ML20052D102

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Memorandum of Points & Authorities Supporting Motion for Protective Order.Discovery Requests Seek Info Outside Scope of Proceeding.Certificate of Svc Encl
ML20052D102
Person / Time
Site: Clinch River
Issue date: 05/04/1982
From: Edgar G, Silverstrom L
ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP.
To:
NRC COMMISSION (OCM)
References
NUDOCS 8205060278
Download: ML20052D102 (14)
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  • iq pu -p p. 9 May 4, 1982 UNITED STATES OF AMERICA @$Ll'no 9 NUCLEAR REGULATORY COMMISSION d/

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In the Matter of ) -

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UNITED STATES DEPARTMENT OF ENERGY ) 4 t .: '//

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PROJECT MANAGEMENT CORPORATION ) Docket No. $0 437 _. g ;Y

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TENNESSEE VALLEY AUTHORITY )

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(Clinch River Breeder Reactor) )

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MEMORANDUM OF POINTS AND AUTHORITIES .

IN SUPPORT OF MOTION FOR A PROTECTIVE ORDER Pursuant to the Board's Order of April 22, 1982 and the procedural rules established in Comanche Peak,-1 / the Department of Energy and the Project Management Corporation acting for themselves and on behalf of the Tennessee Valley Authority, hereby submit their Memorandum of Points and Authorities in Support of Motion for a Protective Order.

Background

On April 20, 1982, a conference with counsel was held in which the Board considered various objections to Intervenors' Eighteenth and Twenty-Fourth Sets of Interroga-tories to the Applicants and NRC Staff respectively. In y T

-1/ Texas Utilities Generating Company (Comanche Peak j [

Electric Station, Units 1 and 2), LBP-81-22, 14 NRC l 150, 155-157 (1981).

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reviewing these discovery requests , the Board noted generally that the number was excessive , that the " scope and 2/

sweep is entirely too broad"- and that the parties should limit their requests to essential areas. In particular , the Board stated, based on a very limited review, that Inter-venors' discovery requests were obj ectionable in at least four respects:

1. Premature discovery directed at matters to be covered in the Staff milestone documents ;
2. Discovery requests which seek information in far greater detail than that required at the LWA stage of this proceed ing ;
3. Discovery directed at Contentions 1, 2, and 3 which may not be relevant at the LWA stage; and
4. Discovery requests relating to contentions which the Board has already ruled out or deferred until the con-struction permit proceed ing.

Based upon its general concern with the excessive nature of Intervenors ' interrogatories to Applicants and Staff, as well as the particular objections noted above, the Board issued a protective order as to all the parties latest sets of discovery requests. The Board also ordered the parties to meet and discuss the discovery requests and attempt to arrive at an amicable resolution.

i l -2/ Transcript at 660. It should be noted that Intervenors'

! 18th and 24th Sets of Interrogatories amounted to over 1600 and 1000 requests to the Applicants and Staff. As a result of discussions with Intervenors, Applicants responded to approximately 375 interrogatories.

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Status of Conference Between Intervenors and Applicants In response to the Board's Order on April 23, 1982, Applicants and Intervenors met to discuss their respective discovery disputes. As a result of that meeting, the Applicants and NRDC have substantially resolved all dis-covery disputes regarding the Applicants' Fourth Set of 3/

Interrogatories to NRDC -- and NRDC's Eighteenth Set of Interrogatories to the Applicants. As to NRDC's Eighteenth Set of Interrogatories to Applicants, NRDC agreed to: (1 )

withdraw Section VI, Nos. 2-9, 11, at p. 22; (2) defer Sec-tion IX at pp. 38-45; and (3) limit Section VIII, pp. 29-38 to subparts a and b (rewording subpart b to request a brief description of the extent to which Applicants have consid-ered the document, event, or program) for item Nos. 8, 9, 10, 11, 16, 17, 22, 24, 36, 37, 39a, 39d, and 42 (ICRP 26 and 30) only. NRDC also agreed to limit Section I, No. 11 at p.10 to certain items in the Gamill/ Caffey letter (I a, b,c,e,j; II a, b, c, d; III a, b; IV c, h, i; V a, b; VI a; 3/

In light of Board rulings on NRDC Contentions 1, 2, and 3, NRDC can defer answers to Interrogatories 2(c),

2 (d ) , 2 (e) , 2 (f) and 3 (e) , while the answer to 2 (b) need not include consideration of Applicants' reli-ability program and the answer to 3(j) need only consider the issue of expected leakage rate for 10 C.F.R. $~100.11a. analysis. Since NRDC is responding to the NRC Staff's Interrogatories 1-9, 2-1, and 2-2, it need not respond to Applicants' overlapping Interrogatories 2(a), 3(a), and 3(b).

