ML20042A383

Statement of Position Re Discovery Matters Upon Which No Agreement Can Be Reached,Per ASLB 820211 Prehearing Conference Order.Certificate of Svc Encl

ML20042A383
Person / Time
Site:	Clinch River
Issue date:	03/19/1982
From:	Finamore B, Weiss E HARMON & WEISS, National Resources Defense Council, Sierra Club
To:
References
NUDOCS 8203230376
Download: ML20042A383 (12)

Text

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CX K,,ETip UNITED STATES OF AMERICA

'02 i'/? 22 f"l);jj NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Marshall E. Miller, Chairman y h4']j Gustave A.

Linenberger, Jr.

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Docket No. 50 W' UNITED STATES DEPARTMENT OF ENERGY

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PRGIECT MANAGEMENT CORPORATION

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TENNESSEE VALLEY AUTIIORITY

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(Clinch River Breeder Reactor Plant)

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INTERVENORS NATURAL RESOURCES DEFENSE COUNCIL, INC. AND THE SIERRA CLUB STATEMENT OF POSITION REGARDING DISCOVERY MATTERS In accordance with the Board's Prehearing Conference Order of February ll, 1982, Intervenors, Natural Resources Defense Council, Inc. and the Sierra Club, hereby submit their Statement of Position regarding discovery matters upon which no agreement among the parties can be reached.

On March 1, 1982, Intervenors presented Staff and I

Applicants with two documents entitled, "New Information Relevant to Intervenors' Contentions" (earlier submitted to the Board as " Appendix One to Intervenors' Prehearing Conference

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S ta temen t, " dated February 8, 1982), and " Proposed Areas of 8203230376 820319 PDR ADOCK 05000537 O

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2 Discovery for New Contentions."

These two documents describe principal areas in which Intervenors propose to conduct additional discovery.3/

on March 15, 1982, and March 18, 1982, Intervenors received telephone responses to these documents from Applicants and Staf f, r esp 9ctively.

Intervenors understand that written responses vill be filed with the Board today by Applicants and Staff.

All parties appear to be in agreement that any relevant discovery within the scope of admitted contentions and based on new inf ormation is admissible.

In addition, Staff has no objections to any general areas of discovery proposed by Intervenors, but reserves the right to object to specific discovery requests where appropriate.

Intervenors also reserve the right to make any further relevant discovery requests within the scope of admitted contentions in accordance with the Board's Prehearing Conference Order of February ll, 1982 and applicable NRC discovery rules.

The parties are still in disagreement regarding the appropriate scope and timing of certain discovery requests.

l This Statement of Position will address these areas of i

l disagreement, and demonstrate, contrary to the apparent position of Applicants and Staf f, that:

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These documents were filed with the Board on March 12, 1982.

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1.

discovery on new contentions should not be delayed until such contentions are admitted; 2.

discovery on contentions 18, 19, 21, and 23 should not be delayed until af ter the LWA hearing (s);

3.

discovery on old contentions should not be delayed until the earlier discovery answers are updated; 4.

discovery on already admitted contenticas should not be limited to " changes in the information base;" and 5.

the Board's order that current discovery be limited to two " rounds" does not contemplate that all previous discovery be considered the first "round."

1.

DISCOVERY ON NEW CONTENTIONS SHOULD NOT BE DELAYED UNTIL SUCH CONTENTIONS ARE ADMITTED.

Applicants appear to take the position that all discovery on new Intervenor contentions should be delayed until such contentions are admitted.

The Board, however, has explicitly stated that it wishes to expedite the hearing process.

Intervenors contend that the best way to expedite the proceeding is to begin discovery immediately.

This is the procedure that was followed by the Board when the CRBR proceedings began in 1975, and there is no reason to deviate from that procedure today.

Intervenors have already filed their Sixteenth Set of Interrogatories to Applicants, Twenty-Second Set of Interrogatories to Staf f, Ninth Request to

4 Applicants for Admissions, Ninth Request to Staff for Admissions, Fifth Request to Applicants for Production of Documents, and First Request to Staff for Production of Documents.

2.

DISCOVERY ON CONTENTIONS 18, 19, 21, AND 23 SHOULD NOT BE DELAYED UNTIL AFTER THE LWA HEARING (S).

Applicants appear to take the position that discovery on Contentions 18, 19, 21, and 23 should be delayed until af ter the LWA hearing (s) are completed.

These contentions relate to the adequacy of Applicants' quality assurance (iOA), emergency planning (EP), DBA categorization, and equipment qualification programs.

