ML20038C168

Progress Rept on Resolving Discovery Disputes.Discusses Applicant/Intervenor 811104 & 1112 Meetings Re Content of Final Sets of Followup Interrogatories

ML20038C168
Person / Time
Site:	05000142
Issue date:	12/04/1981
From:	Hirsch D COMMITTEE TO BRIDGE THE GAP
To:	Bowers G, Luebke E, Paris O Atomic Safety and Licensing Board Panel
References
NUDOCS 8112100200
Download: ML20038C168 (6)

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,s COMMITTEE TO BRIDGE THE GAP 1637 BUTLER AVENUE #203 o LOS ANGELES, CAUFORNIA 90025 gpf}p0 (213) 4784829 as from Box 686

'81 DEC -8 PS:18 Ben Lomond, CA 95005 (408)336-5381 December 4,1981 H w_ un,

_ , h3 i SERV!CE HANCH Elizabeth S. Bowers, Esq. , Chairman Dr. Emmeth A. Luebke Administrative Jtzige Administrative Judge Atomic Safety and Licensin6 Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 2055S Washington, D.C. 20555 Dr. Oscar H. Paris , ,

Administrative.-' Judge .

l Atomic Safety and Licensing Board c jn U.S. Nuclear Regulatory Commission S Vashington, D.C. 20555 bEco

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%" 1981 u q In the Mitter of \ N > %aa The Regents of the University of Californ'ia  % " ' '

(UCLA Research Reactor) W #

Docket No. 50-142 4 M (Proposed Renewal of Facility License)

RE: REPORT ON PROGRESS TOWARDS RESOLVING DISCOVERY DISPUIES

Dear Administrative Judges:

Pursuant to several Board Orders directing the parties to meet and confer in attempts to resolve discovery disputes without necessity of motions to the Board,' several discovery conferences have taken place among the parties in recent weeks. This memorandum updates previous reports of September 14 and October 27 as to progress mado towards resolving said disputes.

Applicant-Intervenor Matters Representatives of Applicant and Intervenor met and conferred on November 4 and again on November 12 in efforts to resolve a series of outstanding disputes, principal among them being the content of Applicant's and Intervenor's final sets of follow-up interrogatories to each other and CBG's requests far: document production and for right to enter upon property for purposes of inspection. In addition, there had been substantial disagreoment as to whether Applicant has a duty to serve Intervenor copies of all Applicant-Staff correspondence and to notice Intervenor of Staff-Applicant face-to-face mee' tings. Progress on all these matters has been made, although certain matters umain outstanding, and agreements need finalizing and, in some cases, clarification.

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1 At the discovery conference of November 12, discussion was begun as tosdisputes as to the adequacy of certain of Applicant's most recent interrogatory answers. That discussion did not proceed very far before the conference ended: it will be continued at the next conference, as yet >

unscheduled.

Applicant had initially objected entirely to permitting an inspection of its facility by Intervonor and the taking of photographs during said inspection. Much discussion ensued regarding these matters, with the preliminary result that Applicant' permitted anlinspectionw limited to areas and items of Applicant's chW , on November 17, from 7:00 a.m.  ;

to noon. Photographs, with certain exceptions, were permitted: however, -

! Intertenor was to imm=Mately, upon completion of shooting of each roll of film, provide a representative of the Applicant with the film itself. -

1 Applicant is to develop the film, and at a future discovery conference the parties are to discuss objections, if any, Applicant may have to releasing specific photographs or groups of photographs. . . -

It is understood by the parties that if agreement cannot be reached

, between them as to specific items or groups of photographic evidence, '

motions to the Board would be a last resort. Both parties are hopeful, however, that agreement can be reached. -

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. Likewise, by agreeing to attend the inspection permitted by Applicant, Intervenor in no'way waivoi its discovery rights as to the areas or items identified in its inspection requests of September 3 and 11 nor such other rights as it may desire to exercise in the matter. Certain aspects of the inspection requests were not permitted during.the November 17 inspection.

