ML20054C318
| ML20054C318 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 04/16/1982 |
| From: | Frye J, Luebke E, Paris O Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8204200361 | |
| Download: ML20054C318 (8) | |
Text
%
a
.9
'I~
UNITED STATES OF AMERICA NUCLEA'4 REGULATORY COMilSSION ATOMIC SAFETY AND LICENSING BOARD
'82 /E 16 P 19 Before Administrative Judges:
John H Frye, III, Chairman Dr. Emmeth A. Luebke Dr. Oscar H. Paris SEWED hPR161982 In the Matter of
)
Docket No. 50-142 OLA
)
(Proposed Renewal of O
THE REGENTS OF THE UNIVERSITY Facility License) g 4
0F CALIFORNIA (UCLA Research Reactor)
April 16,1982 j
y; y/
MEMORANDUM AND CRDER
". J ( V' /d[s (Ruling on UCLA's Motion for a Protectiv W
Order and Other Prehearing Matters)
//
,7 The parties to this license renev eeding have been keepilig~tfie Board advised of their efforts to resolve prehearing disputes and to pre-pare their cases for hearing. At present, it appears that there may be a i
number of discovery disputes which may require resolution by the Board.
One dispute has been presented to the Board by UCLA's Motion for a Pro-l tective Order of March 23, 1982 an'd CBS's response of April 8,1982.
3 The latter document also contains a Motion to Compel to which UCLA has not had an opportunity to respond.
l It also appears that the question of scheduling the remaining pre-l hearing procedures and the hearing should be taken up by the Board.
The purpose of this Memorandum and Order is to address the matters which have been submitted for Board resolution at this time and to set in motion procedures for the expeditious resolution of other disputes l
and potential disputes so as to pave the way for resolution of the j f substantive issues raised by the contentions.
l l
8204200361 820416 PDR ADOCK 05000142 G
k w
9.
. UCLA's Motion for a Protective Order UCLA seeks the following relief in this motion:
- 1) UCLA asserts that question number 24 on page XIII-2 of CBG's June 10, 1981, interrogatories involves an aspect of the security system and thus should be covered by the protective order entered by this Board on page 4 of its July 1,1981, Order Relative to Applicant's Motion for a Protective Order, Other Requests and an Adjusted Discovery Schedule.
CBG states that it "... has no objection to awaiting [the entry i
of an appropriate protective order as contemplated by the July 1 Order]
before receiving an answer...". CBG does not concede that the in-i terrogatory relates to security matters.
In light of CBG's response, the requested relief is denied a: moot.
The interrogatory shall be answered within ten days of the entry of the st. urity protective order contemplated in this Board's July 1,1981, Order.
This Board's July 1 Order contemplated that discovery on the security contention (Contention XX) would oe deferred until appropriate procedures to safeguard sensitive caterial were developed and put in place. The Board will discuss such procedures, infra.
- 2) UCLA "... seeks protection from having to respond to any-additional interrogatories and from having to respond further to inter-l rogatories already submitted." CBG correctly characterized the prayer l
l for relief "from having to respond to any additional interrogatories" as speculative in view of the absence of any such interrogatories. As
I
. to the second prayer, asking that no further responses be required to i
existing interrogatories, CBG indicated that it will accept UCLA's representations as to the completeness of its responses; thus no further responses will be sought.
CBG of course reserves the right to make appropriate objections should it later appear that UCLA's representations were incorrect. These UCLA requests are denied.
The Board perceives that this aspect of UCLA's motion inartfully seeks a cut off date for discovery. This and other scheduling matters are dis-cussed, infra.
- 3) UCLA objects to furnishing a copy of the minutes of an October 3,1978, meeting of its Radiation Safety Committee on the ground that they reflect a discussion of the security system. CBG has no objection, but reserves its right to again request a copy of this document when discovery on the security contention opens. This aspect of UCLA's motion is denied as moot.
- 4) On November 17, 1981, CBG inspected and photographed UCLA's facilities pursuant to 10 CFR 5 2.741(a)(2). UCLA has possession of the developed film, and objects to the release of 21 photographs of a total of approximately 215.
UCLA and CBG apparently reached oral agreement with respect to the release to CBG of approximately 194 photographs to which UCLA does not object.
UCLA and CBG have prepared and signed stipulations l
regarding the release of the 194, but neither has signed the stipulation prepared by the other party.
UCLA and CBG are to execute and serve a mutually agreeable stipulation within ten days of the service of this Memorandum and Order.
Transfer of the photographs is to take place i
1
?
. simultaneously with execution of the stipulation; If agreement cannot be i
reached, UCLA and CBG are to so inform the Board, indicating their specific areas of disagreement, within ten days of the date of se'rvice of this Memorandum and Order. On being so informed, the Board will dictate the terms of the release of these photographs.
UCLA objects to the release of 21 photographs on relevancy and security grounds. One photograph is deemed irrelevant by UCLA; UCLA does not allege that this photograph involves security matters.
Con-sequently, within ten days of the date of service of this Memorandum and Order, UCLA is to furnish CBG and the Board with a copy of this photograph together with its specific objections. Should CBG wish to press the issue, it is to respond within ten days of the service of the photograph and specific objections by UCLA.
In the event the Board rules in favor of UCLA, CBG will be directed to return this photograph.
This leaves 20 photographs which allegedly involve security matters.
