request seeking basis of contention serves " dual purposes of r
narrowing the issues and preventing surprise at trial.")
As stated by a licensing board in another case involving discovery disputes:
l To permit a party to make skeletal contentions, k.eep the bases for them secret, then require its adversaries to meet any conceivable thrust at hearing would be patently
'{
unfair, and inconsistent with a sound record.
Northern States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298,1301 I
(1977).
j
t
.I r
4 In the Statement ofPolicy on Conduct ofLicensing Proceedings, CLI-81-8,13 NRC 452,.
l 454 (1981), the Commission stated:
-f Fairness to all involved in NRC's adjudicatory procedures requires that every -
participant fulfill the obligations imposed by and in accordance with applicable law and Commission regulations. While a board should endeavor to conduct the-proceeding in a manner that takes account of the special circumstances faced by any participant, the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party 3
of its hearing obligations.
DISCUSSION The Licensing Board's September 30,1992, Order, LBP-92-28, 36 NRC
, admitted CCMN's Contention I regarding criticality concerns in the Millstone 2 spent fuel pool. As reflected in Exhibit A, the Staff's Discovery Request is tightly connected with the matters' identified by the Licensing Board as relevant to CCMN's Contention 1-the only contention admitted for consideration in this proceeding.
Contention 1 was admitted based solely upon portions of the affidavit of Dr. Michio Kaku. See LBP-92-28, slip op. at 26-32. The Scheduling Order, at 4-5, establishes the issue on which discovery will be permitted. This issue, as framed by the Licensing Board in its summary of Dr. Kaku's affidavit,-is the adequacy of the criticality study performed for the 4
Millstone 2 spent feel pool's new design. Id. at 5.
Dr. Kaku's questions in this regard concerning (1) "the actual state of the Boroflex [ sic] box degradation," (2) the use of benchmarking data, (3) the use of Monte Carlo calculations, and (4) the use of a vertical buciding term, form the basis for discovery in this proceeding. Id.
1 The Scheduling Order established a deadline of January 12, 1993, for objecting to i
discovery requests, and a deadline of January 21,1993, for responding to discovery requests.
)
1 d
-i
The Staff refrained from filing a motion to compel discovery until now on the basis of (1) i CCMN's promise, in late January, to respond to the Staff Discovery Request by February 1, i
1993; (2) CCMN's promise of Febmary 10 to respond by February 12,1993; and (3) its assurance on February 12 that a response would be mailed no later than February 13,1993. At i
the time this motion is filed, the Staff still has not received any CCMN response to the Staff Discovery Request, whien was filed more than two months ago. Four times CCMN has failed to honor its discovery obligations.
Without CCMN's responses to the Staff's Discovery Request, the Staff's further preparation for hearing in this proceeding will be prejudiced unfairly. The Staff is entitled to know what, if any, evidence CCMN has which supports Contention 1. For these reasons the 2
Staff asks that the Board set a final and definite date for CCMN to respond to discovery The obligation on which CCMN has defaulted is important. As stated in West Chicago, supra, 23 NRC at 81, in regard to discovery:
This process minimizes the possibility for surprise at hearing, focusses the testimony and cross-examination, and leads to a fully developed record. We heavily weigh this factor; it is crucial to the conduct of a fair proceeding.
. The potential harm here if CCMN's present discovery conduct continues is manifest, as without knowledge of CCMN's evidence the orderly conduct of this proceeding is disrupted and other parties are prejudiced in their preparation for hearing. CCMN's failure to comply with i
2 The Staff asks that the order compel discovery by March 8,1993. A discovery response was originally due on January 21,1993, and the six weeks of additional time would give CCMN ample time to cure its default.
6-l the Scheduling Order, and its subsequent broken promises to respond to discovery, demonstrate a pattern of noncompliance and an ongoing failure to meet litigative responsibilities, Lastly, the subject of the one contention admitted by the Board in this proceeding is whether the criticality calculations of a spent fuel pool were properly performed. CCMN has an obligation to set forth the evidence it has on this important safety issue.
i i
CONCLUSION Accordingly, the Staff's motion to compel discovery should be granted, and the Board a
should order CCMN to respond to the Staff's Discovery Request by March 8,1993.
l 3
Respectfully submitted,
&b 1
c John T. Hull Counsel for NRC Staff i
Dated at Rockville, Maryland this 19th day of February 1993 f
i i
a 1
1 i
m
EXHIEIT A.
