ML20035B520
| ML20035B520 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 03/24/1993 |
| From: | Hull J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#293-13791 OLA, NUDOCS 9304020109 | |
| Download: ML20035B520 (12) | |
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March 24,1993 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g,,j., g g g BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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NORTHEAST NUCLEAR ENERGY
) Docket No.50-336 OLA COMPANY, et. al.
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) (Spent Fuel Pool Design)
(Millstone Nuclear Power Station,
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Unit 2)
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l NRC STAFF MOTION TO COMPEL DISCOVERY
- 1. INTRODUCTION Tne Cooperative Citizen's Monitoring Network ("CCMN") filed by mail its Response to NRC Staffs Interrogatories and Request For Production of Documents on j
March 11,1993 (" Response"). The Board in its March 15, 1993 Memorandum and e
Order (Compelling CCMN to Respond to Discovery Requests) (" Order")' granted earlier motions to compel discovery filed by Northeast Nuclear Energy Company ("NNECO" i
or " Licensee") and the Staff with regards to CCMN's February 11,1993 " Response to NRC and Northeast Utilities Request for Production of Documents."
The Staff now objects to portions of CCMN's March 11, 1993 Response, as detailed below, and moves for an order compelling further discovery from CCMN, pursuant to 10 C.F.R. f 2.740(f).
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J The Response and Order apparently crossed paths in the mail, i
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l DISCUSSION CCMN's Response is not an adequate reply to the Staff's discovery requests.2
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The Response is largely premised on the faulty assumption that the panies must take Dr. Michio Kaku's deposition to learn anything more about his opinions. The Staff's specific objections are as follows:
Staff Discovery Recuest No. 2:
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With respect to all persons listed in response to Interrogatory No.1, state the details of each person's education, employment history, and assened area of expertise, if any.
CCMN Response:
2.
(a) Dr. Kaku's statement of August 24, 1992 was exhaustive in describing his background and credentials. Please refer to that document.
(b) Mary Ellen Marucci holds an AA degree in Environmental Science, was employed as a technician for United Aircraft Research Laboratories, a i
research assistant at Yale School of Medicine, a cost estimator and expeditor for metal fabrication firms, an engineering assistant for the l
City of New Haven, CT, and other miscellaneous positions. She serves as chief executive officer (Coordinator) of CCMN, Inc.
l Obiection:
Regarding Response 2(a), Dr. Kaku's statement'says that he is a professor of theoretical nuclear physics, and has written several books, including Nuclear Pour
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Both Sides, a textbook which discusses "the nuclear controversy " The statement does i
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2 The Staff ielies upon the legal authorities cited in its February 19,1993 Motion To Compel Discovery, and does not cite those authorities in full here.
The Staff assumes CCMN is referdng to the Declaration of Dr. Michio Kaku, 2
dated August 23, 1992, which was attached to CCMN's August 24, 1992 list of contentions.
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not reveal what, if any, expertise Dr. Kaku has in the area of physics relating to the operation of commercial nuclear reactors, or more specifically, any expenise he may I
have in performing criticality calculations for spent fuel pools. The Staff has asked for details concerning Dr. Kaku's area of expertise in this case. The simple reference to the introductory paragraph of Dr. Kaku's August 23, 1992 declaration, which obviously could not have been prepared with the Staff's discovery request in mid is not.
responsive. While Dr. Kaku may be an expen in physics generally, his dedration says nothing about past experience or familiarity with spent fuel pool criticality calculations.
A responsive answer will help determine the weight that should be given to Dr. Kaku's opinions in this case.
Regarding Response 2(b), Mary Ellen Marucci fails to provide details regarding her edu:ational background. For example, what institution awarded her AA degree and -
when was the degree awarded? This response also leaves unclear the question of whether Ms. Marucci is claiming any expertise in calculating the criticality of a spent fuel pool.
Staff Discovery Recuest No. 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 i
Company (Licensee);
(b) the percentage of poisoned rack cells in the Millstone 2 spent fuel pool having defects; and b
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- i (c) any concentration of gaps within or among any of the poisoned rack cells in the Millstone 2 spent fuel pool.
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CCMN Restionse:
3.
CCMN objects to this question, at least in part, because it demands information from NNECO which that company claims to have provided, but in fact is so ambiguous that to draw any firm and substantial conclusions from it is impossible. Further, CCMN knows no person i
directly who has the first hand experience necessary to properly answer the question. However, CCMN is aware that such persons b exist.