It was understood that the parties would discuss these disputes at'a subsequent conference and that additional inspection might be necessary. -

Hal Bernard of the NRC Staff attended the inspection as an observer

, and, we later learned, rdturned to the facility on November 19 to take additional photographs. -

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Matters related to the CBG photographs, disputed aspects of the inspection, Applicant's answers to CBG interrogatories, service of Staff-Applicant correspondence and notice of Staff-Applicant meetings, plus certain other outstanding matters ar well as finalization of previous agreements,' will be discussed at future discovery conferences. The Board will be kept informed of developments.

. Staff-Intervenor Mitters

, Representatives of Staff and Intervenor met and conferred in San Prancisco November 24 as to the matters in dispute between them, primarily the CBG interrogatories to Staff as to the SER, EIA, and the two related Staff documents (the Battelle and Los Alamos reports). Certain other matters '

, (e.g. service of Staff-Applicant correspondence and notice of Staff-Applicant meetings) were also discussed. Considerable progress appears to have been i mada as to most issues.

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, As to the interrogatories related to the SER and EIA, Intervonor, mindful of the Boazd's Order in this ro6ard, proposed a 3arge reduction in the number of said interrogatories, As to certain other interro6atories, Staff provided verbal answers which were sufficient for the purpose intended.

As to a great majority of the remaining interrogatories, Staff indicated that it had no independent information other than that contained in the -

primary documents in the case, copies of which Intervono: had. This left a relatively few questions, for which Staff had answers not readily available elsewhere and importance of which to the case was tentatively agreed to by both parties. In order to reduce the burden on Staff, a new preface to the CBG interrogatories was tentatively agreed tog it succeeds in both putting.CBG on notice as to what independent information Staff has on certain matters, whilemt requiring any written response to the interro6atories for which Staff had no independent information.

The new preface to CBG's SER and EIA interro6atories is as follows: -

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1. In answering the following set of interro6atories, NRC Staff need only specifically answer those questions where the Staff has

! in its possession or knowledge, information relevant to such questions other than information contained in the following documents:

UCLA's Application, the Facility Annual Reports, I & E Inspection Reports, Applicant's two sets of answers to NRC Staff questions, NUREG/CR-2198, NUREG/CR-2079 or where such information is derived solely from the engineering s judgements of the NRC Staff. -

The absence of a response to any specific interro6atory will be deemed an answer to such interrogatory stating that the NRC Staff has no information relevant to such intettrogatory other than such information as is contained in the above referenced documents or information which is' derived solely from the ~

engineering judgement of the NRC Staff.

2. In answering any interro6atory where the sole source or sources of Staff information are documents,other than those refersaced above, believed to be on file in the Local Public Document Room, Staff

, need only answer such interrogatory by indicating by date and description i such documentary source.

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'Ihe above preface only refers to those interrogatories not already offerred to be withdrawn by CBG.

The November 24 Intervenor-Staff meeting thus appears to have resolved the dispute as to the EIA and SER interrogatories, although Staff indicated that as it prepares its answers it may have to discuss modifications of the tentative agreement with CBG. CBG likewise indicated that should significant modifications be proposed, its offer of withdrawal of certain interrogatories might need to be reconsidered. Both parties appear hopeful that the matter is now resolved and that, if modifications of the Nov. 24 solutions are proposed, they can be agreed to without resort to motions to the Board.

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l Progress was also made with regards CBG's interrogatories as to '

, the Battelle and Los Alamos studies commissioned by Staff. The discussions

, were complicated slightly by the unique status of those reporta due to 4

Applicant's recent announceaant that it intended to amend its Application by removing certain contested sections and replacing them by reference with l the two Staff documents. Thus the documents in question are importanteto i the casa of both Staff and Applicant.

Intervenor indicated at the discovery conference that it would be l

prepared to significantly reduce the number of interrogatories as to i the two documents were, as in the case of the SER and EIA, another ===na i for acquiring the necessary information (i.e. cross - =in= tion of the i authors of the reports at h=My) Staff indicated, however, that -it did not intend to call as a witness G.E. Cort, the author of the Los m aae l study, and intended to call only one of the three authors of the Battelle report, although Staff continued to rely on both reports in aspects of its case.

Nonetheless, Intervenor proposed substantial reductions in the number l

of interrogatories as to the Battelle report and eliminated a lesser number i of interiogatories as to the Eos-Alamos report. Staff indicated that it

,would consult with the authors of.those reports as to the re==4ni y i

interrogatories and that further discussions, if necessary, between. Staff and Intervenor could take place thereafter by phone.