December 9,1992-i UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
NORTHEAST NUCLEAR ENERGY
).
Docket No. 50-336 OLA COMPANY, et. al.
)
(Spent Fuel Pool Design) i
)
(Millstone Nuclear Power Station,
)
Unit 2)
)
e
}
NRC STAFF'S INTERROGATORIES AND REOUEST FOR PRODUCTION OF DOCUMENTS Pursuant to 10 C.F.R. Ef 2.740b and 2.741, as modified by the Board's November 24, 1992 Order regarding discovery at 4-5, the NRC staff (Staff) hereby -
requires that Cooperative Citizen's Monitoring Network (CCMN) respond to the following interrogatories, and produce for inspection and copying the documents requested below.
Each interrogatory shall be answered separately and fully, in writing, and under oath or affirmation and shall include all pertinent information available to CCMN, its officers, employees, directors, advisors, representatives, or counsel, based upon the personal knowledge of the person answering. Documents produced in response to the request herein are to be mailed to the Office of General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555.
i 9
pn
~ '
INSTRUCTIONS A.
To the extent that CCMN does not have specific, complete, and accurate information with which to answer any interrogatory, CCMN should so state, and the interrogatory should be answered to the extent information is available, identifying each person who is believed to have accurate information with respect thereto.
B.
Each interrogatory shall be deemed to be continuing, and CCMN is required seasonably to supplement answers with additional facts, documents, it' formation, and names of witnesses which become known, in accordance with 10 C.F.R. 6 l
2.740(e)(1) and (2).
C.
The words "and" and "or" shall be constmed either conjunctively or disjunctively so as to bring within the scope of these discovery requests any information that might otherwise be construed to be outside their scope.
D.
Wherever appropriate, the singular form of a word shall be interpreted in the plural, and vice versa, so as to bring within the scope of these discovery requests any information that might otherwise be construed to be outside their scope.
E.
Please produce a copy of each document requested in the form and condition in which it exists on the date of service of this request, including all comments, notes, remarks, and other material that may have been added to the document after its initial preparation.
F.
If CCMN objects to or claims a privilege (attorney-client, work product, or other) with respect to any interrogatory or document request, in whole or in part, or seeks to withhold documents or information because of the alleged proprietary or other lj
nature of the data, please set forth all reasons and the underlying factual basis for the objection or claim of privilege in sufficient detail to permit the Atomic Safety and Licensing Board to determine the validity of the objection or claim of privilege. This f
i oescription by CCMN should include with respect to any document:
(1) author, addressor, addressee, and recipients ofindicated and " blind" copies, together with their job titles; (2) date of preparation; (3) subject matter; (4) purpose for which the document was prepared; (5) all persons to whom distributed, shown, or explained; (6) present r
custodian; (7) all persons believed to have a copy of the document; and (8) the nature of the privilege or objection asserted.
G.
For any document or part of a document that was at one time, but is no longer, in CCMN's possession, custody, or control, or which is no longer in existence, or which cannot be located or produced, identify the document, state where and how it passed out of existence or why it can no longer be located and the reasons therefore, and identify each person having knowledge concerning such disposition or loss and the contents of the document, and identify each document evidencing its prior existence and/or any fact concerning its nonexistence or loss.
DEFINITIONS AND GUIDELINES TO BE USED IN RESPONDING TO THIS DJSCOVERY REOUEST 1.
The word " document" as used herein means any written matter, whether j
produced, reproduced or stored on paper, cards, tapes, disks,. belts, charts, film, computer storage devices or any other medium and shall include, without limitation, matter in the form of books, reports, studies, statements, speeches, notebooks,-
I
-i
j agreements, appointment calendars, working papers, manuals, memoranda, notes, procedures,. orders, instructions, directions, records, correspondence, diaries, plans, diagrams, drawings, periodicals, lists, telephone logs, minutes, and photographs, and shall also include, without 1 imitation, originals, copie:. lwith or without notes or changes thereon) and drafts.