VII a, b, c, d; VIII a, b, c; and IX a, b, c, d, f, g, h) .

Applicants agreed to provide a brief description of Appli-cants' position on each item. An answer which states that a given item is not necessary for an LWA decision is sufficient.

In regard to Section VII, Nos. 1-5, NRDC agreed to: (1) eliminate No. 2; (2) eliminate TVA from those organizations whose files must be searched; (3) limit a search of post-April 25, 1977 PMC Board minutes to natters relating to NRDC's contentions; (4) limit the search of PMC files to verification that they duplicate materials in the integrated project office files within the scope of NRDC's requests; and (5) limit Nos. 4 and 5 in time to post-April 25, 1977 and in scope to those documents, not priveleged, which specifically address NRDC's contentions as such. In regard to Section I, Nos. 19-20, NRDC agreed to: (1) accept conditions (2) - (4) above; (2) limit the request to the period January 1,1976 - June '1,1976; and (3) inspect the documents in Oak Ridge. In regard to Section VI, Nos. 23-25, NRDC agreed to: (1) accept conditions (2)-(4) in VII Nos. 1-5 above; (2) limit the request to post-April 25, 1977 (earlier documents located in round 1 might he requested on follow-up); and (3) unless otherwise available at DOE head-quarters, inspect the documents in Oak Ridge. In addition, Item a of the 23-25, was further limited to summary

documents. Item b was withdrawn. Item c was limited to documents generated since January,1982. Item d was revised to refer only to the safety and maintainability project obj ec tives . In item e, the term availability was substi-tuted for reliability. Item f was limited to issues within NRDC Contentions 1, 2, and 3 (environmental risks of accidents and site suitability doses); 5; 6; and installa-tion of equipment to reduce doses (e.g. bottling or not bottling gases) . Item g was limited to general documents and not documents containing detailed design information.

NRDC agreed to apply the limitations of time and scope agreed upon for 24 and 25 to 23. All parties reserved the right to rely upon Board rulings.

Finally, in regard to Section III, certain docu-ments which are literally responsive to the document r 2a .estr in parts 1(b) and 2 contain information which is (1) classi-fied, (2) constitutes safeguards information, and (3) unnec-essary for an LWA decision. In particular, these documents contain detailed analyses of the vulnerabilities in the CRBRP safeguards system. The Applicants proposed to Counsel 1 for NRDC that they identify the documents but defer produc-tion. Instead , Applicants will provide unclassified summaries. Without accepting Applicants position as to scope, and while reserving their rights to seek additional l

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information, Counsel for NRDC, Mr. Greenberg, has indicated NRDC's agreement to accept unclassified summaries as respon-sive answers to the interrogatories in question.

As discussed in more detail below, Applicants were unable to reach agreement on one item.Section V, Requests 8(b) and (c) request informacion on the availability of plutonium fuel from the United Kingdom. Applicants believe that an answer to these requests is obviated by the Board's April 14,1982 Order rejecting NRDC's Contention 17, and sustaining Applicants' Motion for a Protective Order dated March 29,1982. NRDC believes that the matter involves its fuel cycle Contention 6, and the issue of transportation.

Applicants' attempts at compromise by answering 8(a) .

(relating to transportation) were unsuccessful, and accord-ingly, Applicants are forced to file their Motion for a Protective Order and accompanying Memorandum of Points and Authorities.