Today a message was received from Ms. Woodhead indicating its current position as to the remaining interrogatories as to the two reports. Thus, certain disputes remain to be discussed, discussion of which'can hopefully take place by phone next week.

Progress was made on the issue of Staff-Applicant correspondence-and Staff-Applicant meetings. Staff indicated it was its policy to serve Intervenor all such correspondence and to give Intervenor as much notice as possible regarding Staff-Applicant meetings anii permit representatives -

of the Intervenor to attend as observers. Certain issues remain in need of clarification in these regards and they will be pursued in subsequent sessions. ' Staff agreed to search its files for past correspondence Intervenor may not have been served and to' update: its service list. '

Physical Security Matters Intervence has, in several recent discovery conferences with Applicant and in the November 24 conference with Staff, attempted to put on the agenda certain matters regarding the physical security contention and the procedures for d=11y with it at hearing that might result in full discovery, deferred at present by Board Order, not being necessary regarding the sensitive information involved. Both parties expressed willingness to discuss the matters fttrther, but time did not permit, and the issue has been put off to future conferences. Staff in particular indicated it wished to cc:nsult with the particular Staff representatives l involved prior to further discussion.

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Intervencr might be willing to forgorcertain of its rights to i access to information about the physical security plan, both during l discovery and perhaps even at hearing, if Intervonor's ability to i present its case on the security contention were not significantly reduced in the process. Intervenor does not have a clear idea at this time precisely how that could be accomplished, but it is Intervenor's intent to provide Staff and Applicant an opportunity to discuss proposals in this regard. This presupposes an interest on the part of Applicant i and Staff in restricting Intervonor's access to the security information, interest

which any or any not exist. f Prior to ==kimr motions to the Board regarding the lifting of the deferred status of discovery regarding security, Intervonor is attempting to seek agreement among the parties that could reduce or even conceivably eliminate the necessity of Intervenor's access to proprietary security information. We will keep the Board apprised of developannts thereto.

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Application Amendments One final natter that any affect scheduling is that of possible mMification of the Application. What int,arvenor_knows of the matter is reported in what follows.

At several of the past discovery conferences with Applicant, Mr. Cormier has indicated an interest in discussing with Intervenor possible withdrawal or modification of contentions. He has indicated that this l possible action might be considered in light of possible mMifications intended to be ande to the Application. Intervenor expressed willimmes's to discuss the matter, but indicated a, need to see the actual ===Maants. ,

Mr. Carater indicated it was his tentative intention to propose the amendments all at one time, inclMing an ===Med emergency plan, and that

- he did not, as last we tahi, know when those amendments would formally be made. The matter was left there-a willimmess to discuss both mMification of Application and contentions, but no timetable for the amaMaants to be introducted.

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The matter was discussed briefly with Staff on November 24. Intervenor indicated its concern that amended Application aight necessitate amended contentions, which could significantly delay the proceeding. . Staff indicated that the modifications Applicant has indicated to date, with the exception of the Emergency Plan, would not alter the matters in controversy significantly nor the i '

thrust of the contentions and that q$ best some minor language modification in a few contention subparts might be necessitated where the Application section to which they refer has been changed. Staff indicated it did not anticipate significant delays resulting in that regard, particularly as it has viewed the contention subparts as bases rather than part of the main contention anyway.

Thus, it would appear, at this point at least, that possible amendment of the Application should not cause.'significant delay. Withdrawal of contentions, if any, actually mooted by Application amendment can be done rapidly; and modification.of contention subparts altered slightly by Application changes i should not be significant. Consideration of the emergency plan contention, j however, is likely to be affected hy the~ submission of a new plan by the Applicant, whenever that occurs. , _

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i For the information of the Board, please be advised that by a6reement of the parties the discovery conferences have been* taped to assist in recall of agreements reached.

The Board will be kept informed of developments in the continuing

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efforts to resolve the remaining disputes, s

He ec s ted,

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Daniel Hirsch President C010ETTEE TO BRIDGE THE GAP Intervenor cc service list e

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