CCMN believes Dr. Stanley Turner of Holtec Corp. to lave such knowledge.
j Objection:
This interrogatory was directed to CCMN, not NNECO. The Staff asked
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CCMN to identify persons with knowledge of relevant matters, and what evidence such persons have regarding those matters. CCMN states that "such persons do exist" and names Dr. Stan Turner of Holtec, a Licensee contractor. While the Staff understands t
CCMN's answer to mean that Dr. Turner is the only person it knows of who has knowledge of the relevant matters specified, CCMN should be ordered to more directly i
answer the interrogatory to correct the ambiguous nature of its response.
f Staff Discovery Reovest No. 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 evidence he/she has conceming whether or not the Monte Carlo calculations incorporated enough iterations to provide a good estimate of the pool's reactivity.
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CCMN Response:
5.
CCMN believes the same people listed in number 4 to also have this information. Additionally, Dr. Kaku may be able to elucidate on this matter when he is deposed.
i Objection:
The response is vague and evasive. The statement that Dr. Kaku may be able to provide evidence when his deposition is taken seems to reflect a misconception on CCMN's part that the opposing parties are obligated to take Dr. Kaku's deposition if they wish to learn anything more about his views in this case. 10 C.F.R. f 2.740(a) gives parties in NRC proceedings a range of methods to use to obtain discovery. Staff Discovery Request No. 5. is an interrogatory asking for any evidence CCMN has on whether or not enough iterations were used in the Monte Carlo calculations at issue, t
This question was raised by Dr. Kaku in his Declaration-- the document which is the sole basis upon which CCMN's Contention I was admitted'-and thus concerns " factual information reasonably related to a party's position in the proceeding, including...
analyses performed by the party." 10 C.F.R.. I 2.740(b)(3). Under these circumstances, CCMN has an obligation to consult with Dr. Kaku as necessary to answer the Staff's interrogatory, rather than making a vague statement that information may be elicited during a deposition of Dr. Kaku.
l Staff Discovery Request No. 6:
Identify all persons known to CCMN who have knowledge concerning the use of ertical buckling terms in performing criticality analyses, and
' See LBP-92-28,36 NRC 202,215-18 (1992).
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state, with respect to each such person, what evidence he/she has concerning whether or not (a) a vertical buckling term was used in performing any criticality calculations for the Millstone 2 spent fuel pool; and (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.
CCMN Response:
6.
Again those listed in number 4 should have the required information.
Regarding 6b., Dr. Kaku may address the correctness of term usage when he is deposed.
Objection:
CCMN's response that Dr. Kaku may address the correctness of term usage when his deposition is taken is evasive and is not sufficient for the same reasons as stated above in objecting to Response 5. The Supreme Court has stated, albeit in a slightly different context,5 that it is incumbent upon intervenors who wish to participate [in NRC proceedings] to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions.
Vennom rantee Nuclear Power Corp. v. NRDC, 435 U.S. 519,553 (1978). Further, the non-responsive nature of CCMN's answer makes it impossible to tell whether Dr. Kaku's views remain the same as those stated in his Declaration. Dr. Kaku has since received and has had ample time to review the extensive documentary material sent to
- The Court in Vermont Yankee Nuclear Power Corp. v. NRDC,435 U.S. 519,553-54 (1978), was discussing the NRC's obligations under the National Environmental Policy Act.
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him by NNECO and the Staff. Again, CCMN has an obligation to consult with Dr. Kaku as necessary to answer the Staff's interrogatory, rather than making a vague statement that Dr. Kaku "may address" the issue during a deposition.
Staff Discovery Request No. 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.
CCMN Response:
7.
Dr. Kaku will probably address this issue when he is deposed.
1 Obiectio.n:
CCMN's response that Dr. Kaku "will probably address this issue" when his deposition is taken is a further indication that CCMN has not conferred with Dr. Kaku in responding to the Staff's discovery requests. The reference to "this issue" is vague and ambiguous. The bases supporting the objections to Responses 5 and 6 apply with equal force here.
Moreover, regardless of any answers Dr. Kaku may give if his deposition is taken, CCMN has an obligation to answer this interrogatory, the scope of which is not limited to Dr. Kaku. For example, CCMN lists Ms. Marucci as a witness. She presumably has some knowledge or potential evidence which she thinks supports-Contention 1. The Staffis entitled to discovery of this knowledge or potential evidence.
If there is no such knowledge or potential evidence of which she is aware, a statement to this effect would be part of a responsive answer to the interrogatory.