ARGUMENT Intervenors' Discovery Seeka Information on Matters Which Are Outside the Scope of This Proceeding As the Board observed at the Prehearing Confer-ence, in certain instances, Intervenors, in their Eighteenth Set of Interrogatories, seek information relating to matters or contentions which the Board has already ruled are outside

the scope of this proceeding. Althcugh the Intervenors >

4 agreed to withdraw certain of these interrogatories,-/ the parties were unable to reach agreement on Interrogatory 8,Section V, which provides:

8. If plutonium for the CRBR may be obtained from the United Kingdom,
a. what regulations would govern 5/

transportation of such materials, ~~

b. what requirenents or con-straints, e.g., application of IAEA 1 safeguards, has the United Kingdom indicated must be met in order that such a sale or transfer of pluto-nium could take place, and
c. how much United Kingdom pluto-nium has the U.S. indicated it may wish to obtain to meet US R&D needs.

In submitting this interrogatory purportedly under Contention 6 relating to the CRBR fuel cycle, Intervenors are attempting to circumvent the effects of the Board's April 6,1982 rulings rejecting NRDC's proposed Contention 17 and granting Applicants' April 29, 1982 Motion for a Protective Order. NRDC's proposed Coatention 17 sought to introduce the issue of plutonium fuel availability for the CRBRP, which the Board properly dismissed as a programmatic 4/

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For example, in Section VI, Requests 2-9, 11, Inter-venors sought information regarding the Phenix reactor and the Light Water Breeder.

5/ In an attempt at compromise Applicants agreed to answer 8a.

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issue beyond the purview of these proceedings.-- As a result of that ruling, the Board granted Applicants' April 29, 1982 Motion for a Protective Order-7 / sustaining Applicants' objections that the following discovery requests, among others, sought information regarding the programmatic issue of fuel availability:

, 1. Interrogatory Set 16, Contention 17, No. 7 at 12-13.

7. Please describe any inauiries made since April 23, 1977 by the U.S. to any foreign government, including but not limited to the United Kingdom, regarding the purchase or otherwise obtaining of plutonium from foreign government (s).

For each such inquiry, please indicate:  ;

(a) the date of the inquiry; (b) the party to whon the ine,uiry was i made; I

(c) the amount of plutonium sought; (d) the proposed use for such plutonium; (e) the date and nature of the response; and (f) whether and when such plutonium was or will be provided.

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Tr. 283-84; Board Order Following Conference with Parties (hereinaf te r, Board Order, April 14, 1982),

dated April 14, 1982 at 7-8.

l 1/ Tr 382-3; Board Order, April 14, 1982, at 14.

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2. Admissions Set 9, Contention 17, Nos. 9 and 10, at p. 14.
9. The Department of Energy at this l time cannot assure that adequate cuanti- i ties of plutonium to meet the fuel l requirements of the CRBR can be obtained from foreign sources (e.g., the U.K.).
10. One of DOE's objectives in seeking additional supplies of plutonium from the U.K. during 1981 was to enable DOE to utilize a larger portion of DOE fuel-grade plutonium stocks to meet potential ,

plutonium requirements of the U.S.

nuclear weapons program.

3. Document Request Set 5, Contention 17, No. 2, at p. 4-5.
2. Produce all documents prepared or received by the U.S. government since April 23,1977 relating to inquiries made by the U.S. government to any foreign government, including but not limited to the United Kingdom, regarding the purchase, or otherwise obtaining by the U.S. of plutonium from foreign government (s).

Interrogatories 8 (b) and (c) are indistinguish-able from the three prior requests which the Board has already ruled to be improper. Just as these previous dis-covery requests ask for information regarding the amount of plutonium which might be acquired from the United Kingdom, and any responses by the United Kingdom, interrogatories 8(b) and (c) ask for precisely the same type of information.

Based on this discovery, Applicants can only conclude that Intervenors intend, under the guise of

Contention 6, to raise issues regarding fuel availability for the CRBR. Intervenors apparently would have the Board consider, for example, any United Kingdom regulatory requirements regarding the sale of plutonium as well as the quantity of fuel which might be acquired from the United Kingdom.

Whether the United States Government purchases fuel for the CRBR from the United Kingdom and the condi-tions, if any, imposed on such purchases is a matter of national and foreign policy beyond the scope of this pro-ceeding. As this Board stated in dismissing Intervenors' proposed Contention 17:

Contention 17, which questions the availability of fuel for the CRBR, was denied as a matter of law. This con-tention concerns a policy or programma-tic issue, which, in accordance with the guidelines set forth by the Commission in its earlier decision, is outside the permissible scope of this proceeding.

