ML20042C556
| ML20042C556 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 03/23/1982 |
| From: | Cormier W CALIFORNIA, UNIV. OF, LOS ANGELES, CA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8203310517 | |
| Download: ML20042C556 (19) | |
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c,:m.nm a 4' UNITED STATES OF AMERICA ; 4 NUCLEAR REGULATORY COMMISSION 'S 'F 5 la 6 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 7
8 In the Matter of ) Doc.:et No. 50-142 9 (Proposed Renewal of Facility THE REGEtTS OF THE UNIVERSITY )ILicense Number R-71)
OF CALIFORNIA 10 ) March 23, 1982
)
II (UCLA Research Reactor) )
12 13 i 14 MOTION FOR A PROTECTIVE ORDER 15 j 16 1.
17 10 DONALD L. REIDHAAR GLENN R. WOODS 10 CHRISTINE HELWICK 590 University Hall 20 2200 University Avenue Berkeley, California 94720 g Telephone: (415) 642-2822 22 Attorneys for Applicant 23 THE REGENTS OF THE UNIVERSITY OF CEIFORNIA 24 25 26 27 94 28 60 l i L
82O3310517 82O323
{DRADOCK V 05000142 PDR i
- oi I. THE MOTION I Pursuant to 10 C.F.R. Sec. 2.740 of the Commission's 2lrulesofpractice, Applicant, THE REGENTS OF THE UNIVERSITY OF 3 ! CALIFORNIA, moves the Atomic Safety and Licensing Board (Board)
I for an order protecting Applicant from the scope and manner of 5 discovery proposed by Intervenor, Committee to Bridge the Gap, 6 in certain of Intervenor's recently sWomitted discovery requests, 7
as discussed herein below. The particular form of the order i
8
, jrequested appears as an attachment hereto.
9]
! II. INTRODUCTION 10 i
11 ! Applicant submitted its " Current Status Report on 12 Discovery Proceedings" in a document dated March 15, 1982. That 13 report described discovery that has occurred between the parties i
14 to date and also mentioned the Board's orders of August 24th and 15 o September 4 th, 1981 which directed Applicant and Intervenor, 16 inter alia," to meet to consider agreement on any matter arising 17 in dispute between them" before filing discovery motions with 18 the Board.
19 '
As Applicant has previously remarked to the Board, 20
, discovery in this proceeding has imposed an extremely oppressive, 21 l expensive and otherwise burdensome work effort on Applicant's 22 staff. Applicant recently reported that it has responded and, 23 in many instances, has responded several times to 3429 questions 24 and subparts of question comprising Intervenor's interrogatories 25 to Applicant. Applicant has also produced for Intervenor's 26 examination a total of about 40,000 pages of documents and re-27 cords at numerous document examination sessions of about seventy' 28 l(70) hours in total duration arranged by Applicant.
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1 At Intervenor's request, Applicant has photocopied a large 2 0 number of the records and documents produced. Applicant has also 3 !provided Intervenor a five-hour tour of the reactor facility d
4[ permitting Intervenor to inspect, test, and photograph the 5 facility and its equipment.
h 66 Despite Applicant's considerable efforts certain matters 7
remain unresolved and, as both Intervenor and Applicant have 8,i 9[l reported, efforts to resolve these matteca c.ppear to be exhausted.
l According to the Board's orders of August 24th and September 4th, 10 i 1981, it is appropriate for Applicant to submit its protective s 11
> order request at this time.
12 jl li 13 III. DISCUSSION 14 il
! The general provisions governing discovery in NRC 15 l;
! proceedings are found in 10 C.F.R. Sec. 2.740.
The Commission 16
' rules follow the form of the Federal Rules of Civil Procedure 17 and 10 C.F.R. Sec. 2.740 has its analog in the Federal Rule 26, 18 Pacific Gas & Electric Company, 7 NRC 1038, 1040 (1978); Allied-19 i General Nuclear Services, et al., 5 NRC 489 (1977).