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l Staff Discovery Recuest No. 8:
- i Identify all documents CCMN intends to rely on in this proceeding.
CCMN Response:
8.
A listing of documents known at this time has been sent under separate cover. Other documents which might be used will be listed at the respective time.
Staff Discovery Recuest No. 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.
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CCMN Response:
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Copies of documents known not to already be in the possession of the NRC and listed pursuant to number 8 have been sent under separate' l
cover. Any other documents which might be found to be useful will be supplied as soon as possible and practical.
l Staff Discovery Recuest No.10:
l 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.
CCMN Response:
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10.
As of this point in time CCMN is unsure as to which, if any, documents it will seek to move into the record as evidence in this proceeding.
Staff DiscovetY Recuest No. I1:
As to each document listed in response to Interrogatory No. 8, state what fact or opinion CCMN intends to establish if the document is admitted into evidence.
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i CCMN Response:
11.
This question can not be answered at this time because CCMN has not yet decided which, if any, documents it will seek to move into the record as evidence in this proceeding.
Obiections:'
.i The list of documents sent under separate cover to which CCMN refers is apparently CCMN's " Response to NRC and Nonheast Utilities Request for Production of Documents" dated February 11, 1993. The inadequacy of this response led to the granting of the previous motions to compel discovery.7 The statement in Response 8 that funher " documents which might be used will be listed at the respective time" is vague and ambiguous.
Responses 10 and 11 are funher indications that, subsequent to the admission of f
Contention 1 on September 30,1992,* CCMN has failed to identify relevant evidence i
or otherwise panicipate in this proceeding in a way which will help resolve the matter in dispute. See Vennont Yankee Nuclear Power Corp. v. NRDC, supra,435 U.S. at 553-
- 54. CCMN should therefore be required, by a specific date, to decide what documents it will rely on and to identify those documents and the facts it intends to establish based i
on those documents. CCMN should be advised that any documents identified after that i
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- Since Requests 8-11 all deal with the production of documents, the objections to the responses are discussed together for convenience.
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' The Board stated that "[t]he response falls so shon of making sense that we are lead [ sic] to conclude that it was not a good faith effort. Order at 3-4.
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date will not be considered absent a showing by CCMN of good cause why the document (s) was not previously identified.
The Staff's final objection relates to the documents listed as attachments 10' and 17 to CCMN's March II,1993 filing. CCMN provides no explanation as to which, if any, of the Staff's discovery requests these attachments relate. The information contained in attachment 17 has no obvious relevance to the questions raised by Dr. Kaku which form the basis of Contention 1.
CONCLUSION Based on the grounds stated above, the Staff moves for entry of an order compelling CCMN to file supplemental responses to Staff discovery request numbers 2, 3,5,6,7, S,9,10, and 11. The Staff also moves for entry of an order striking from the record the document attached to CCMN's Response and labelled as " Doc. # 17,"
absent a showing by CCMN that any information therein is relevant to Contention 1.
Respectfully submitted, N
hn T. Hull Counsel for NRC Staff Dated at Rockville, Maryland this 24th day of March,1993
' Attachment 10 was not included in the material submitted.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~93 E 24 P5 :14 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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NORTHEAST NUCLEAR ENERGY
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Docket No. 50-336 OLA l
COMPANY, et. al.
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(Spent Fuel Pool Design)
(Millstone Nuclear Power f tation,
)
Unit 2)
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i CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF MOTION TO COMPEL DISCOVERY" 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 24th day of March 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 1
i Administrative Judge New Haven, CT 06511 Atomic Safety and Licensing Board Mail Stop: EW-439 Richard M. Kacich, Director
'i U.S. Nuclear Regulatory Commission Nuclear Licensing Nonheast Washington, DC 20555 Utilities
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P.O. Box 270 Dr. Charles N. Kelber*
Hartford, CT 06101 l
Administrative Judge j
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 i
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Profe_sor Michio Kaku Atomic Safety and Licensing Board
.i 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 i
Office of Commission Appellate Office of the Secretary * (2)
Adjudication
- Attn: Docketing and Service r
Mail Stop: 16/G16 OWFN Mail Stop: 16/G16 OWFN U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Adjudicatory File" (2) i Atomic Safety and Licensing Board Panel Mail Stop: EW-439 U.S. Nuclear Regulatory Commission Washington, DC 20555 r
'fo)(n T. Hull founsel for NRC Staff i
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