2.
The Staff requests that documents produced in compliance with this request be accompanied with an indication as to the panicular paragraphs of the Staff's discovery request under which the documents are being produced.
t 3.
"CCMN" means in the context of this discovery request Cooperative Citizen's Monitoring Network, or any ofits agents, employees, consultants, contractors, technical advisors, representatives or other persons acting for or on behalf of all or any of them, or at their direction and control, or in concert with or assisting them.
4.
"Concerning" includes referring to, responding to, relating to, pertaining i
to, in connection with, comprising, memorializipj, commenting-on, regarding, discussing, showing, describing, reflecting, analyzing, supporting, contradicting, and constituting.
5.
" Identify" when used in reference to a natural person means to set forth the follout.g:
a.
name; b.
last known residential address; c.
last known business address; i
d.
last employer; 3
g.
e.
title or position; f.
area of responsibility; and g.
business, professional, or other relationship with CCMN.
1 I
6.
" Identify" when used in reference to a document means to set ferth the following:
a.
its title; b.
its subject matter; c.
its date; i
d.
its author; e.
its addressee; f.
its file designation or other identifying designation; and g.
its present location and present custodian.
INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS 1.
Identify any person CCMN intends to call as a witness in this proceeding.
2.
With respect to all persons listed in response to Interrogatory No. I, state '
the details of each person's education, employment history, and asserted area of expertise, if any.
3.
Identify all persons known to CCMN who have knowledge concerning the
. Boroflex box degradation or presence of water gaps in the Millstone 2 spent fuel pool, and state, with respect to each such person, what evidence he/she has concerning:
a) the percentage of poisoned rack cells in the Millstone 2 spent fuel.
pool examined by or on behalf of Northeast Nuclear Energy Company (Licensee);
b) the percene.ge of poisoned rack cells in the Millstone 2 spent fuel pool having defects; and c) any concentration of gaps within or among any of the poisoned rack' l
cells in the Millstone 2 spent fuel pool.
4.
Identify all persons known to CCMN who have knowledge concerning the benchmark data relied on by the Licensee in performing criticality analyses of ;he Millstone 2 spent fuel pool, and state, with respect to each such person, what evidence -
he/she has concerning the arrangement of Boroflex boxes, fuel bores, and water in the Millstone 2 spent fuel pool.
5.
Identify all persons known to CCMN who have knowledge concerning the Monte Carlo calculations relied on by the Licensee in performing criticality analyses of the Millstone 2 spent fuel pool, and state, with respect to each such person, what esidence he/she has concerning whether or not the Monte Carlo calculations incorporated enough iterations to provide a good estimate of the pool's reactivity.
6.
Identify all persons known to CCMN who have knowledge conceming the use of vertical buckling terms in performing criticality analyses, and state, with respect i
to each such person,.what evidence he/she has concerning whether or not:
a) a vertical buckling term was used in performing any criticality j
calculations for the Millstone 2 spent fuel pool; and
, i i
b) if a vertical buckling term was used in performing any criticality calculations for the Millstone 2 spent fuel pool, was the term used correctly.
7.
Identify all persons known to CCMN who have any other knowledge allegedly supporting the Contention No. I admitted in this proceeding, and state, with respect to each such person, what evidence he/she has concerning Contention No.1.
8.
Identify all documents CCMN intends to rei, on in this proceeding.
9.
Mail to the address provided above copies of the documents listed in response to Interrogatory No. 8. Any listed documents that are NRC documents need not be produced provided they are identified properly. See Definition 6 above.
10.
As to each document listed in response to Interrogatory No. 8, state whether or not CCMN intends to seek to move each such document into the record as evidence in this proceeding.
11.
As to each document listed in response to Interrogatory No. 8, state what 1
fact or opinion CCMN intends to establish if the document is admitted into evidence.
Respectfully submitted, John T. Hull Counsel for NRC Staff Dated at Rockville, Maryland i
this 9th day of December,1992 1
~
r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
NORTHEAST NUCLEAR ENERGY
)
Docket No. 50-336 OLA COMPANY, et. al.