21 I In general, under 10 C.F.R. Sec. 2.740, the scope of 22 discovery extends to "any matter, not privileged, which is 23 relevant to the subject matter involved in the proceeding" and 24 in an operating license proceeding discovery "shall relate only 25 to those matters in controversy which have been identified by l 26 the Commission or the presiding officer in the prehearing order l 27 entered at the conclusion of that prehearing conference."
28 10 C.F.R. Sec. 2.740 (b) . -
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1 ' Although the scope of discovery is construed liberally, 2 the Commission's rules of practice provide that the presiding 3 officer may, upon the motion of a party and for good cause, "make 4 any order which justice requires to protect a party or person 5 I from annoyance, embarrassment, oppression, or undue burden or 6 j expense. " Among other actions , the presiding officer may order:
7 that discovery not be had; that certain matters not be inquired 8 into; or, that the scope of discovery be limited to certain I
9
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l matters. 10 C.F.R. Sec. 2.740 (c) .
10 ;
I j A. Interrogatories 12 , In " Applicant's Follow-up Responses to Intervenor's l
13 ! Set Three and Set Four (Final) Follow-up Interrogatories," dated 14 jNovember9th, 1981, Applicant objected to answering two (2) i 15, interrogatories on security grounds. Intervenor's question i
16 number 24 on page XIII-2 of its interrogatories dated June 10th, 17 1981 (" set three") asked: "How can the interlock system on the 18 3rd floor equipment room be overriden [ sic] ?" This question 19 Purports to be concerned with Contention XII and not the 20! security contention, Contention XX. However, the question l
l 21 concerns an aspect of the security system and Applicant seeks to 22 have the protective order that has been in place for all other 23 security-related matters (per the Board's order of July 1st, 1981).
24 extended to cover this question.
25 Respecting question number 30 on page XII-3 of the same 26 set of interrogatories, during one of the parties' discovery 27 As conferences Intervenor agreed to restate this question.
28 restated, Applicant answered the question on page 2 of its i t n .
4 1.' supplemental responses of March 3rd, 1982. Assuming Intervenor ;
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2; is satisfied with this answer, Applicant withdraws its previously- '
3[ made objection. ,
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- Except for the two (2) questions discussed above, r
5~ f Applicant has answered reasonably each of Intervenor's " final set" 6
0 interrogatories. Supplementary responses to certain of these C :
7 0 interrogatories were submitted on March 3rd, 1982. Altogether so 0
8[ far in this proceeding, Applicant has responded to a clearly q 9 !i pexcessive number of interrogatories.
- Applicant submits that 4 10h !
t I Intervenor has failed to exercise the restraint which the Board, t 11 j icommenting on the "very extensive discovery" which has occurred, !
r 12: 3 :
I,l directed the parties to observe in its orders of July 1st, {
13t i i; August 24th and September 4th, 1981. Applicant seeks protection l U
14 I hfromhavingtorespondtoanyadditionalinterrogatoriesandfrom l 15
'; having to respond further to interrogatories already submitted.
i l
) 16] !
g 3. Production of Documents '
f 18 i-Applicant has objected to producing the October 3rd, 19 1978, minutes of the Radiation Safety Committee (two pages) on t- i 20 security grounds. The minutes discussed a proposal to upgrade ;
21 I the security system for the facility with certain modifications.
22 Inadvertently, a copy of the minutes was made available for i 23 viewing by Intervenor during a document examination session. i
, 24 When Intervenor indicated it wanted a copy of the document, 25 Applicant withdrew the document and stated its objection.
26 Ordinarily, Applicant screens its documents to ensure that 27 objections to production, if any, are made before documents are 28 l presented. However, due largely to the difficulty in thoroughly i
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1 lscreeningthevoluminousamountofmaterialApplicanthasbeen 2 ! producing for Intervenor's examination, this document " slipped 3 through." Applicant seeks to include this document within the 4 protective order covering Contention XX and other security
- 5 i matters.