The contention involves questions of DOE policy and future actions which go wholly beyond the proper issues relevant to this particular plant.

In requesting information regarding the amount of plutonium which the United States might purchase from the United Kingdom for R&D purposes and the conditions or con-straints the United Kingdom might place on such a sale, Intervenors are again raising question of policy "which go wholly beyond the proper issues relevant to this particular plant."

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CONCLUSION Accordingly, for the reasons stated above as well as the reasons in Applicants' Motion for a Protective Order, Applicants respectfully request that their Motion be granted.

Respe 11y submitted eorge 'dgar V Attorn y for Project Management Corporation J

Leon Silverstrom Attorney for the Department of Energy

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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In the Matter of )

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UNITED STATES DEPARTMENT OF ENERGY )

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PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537

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TENNESSEE VALLEY AUTHORITY )

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(Clinch River Breeder Reactor Plant) )

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CERTIFICATE OF SERVICE Service has been effected on this date by personal delivery or first-class mail to the following: i

      • Marshall E. Miller, Esquire ,

Chairman Atomic Safety & Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C. 20545 Dr. Cadet H. Hand, Jr.

Director  !

Bodega Marine Laboratory  !

University of California P. O. Box 247 Bodega Bay, California 94923

      • Mr. Gustave A. Linenberger Atomic Safety & Licensing Board U. S. Nuclear Regulatory Commission '

Washington, D. C. 20545 ,

  • Daniel Swanson, Esquire
  • Stuart Treby, Esquire Office of Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C. 20545 (2 copies) i

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  • Atomic Safety & Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20545  ;
  • Atomic Safety & Licensing Board Panel U. S. Nuclear Regulatory Commission ,

Washington, D. C. 20545

  • Docketing & Service Section Office of the Secretary ,

U. S. Nuclear Regulatory Commission Washington, D. C. 20545 (3 copies)

William M. Leech, Jr., Attorney General William B. Hubbard, Chief '

Deputy Attorney General  :

Lee Breckenridge, Assistant Attorney General ,

State of Tennessee Office of the Attorney General 450 James Robertson Parkway Nashville, Tennessee 37219 Oak Ridge Public Library Civic Center '

Dak Ridge, Tennessee 37820 Herbert S. Sanger, Jr., Esquire Lewis E. Wallace, Esquire W. Walter LaRoche, Esquire  ;

James F. Burger, Esquire  :

Edward J. Vigluicci, Esquire Office of the General Counsel Tennessee Valley Authority 400 Commerce Avenue Knoxville, Tennessee 37902 (2 copies) ;

Mr. Joe H. Walker 401 Roane Street Harriman, Tennessee 37748

! Ellyn R. Weiss Harmon & Weiss 1725 Eye Street, N. W., Suite 506 -

Washington, D. C. 20006

3- l Lawson McGhee Public Library 500 West Church Street

. Knoxville, Tennessee 37902 William E. Lantrip, Esq.

Attorney for the City of Oak Ridge l i

Municipal Building P. O. Box 1  ;

Oak Ridge, Tennessee 37830 '

Leon Silverstrom, Esq.

Warren E. Bergholz, Jr., Esq. ,

U. S. Department of Energy l 1000 Independence Ave., S. W.  !

Room 6-B-256, Forrestal Building Washington, D. C. 20585 (2 copies) '

    • Eldon V. C. Greenberg .

Tuttle & Taylor l 1901 L Street, N. W., Suite 805 Washington, D. C. 20036 Commissioner James Cotham Tennessee Department of Economic and Community Development Andrew Jackson Building, Suite 1007 Nashville, Tennessee 37219 Georg d . Edghrff AttorMy for V Project Management Corporation DATED: May 4, 1982

  • / Denotes hand delivery to 1717 "H" Street, N.W., Washington, D. C. ,
    • / Denotes hand delivery to indicated address.
      • / Denotes hand delivery to 4350 East-West Highway, Bethesda, Md.

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