)
(Spent Fuel Pool Design)
)
(Millstone Nuclear Power Station,
)
Unit 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS" 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 9th day of December,1992:
Ivan W. Smith, Chairman
- Nicholas S. Reynolds Administrative Judge John A. MacEvoy.
Atomic Safety and Licensing Board Winston & Strawn Mail Stop: EW-439 1400 L Street, N.W.
U.S. Nuclear Regulatory Commission Washington, DC 20005 Washington, DC 20555 Mary E. Marucci Dr. Jerry R. Kline*
104 Brownwell Street Administrative Judge New Haven, CT 06511 Atomic Safety and Licensing Board Mail Stop: EW-439 Richard M. Kacich, Director U.S. Nuclear Regulatory Commission Nuclear Licensing Northeast
- Washington, DC 20555 -
Utilities P.O. Box 270 -
Dr. Charles N. Kelber*
Hartford, CT 06101 Administrative Judge.
Atomic Safety and Licensing Board Cooperative Citizen's Mail Stop: - EW-439 Monitoring Network U.S. Nuclear Regulatory Commission P.O. Box 1491 Washington, DC 20555 New Haven, CT 06506 L
~
. e Professor Michio Kaku Atomic Safety and Licensing Board Department of Physics Panel
- City College of New York Mail Stop: EW-439 138th St. and Convent Avenue U.S. Nuclear Regulatory Commission New York, NY 10031 Washington, DC 20555 Office of Commission Appellate Office of the Secretary * (2)
Adjudication
- Attn: Docketing and Service Mail Stop: 16-G-16 OWFN Mail Stop: 16-G-16 OWFN U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Adjudicatory File * (2)
Atomic Safety and Licensing Board Panel Mail Stop: EW-439 U.S. Nuclear Regulatory Commission Washington, DC 20555
/
J Jofi/f. Hull Counsel for NRC Staff
f ib, g
%HFI t.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
@ 22 A '32 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD gcg t t@C In the Matter of
. )-
- [hid"
)
NORTHEAST NUCLEAR ENERGY
.)
Docket No. 50-336 OLA COMPANY, et. al.
).
)
(Spent Fuel Pool Design).
(Millstone Nuclear Power Station,
)
Unit 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF MOTION TO COMPEL DISCOVERY" in i
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 19th day of February 1993:
Ivan W. Smith, Chairman
- Nicholas S. Reynolds Administrative Judge John A. MacEvoy Atomic Safety and Licensing Board Winston & Strawn Mail Stop: EW-439 1400 L Street, N.W.
U.S. Nuclear Regulatory Commission Washington, DC 20005 Washington, DC 20555 Mary E. Marucci Dr. Jerry R. Kline*
104 Brownwell Street Administrative Judge New Haven, CT 06511 Atomic Safety and Licensing Board Mail Stop: EW-439 Richard M. Kacich, Director -
U.S. Nuclear Regulatory Commission Nuclear Licensing Northeast Washington, DC 20555 Utilities j
P.O. Box 270
+
Dr. Charles N. Kelber*
Hartford, CT 06101 Administrative Judge
- Atomic Safety and Licensing Board Cooperative Citizen's Mail Stop: EW-439 Monitoring Network U.S. Nuclear Regulatory Commission P.O. Box 1491 Washington, DC 20555 New Haven, CT 06506
[
t j
s Professor Michio Kaku Atomic Safety and Licensing Board Department of Physics Panel
- City College of New York Mail Stop: EW-439 138th St. and Convent Avenue U.S. Nuclear Regulatory Commission New York, NY 10031 Washington, DC ' 20555 Office of Commission Appellate Office of the Secretary * (2)
Adjudication
- Attn: Docketing and Service Mail Stop: 16-G-16 OWFN Mail Stop: 16-G-16 OWFN U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Adjudicatory File * (2)
Atomic Safety and Licensing Board Panel Mail Stop: EW-439 U.S. Nuclear Regulatory Commission Washington, DC 20555 Y
t 3p' fi'n'T. Hull Counsel for NRC Staff
)
2
)
n I
m
.