At the recent Prehearing Conference held in Oak Ridge, the Board made it clear that, at least regarding the QA and EP programs, it would be scrutinizing such programs caref ully at the LWA level in order to make threshold decisions regarding their adequacy.

See Transcript of Prehearing Conference, February 9-10, 1982, pp. 1133-1140.

Intervenors believe that threshold decisions regarding all four contentions should be made at the LWA level in the context of the NEPA and site suitability reviews.

To allow such decisionmaking and to expedite the hearing process, Intervenors believe that full discovery on these contentions should be permitted at this time.

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5 3.

DISCOVERY ON OLD CONTENTIONS SHOULD NOT BE DELAYED UNTIL THE EARLIER DISCOVERY ANSWERS ARE UPDATED.

Applicants appear to contend that some or all discovery on admitted contentions should be delayed until updated answers to earlier discovery requests are submitted on April 30, 1982.

Applicants' position would effectively prohibit Intervenors from conducting second round ( f ollo w-up) discovery on issues related to admitted contentions where substantial changes have occurred ince April, 1977.

Intervenors believe that the Board specifically rejected this approach at the February 9-10,

1982, Prehearing Conference in favor of an expedited discovery process.

4.

DISCOVERY ON ALREADY ADMITTED CONTENTIONS SHOULD NOT BE LIMITED TO " CHANGES IN THE INFORMATION BASE."

Applicants appear to argue that Intervenors' discovery requests should be " confined to changes in the information base."

Intervenors will of course make every effort to avoid duplication of earlier discovery requests.

Yet Applicants' proposed limitation on Intervenors' activity is unworkable, counterproductive, and unfair.

To begin with, it is abundantly clear to all that during the past five years there have been substantial changes in the CRBR design, the applicable NRC regulations and policy, and available data regarding reactor safety and environmental impacts.

As Intervenors have

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6 repeatedly noted, these changes affect virtually every aspect of Staf f and Intervenors' review of the CRBR.

Applicants' proposal that discovery requests be limited to " changes in the information base" would only trigger endless argument over whether each particular discovery request is in fact related to new information.

Such esoteric arguments would serve no purpose other than to delay and clutter up the hearing process.

Second, Applicants' proposal would contravene a major purpose of prehearing discovey, which is to allow parties to develop arguments and sharpen areas of dispute.

Applicants would apparently permit Intervenors only to inquire whether, for example, a particular scientific report issued since 1977 1

has affected the conclusions of Applicants or Staf f.

Applicants' prcposal would prevent Intervenors from pursuing broader new areas of discovery based on insights gained from new analysis as well as the passage of time.

This approach would seriously hamstring Intervenors' ability to develop and sharpen arguments that are relevant today, rather than those considered important five years ago.

As a result, the effectiveness of Intervenors' participation and the discovery process itself would be hampered substantially.

Th ird, this proposed limitation on Intervenors' activity is in no way consistent with the freedom of action granted other parties to this proceeding.

Applicants have at no time proposed that any restrictions be placed on the scope of

7 Staff's numerous " Requests for Information" from Applicants, nor on the scope of discussions at CRBR Review meetings held between Applicants and Staf f.2/

Nor, of course, have Applicants been restricted as to the number of times they may amend the CRBR design and their PSAR, ER and other safety analyses considered in the proceeding.3/

Intervenors therefore submit that discovery should be permitted on all contentions with care taken not to duplicate earlier requests, in accordance with the Board's Prehearing Conference Order of February 11, 1982, and other applicable NRC discovery rules.

2/

Applicants do maintain, however, that Intervenors should not be allowed to participate actively or ask any questions at such meetings, despite the Board's directive that parties cooperate and exchange information informally to the greatest extent possible.

3/

The only possible argument Applicants could advance f or limiting Intervenors' discovery rights is that discovery had in f act been closed before the CRBR proceeding was suspended on April 23, 1977.

Intervenors contend that this argument is ir relevan t, given the numerous changes that have occured since that time.

During a special meeting with counsel held on March 21, 1977, Chairman Miller explicitly lef t open the possibility that further discovery might take place.

Cec Transcript of Special Meeting with Counsel, March 21, 1977, pp. 779, 7 83.

8 5.

THE BOARD'S ORDER THAT CURRENT DISCOVERY BE LIMITED TO TWO

" ROUNDS" DOES NOT CONTEMPLATE THAT ALL PREVIOUS DISCOVERY BE CONSIDERED THE FIRST "ROUND."