6 7 C. Production of Photographs 8;
In October, 1981, Intervenor requested that it be 9 !
permitted to inspect, test and photograph Applicant's facility 10
{andequipment. In accordance with the standards of 10 C.F.R. 11 lSec. 2.740, Applicant sought clarification of Intervenor's 12 -
Orequest. Respecting the photographs, Applicant was concerned 13Y that the release of any particular photograph, or the indiscrimin-14e .
! ate release of a large number of photographs representing, in 15
[ effect, a photographic map of the facility, could compromise 16 h h Applicant's security. Because Intervenor was unable to specify 17 I what and how many photographs it intended to take, Applicant 18 i
l agreed to let Intervenor take whatever photographs it wished 19 l
! provided that Intervenor agree that the release of particular 20 l l photographs would be the subject of future discuss!.ons, Applicant 21 to take possession of the undeveloped film at the end of the 22 l inspection for processing and until agreement on release of the 23 l 24 :[. photographs was reached.
!)
25 The inspection and photographing took place on 26 3 November 17th, 1981. Intervenor took approximately 215 i
27 l photographs of the facility and its equipment. Applicant and i
28 f Intervenor . agreed to the conditions for the release of all but p--
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1! twenty-one (21) (or approximately 194) of the photographs during 2 a meeting held February 9th, 1982. As also agreed, Applicant 3 prepared a written stipulation, as to the agreed conditions, 4 3which was to be signed by Intervenor. A copy of that stipulation, l:
- 5. which Intervenor has not yet signed, is attached hereto as Exhibit n
6 "A". Once the stipulation is signed, the approximately 194 7 photographs will be released to Intervenor.
8 9h Applicant objects to the release of each of the h
10" remaining twenty-one (21) photographs on relevancy and security
\
11 Jgrounds. One of these photographs is of a car " bumper sticker" 12! af fixed to a wall of the facility containing an unflattering h
13j' reference to California Governor Jerry Brown and the eradication i'
H 14 j. of " fruit flies. " This photograph is clearly not relevant to any i'
15 F factual matter in dispute. Each of the remaining photographs i
16 jhas captured, perhaps by inadvertence, certain features of the 17 ' physical security system of the facility and is objected to on 18 i security grounds. ' Release of any of these photographs would 19 needlessly compromise Applicant's physical security system.
20 jj Moreover, although Intervenor has not revealed nor g
22 has applicant, despite repected attempts, been able to discovery the particular form or substance of Intervenor's intended 23q evidentiary demonstrations in this proceeding, it appears to 24 h '
25, Applicant that none of the photographs which Applicant seeks to ,
26 protect contains information relevant to any disputed factual {
27 matter at issue or is otherwise needed for- Intervenor's
' presentation. Accordingly, release of each of these photographs i 28 I
is also objected to on relevancy-grounds.
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1 j! Applicant seeks protection from release of all twenty-i I
2 'one (21) of these photographs. Alternatively, Applicant seeks 3 to include the latter twenty (20) of these photographs within 4- the scope of the protective order covering security matters.
5 lAt the Board's request Applicant will submit the twenty-one i
6 l (21) photographs for the Board's in camera examination.
7 i l D. Inspection of Facility 8
9 Intervenor made two (2) requests, dated September 3rd a
10 and llth, 1981, to inspect, test, and photograph Applicant's i
11 lfacilityandequipment. Because the requests were unclear and i
12 ;apparently unlimited in scope, Applicant objected to the requests l
13[ in Pleadings dated October 9th and 19th, 1981. In subsequent b
14!l discussions Intervenor was able to clarify much of its request 15
'and Applicant agreed to an inspection which took place on 16 ; November 17th,1981. Applicant reported the details of the 17 inspection to the Board in a letter dated November 23rd, 1981.
i 18 As Applicant there noted, a member of the NRC staff was present 19 ito witness the inspection.
20 .
l During the inspection, Applicant acceded to Intervenor's 21 request to remove one of the control console back panels so 22
" Intervenor could view the electronic equipment within. Applicant 23 refused to perform the disassembly of the adjacent back panels 24 lwhen requested by Intervenor. At another point during the 25 inspection, to avoid undue disruption to certain of Applicant's 26 staff, Applicant refused to permit Intervenor's representatives 27 to wander into.the fusion physics "Tokomak" laboratory area which
[is adjacent but unrelated to the' Nuclear Energy Laboratory.