On page 14 of its response, CBG has suggested two ways in which these objections might be overcome. Within ten days of the date of service of this Memorandum and Order, UCLA is to indicate whether these suggestions would obviate its objections to the release of any of these photographs or whether it would be possible to depict the same scene in a second photograph while excluding features of the physical security system.
5)
In Section D of its motion, UCLA has requested relief with regard to a certain inspection of the facility by CBG which took place on November 17, 1981.
Despite the fact that CBG had not, at the time UCLA's motion was filed, sought relief with respect to that D
L h
. inspection, UCLA apparently seeks an across-the-board prohibition on further discovery of this type.
Such relief is inappropriate.
CBG has, in its response to UCLA's motion, now requested specific relief with regard to this inspection. The Board will treat this request as a motion to compel.
UCLA is to respond within ten days of the date of service of this Memorandum and Order.
In the future, CBG (as well as UCLA and Staff) should not incorporate requests for affirmative relief in responsive pleadings. Rather, a separate motion should be submitted.
Procedures for Handling Sensitive Security Information In our July 1,1981, Order, supra, we granted a temporary protective order with regard to discovery on Contention XX relating to the physical security of the facility until certain steps leading to a permanent order had been accomplished. We had specific reference to two decisions of the Appeal Board dealing with a similar subject:
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) ALAB-410, 5 NRC 1398 (1977) and ALAB-592, 11 NRC 744 (1980).
ALAB-410 sets out guidance to be followed in formulating a pro-tective order and in determining what information is to be released under it. As we noted in our July 1, 1981, Order, supra, one of the initial steps is to identify the experts which CBG wishes to evaluate the in-formation. The experts and CBG's attorney or other representative, upon Board approval, would then be given access to certain security information.
See paragraphs c. and d. of ALAB-410, 5 NRC at 1406.
l l
?
. Apparently, CBG and UCLA have not been able to negotiate this initial step, although CBG indicates that it has drafted a proposed affidavit of nondisclosure and protective order to deal with the problem (Response, p.14).
Consequently, within ten days of the date of service of this Memorandum and Order, CBG is to file and serve its proposed affidavit and protective order along with identification and qualifications of the expertsit& intends to I
utilize to evaluate security matters and any attorneys or representatives whom it also wishes to have access to security information. Within ten and 15 days of the service of this information, UCLA and Staff, respectively, may respond.
4 Discovery Cut-Off Date It appears to the Board that the following discovery matters remain open:
1.
Matters raised by CBG's Motion to Compel, discussed above; 2.
Matters covered by the interrogatories filed on' Staff in respect to its Battelle and Brookhaven consultants; 3.
Matters related to Contention XX; and 4.
Matters related to amendments to the application.
'The parties are requested to advise the Board within ten days of the date of service of this Memorandum and Order of any elaboration on, corrections, deletions, or addition to this list.
As appears below, the Board has scheduled a prehearing conference to, among other things, set a schedule for the completion of discovery.
o
. Prehearing Conference A prehearing conference will be held at 9:30 A.M., June 29 and 30, 1982, in Los Angeles, California. The purpose of the conference is to resolve any remaining discovery disputes, set a schedule for the completion of discovery which has been deferred, set a schedule for the filing of motions for summary disposition and responses, and set a tentative date for the beginning of the evidentiary hearings. A separate Notice of Prehearing Conference will be issued.
ORDER In consideration of the foregoing, it is this 16th day of April,
- 1982, ORDERED 1.
Within ten days of the date of service of this Memorandum and Order:
a) UCLA and CBG are to execute a mutually agreeable stipulation with respect to the release of approximately 194 photographs taken of the facility and simultaneously transfer these photographs to j
CBG, or, if no mutually agreeable stipulation is possible, inform the Board I
indicating the sp'ecific areas of disagreement.
b) UCLA is to furnish copies of one photograph taken 1
of the facility by CBG which UCLA asserts is irrelevant to the Board and CBG, along with its specific objections.
CBG may respond to these ob-l jections within ten days of their service.
If the Board rules in UCLA's favor, CBG will be directed to return the photograph to UCLA.
c) UCLA is to respond to CBG's suggestions as to possible means to overcome UCLA's security objections to the release to CBG of 20 i
l photographs taken of the facility by CBG.
1
. d) UCLA is to respond to CBG's requests for affirma-tive relief contained in Section D (pp.15-20) of CBG's response to UCLA's Motion.
e) CBG is to file and serve on the parties its draft proposed affidavit of nondisclosure and protective order to govern pro-ceedings on Contention XX, along with an identification and qualifications of the experts it wishes to have access to security information, as well as an identification of any attorneys or other representatives whom it also wishes to have access. Within ten and 15 days of the service of this in-formation, UCLA and Staff, respectively, may respond.
2.
Within ten days of the entry of a protective order governing proceedings on Contention XX and the execution of affidavits of non-disclosure, UCLA is to answer question 24 on page XIII-2 of CBG's June 10, 1981, interrogatories. The answer shall be made in accordance with the procedures to be set forth in the aforesaid protective order.
3.
In all respects not covered in paragraphs 1 and 2 above, UCLA's Motion for a Protective Order is DENIED.
THE ATOMIC SAFETY AND LICENSING BOARD pwk 0 -
Enmeth A. Luebke ADMINISTRATIVE JUDGE M
M Oscar H. Paris ADMINISTRATIVE JUDGE
/
John H Frye, III, Chairman f
ADMllilSTRATIVE JUDGE Bethesda, Maryland VM April 16, 1982