Staff appears to take the position that under the Board's Order confining discovery to two " rounds," all previous discovery should be considered as the first "round."

Intervenors do not believe the Board contemplated such a narrow reading of its Order.

Intervenors believe that under the Board's Order, as long as all discovery is completed prior to June 18, 1982, all parties are entitled to one round of new questions and then one round of follow-up questions.

This flexible form of discovery, without artificial constraints, is the f airest and most efficient method for enabling all parties to develop their arguments and compile a record suitable for Board review.

In contrast, the crabbed interpretation put f orward by Staf f, with its artificial deadlines, is inconsistent with the Board's objectives of expedited discovery leading to a f ull airing of issues at the LWA hearing stage, and, Intervenors submit, should be rejected by the Board.

l Intervenors will continue to meet with all parties in order to attempt informal resolution of any further disagreements I

concerning discovery as may arise.

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9 Respectfully submitted, 64 #&;,/4 AL4 %)

Ellyf1 R. Weiss

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HARMON & WEISS 1725 Eye Street, N.W.

Washington, D.C.

20006 (202) 833-9070 r-L-Barbara A. Finamore S. Jacob Scherr Natural Resources Defense Council, Inc.

1725 Eye Street, N.W.

Washington, D.C 20006 (202) 223-8210 Attorneys for Intervenors Natural Resources Defense Council, Inc.

and tne Sierra Club Dated:

March 19, 1982 Washington, D.C.

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CERTIFICATE OF SERVICE I hereby certify that a copy of "INTERVENORS NATURAL RESOURCES DEFENSE COUNCIL, INC. AND THE SIERRA CLUB STATEMENT OF POSITION REGARDING DISCOVERY MATTERS" was served this 19th day of March 1982 on the f ollowing:

Marshall E. Miller, Esquire Chairman Atomic Saf ety & Licensing Board U.S.

Nuclear Regulatory Commission 4350 East West Highway Bethesda, Maryland 20814 Mr. Gustave A.

Linenberger Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 4350 East West Highway Bethesda, Maryland 20814 Daniel Swanson, Esquire Stuart Treby, Esquire Bradley W.

Jones, Esquire Of fice Of Executive Legal Director U.S.

Nuclear Regulatory Commission Maryland National Bank Building 7735 Old Georgetown Road Bethesda, Maryland 20814 Atomic Saf ety & Licensing Appeal Board U.S.

Nuclear Regulatory Commission Washington, D.C.

20555 Atomic Saf ety & Licensing Board Panel i

U.S.

Nuclear Regulatory Commission l

Wa s hing t on,

D.C.

20555 l

Docketing & Service Section Office of the Secretary U.S.

Nuclear Regulatory Commission Washington, D.C.

20555 (3 copies) t I

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Tenney Johnson, Esg : ire Leon Silverstrom, Esquire Warren E.

B e rg oholz, Jr.,

Esquire Michael D. Oldak, Esquire L.

Dow Davis, Esquire Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W.

Washington, D.C.

20585 George L.

Edgar, Esquire Irvin N.

Shapell, Esquire Thomas A.

Sc hmu tz, Esquire Gregg A.

Day, Esquire Frank K.

Peterson, Esquire Morgan, Lewis & Bockius 1800 M Street, N.W.

Wa s hi ng t on,

D.C.

20036 Dr. Cadet II. Hand, Jr.

Director Bodega Marine Laboratory University of California P.O.

Box 247 Bodega Bay, Calif ornia 94923 Herbert S.

Sang er, Jr., Esquire Lewis E. Wallace, Esquire James F. Bu rg e r, Esquire W. Walker LaRoche, Esquire Edwa rd J.

Vigluicci Office of the General Counsel Tennessee Valley Authority 400 Commerce Avenue Kn oxville, Tennessee 37902 William B.

Hubbard, Esquire Assistant Attorney General State of Tennessee Office of the Attorney General 422 Supreme Court Building Nashville, Tennessee 37219 Lawson McGhee Public Library 500 West Church Street Knoxville, Tennessee 37902 William E.

Lantrip, Esquire City Attorney Municipal Building P.O.

Box 1 Oak Ridge, Tennessee 37830

. Oak Ridge Public Library Civic Center Oak Ridge, Tennessee 37820 Mr. Joe H.

Walker 401 Roane Street Harriman, Tennessee 37748 Commissioner James Cotham Tennessee Department of Economic and Community Development Andrew Jackson Building, Suite 1007 Nashville, Tennessee 32219

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A M h /7. f, 7

Barbara A.

Finamore

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