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1 ;Intervenor threatened to take both these matters to the Board.
2 h Applicant submits that the five (5) hour inspection it provided n
3[was a most fair and comprehensive accommodation of Intervenor's 4: inspection requests. To subject Applicant's staff to the i
5' disruption of any additional inspection, te* ting or photographing 6!;would impose an unreasonable and unnecessary burden on Applicant.
!i 7}Applicantseeksprotectionfromhavingtoprovideanyfurther 8 inspection, testing or photographing of any of its facilities or 9 Jequipment.
li 10f E. Other Matters 11 12: Applicant has complied in good faith with all of i
13! Intervenor's discovery requests, except for certain outstanding f
14l! interrogatories related to the emergency response plan which i
15 Applicant will answer soon after the plan is submitted. I li 16 d Applicant seeks protection from any further discovery in this F
17 b Proceeding except that which may be directed by the Board upon U
18 a party's " good cause" showing.
1 19 ;
h IV. CONCLUSION 20 !j Acting reasonably and in good faith, Applicant has 1
22 l a mm dated nearly all of Intervenor's discovery requests.
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I 1jApplicantseeksprotectionfromcertainspecificoutstanding p
2 i ' discovery matters as well as from any further discovery. A ll 3!! proposed form of order- has been attached, ll 4 f;
't 5I Dated: March 23, 1982.
l 6.!
7 DONALD L. REIDHAAR GLENN R. WOODS 8; CHRISTINE HELWICK h
9 i!
10 By b /
I William H. Cormier 11 ! UCLA Representative 12:
!' THE REGENTS OF THE UNIVERSITY 13l' OF CALIFORNIA I!
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l 1I UNITED STATES OF AMERICA
, . NUCLEAR REGULATORY COMMISSION 2, l 0 ATOMIC SAFETY AND LICENSING BOARD !
Before Administrative Judges:
4' John H. Frye, III, Chairman i; Dr. Emmoth A. Luebke 5 Dr. Oscar H. Paris 6h il 7 :,
, In the Matter of )
)
8[j; THE REGENTS OF THE UNIVERSITY ll
)
Docket No. 50-142
)
9[ OF CALIFORNIA
)
(Proposed Renewal of Facility
)
License Number R-71) 10
!(UCLA Research Reactor )
11 2[ ORDER RELATIVE TO APPLICANT'S 13 h MOTION FOR A PROTECTIVE ORDER h
14 jl h In response to Applicant's request for a protective 15 '
16 g
l argume'nts advanced in support of Applicant's ,motion we grant h
18; Applicant's request as follows.
ORERED Ms day of , 1981, 19 i
20 J That the protection which we granted Applicant for 21 security matters in our order of July 1, 1981, be extended to 22 include protection from answering question number 24 on page XII-23 2 of Intervenor's June 10th, 1981, interrogations, protection 24 lfromproducingtheOctober3rd, 1978 minutes of the Radiation 25 Safety Committee and protection from releasing the twenty (20) 26 photographs taken during the November 17th, 1981, facility inspec-27
, tion relating'to security matters; and 28 l
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1 That, in consideration of Applicant's substantial 2 ' compliance with the very extensive discovery which has occurred 3 to date, there will be no further discovery on Applicant by i
4 Intervenor, except that we may permit a limited amount of 5 j additional discovery, related solely to the amendments to its 1
6 application which Applicant has stated it intends to make, upon i
7 l Intervenor's " good cause" showing for the additional discovery.
8 9[
FOR THE ATOMIC SAFETY AND 10 , . LICENSING BOARD 11 11 12; l
13 hl John H. Frye, III, Chairman 14 l[ Administrative Judge 151 16 17
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18 r
19 20 !
21 9 22 i
234 24 ] -
t 25 26 27 l
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- 6 EXHIBIT A t
2 3
4 5
UNITED STATES OF AMERICA 6 NUCLEAR REGULATORY COMMISSION 7 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 8
9 In the Matter of ) Docket No. 50el42
) (Proposed Renewal of 10 THE REGENTS OF THE UNIVERSITY ) Facility License OF CALIFORNIA ) Number R-71) 11 )
(UCLA Research Reactor) ) February 18, 1982 12 )
13 14 15 STIPULATION AS TO RELEASE OF PHOTOGRAPHS 16 On November 17, 1981, during a testing and 17 ' inspection tour of the UCLA Nuclear Energy Laboratory (NEL) 18 facility by the Committee to Bridge the Gap (CBG), the j 19 University, in accordance with its prior agreement with CBG, 20 permitted CBG representatives to take approximately 215 21 photographs of the laboratory facility and its equipment.
22 Because of the University's concern that the release of a ,
23 large number of photograp? ,f the NEL facility would risk 24 compromising the securtty of the facility, the University 25 permitted the photographing to occur only on condition that 26 the University would take custody of the undeveloped film at
I the conclusion of the inspection and that the matter of 2
release of any or all of the developed photographs would be
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3 the subject of further discussions of the parties. As a 4
result of diecussions which occurred principally on 5 February 9, 1982, CBG and the University have agreed to 6 stipulate as follows:
7 8 1. The University agrees to release to CBG the 9 color negatives for all but twenty-one (21) of the 215 10 photographs taken by CBG on November 17, 1981. The University 11 objects to release of the twenty-one (21) photographs on 12 security and relevancy grounds and those twenty-one (21) 13 photographs are in no way part of the subject matter of this 14 stipulation.
15 16 2. CBG agrees that the negatives of the 194 17
' photographs which the University agrees to release and any 18 prints made from those negatives, or any duplicates, 19 reproductions, or copies of the prints or negatives 20 (hereinafter, the " photographs") will be used only by CBG, its 21 officers and technical consultants, in the preparation of 22 evidence for the hearing in the above-captioned proceeding, or 23 in any motions or pleadings incident thereto, and that CBG 24 will exercise control over each and every one of the 25 photographs sufficient to insure that the photographs are not 26 viewed, examined, copied in any way, possessed nor otherwise 2
I used by any governmental agency other than the NRC, any 2 representatives of any of the various news media, or any other 3 persons not a party to this proceeding. CBG acknowledges that 4 all right, title, and interest in the phctegraphs rests in the 5 University at all times and that the University has granted 6 CBG conditional use of the photographs for the sole purpose of 7 enabling CBG to fully present its case before the Atomic 8 Safety and Licensing Board ("ASLB") in the pending proceeding 9 and CBG's sole purpose in acquiring the photographs is to be 10 able to fully presen't its case before the ASLB.
11 12 3. CBG agrees to return to the University each and.
13 every such photograph (which incledes all negatives, prints, 14 duplicates and reproductions) in its possession or control 15 within seven (7) days after the conclusion of the hearing in 16 this matter or within seven (7) days after receiving the 17 determination of the ASLB that the entire proceedings be 18 dismissed, notwithstanding that, at the conclusion of the 19 hearing or upon the determination that the proceedings be 20 dismissed matters may still be pending, decisions may not yet 21 be final, or appeals may be taken. Upon the return of the 22 photographs to the University, the University agrees to 23 safeguard the photographs and, subject to reasonable 24 conditions, to again ma_ke-them available to CBG in the event 25 they are required for any evidentiary proceedings that occur 26 subsequent to the initial hearing in this matter. -
3 i
i 1 4. CBG agrees that in the event that it uses any 2 or all of the photographs in support of any of its written 3 pleadings or testimony in this proceeding, none of the 4 photographs to be so used will be submitted as part of such 5 written pleadings or testimony but instead all such 6 photographs will be submitted in a separately captioned 7 document dencminated " Photographic Exhibits Submitted in 8 Support of . . . (title of pleading)", or some equivalent 9 description, which document will be referred to as the 10 " exhibits document." Each " exhibits document" will be served 11 together with the pleading to which it pertains only on the 12 parties to the proceeding and the ASLB; as to all other 13 persons or entities, CBG agrees to exercise the control over 14 the photographs contained in each such " exhibits document" 15 required by paragraph 2, above, until the University has had 16 at least thirty (30) days to determine whether to apply to 17 exclude those photographs from public disclosure. The thirty 18 (30) day waiting period shall al.so apply to service of any 19 " exhibits document" on the Chief of the Docketing and Service 20 Section of the NRC. In the event the University does make l
21 application to exclude from public disclosure photographs !
22 contained in an " exhibits document" within the thirty (30) day 23 period, CBG will continue to exercise the control required by 24 paragraph 2, above, until such application is finally 25 determined by the NRC or the ASLB and CBG agrees to exercise 26 4
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I the same control thereafter consistent with the determination 2 of the NRC or the ASLB. .
3 4 5. University agrees that in executing this 5 stipulation CBG has not waived any rights it may have to apply 6 to the ASLB to have any or all of the conditions of this 7 stipulation removed or to argue for public disclosure in the 8 event that the University seeks an exemption or order which 9 would prevent public disclosure of any or all of the 10 photographs. CBG agrees to abide by each of the terms of this 11 stipulation unless and until the ASLB modifies or rescinds the 12 term, in which case CBG will continue to abide by all 13 remaining terms and will-abide by"the modified or rescinded 14 term as modified or rescinded.
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1 ,6. Both CBG and the University understand that in 2 tuo event that any term of this stipulation is breached by one 3 of the parties, application may be made by the other party to 4 the ASLB for appropriate orders or sanctions.
S 6 ACKNOWLEDGED AND ACCEPTED:
7 8 COMMITTEE TO BRIDGE THE GAP THE REGENTS OF THE UNIVERSITY OF CALIFORNIA 9
10 Daniel Hirsch, President
[7 M Christine Helwick, Attorney c
fE861 Add 'IR . 198 3
, 12 Date Date 13 -
14 Dorothy Thompson, Attorney 15 Date 16 17 18 19 20 21 22 23 24 25 26 , , ,
6 e
1 UNITED STATES OF AMERICA NUCLEAR REGULATOltY COMMISSION 2
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 3
In the Matter of )
4
) Docket No. 50-142 1 5
THE REGENTS OF THE UNIVERSITY ) (Proposed Renewal of Facility' OF CALIFORNIA ) License Number R-71)
)
6 (UCLA Research Reactor) )
7 l
8 CERTIFICATE OF SERVICE 9
I hereby certify that copies of the attached:
10 MOTION FOR A PROTECTIVE ORDER 11 in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, 12 postage prepaid, addressed as indicated, on this date: March 24, 1982 ,
13 .
14 John H. Frye, III, Chairman Mr. Daniel Hirsch Administrative Judge Cte. to Bridge the Gap 15 ATOMIC SAFETY AND LICENSING BOARD 1637 Butler Avenue, #203 U.S. Nuclear Regulatory Commission Los Angeles, Calif. 90025 16 Washington, D.C. 20555 Mr. John Bay, Esq.
17 Dr. Emmoth A. Luebke 2261 Columbia Street Administrative Judge Palo Alto, Calif. 94306 18 ATOMIC SAFETY AND LICENSING BOARD U.S. Nuclear Regulatory Commission 19 Washington, D.C. 20555 _
20 Dr. Oscar H. Paris Administrative Judge 21 ATOMIC SAFETY AND LICENSING BOARD *'
U.S. Nuclear Regulatory Commission 22 Mashington, D.C. 20555 23 Counsel for the NRC Staff OFFICE OF THE EXECUTIVE LEGAL DIRECTOR 24 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 .
Chief, Docketing and Service Section 26 OFFICE OF THE SECRETARY U.S. Nuclear Regulatory Commission 27 Washington, D.C. 20555 28
, WILLIAR-H. CORMIER UCLA Representative THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
, , , ,