ML20054D777
| ML20054D777 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 04/08/1982 |
| From: | Hirsch D COMMITTEE TO BRIDGE THE GAP |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20054D778 | List: |
| References | |
| NUDOCS 8204230376 | |
| Download: ML20054D777 (26) | |
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.k COMMITTES TO BRIDGE TIE CAP 4/8/82I i7 1637 Butler Avenue, Suite 203 Los Angeles, California 90025 (213) 478-0829 81I Q, UNITED STATES & AMERICA < D NUCIEAR REGUIATORY COMMISSION S r8,'y -
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Y, ,g" BEFORE THE ATOMIC SAFETY AND LICENSING BOARD I, 8 '--
(;, f2 In the Matter of ) Docket No. 50-142 Q , i' , /;I['
THE RECENTS & THE UNIVERSITY (Proposed Renewal of eIi1 0F CALIFORNIA ) License No. R-71)
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(UCLA Research Reactor) } INTERVENOR'S RESPONSE TO APPLICANT'S 1 MOTION FOR A PROTECTIVE ORDER: AND INTERVENCR'S NOTION TO COMPEL I. INTRODUCTION Intervenor herewith responds to Applicant's Motion for a Protective Order, served March 24, 1982, urging rejection of said Motion as unnecessary, without foundation, moot, and otherwise failing to meet requisite standards for such motions. Intervenor further moves the Atomic Safety and Licensing Board to compel Applicant to respond to certain oustanding discovery requests.
Furthermore, in order to expedite the proceedings Intervenor herein indicates certain discovery disputes still outstanding but regarding which it does not seek Board action.
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II. BACKCROUND The discovery disputes in this proceeding have- been extensive and time-consuming, requiring on several occasions modifications by the Board of the discovery schedule while these disputes were resolved. For the last few months the discovery schedule has essentially been suspended while parties were directed to meet and confer in an attempt to resolve disputes prior to motions being brought before the Board. A review of certain of the disputes during the discovery period is instructive.
A. Early Disputes At a pre-hearing conference on September 25,I980, the Board granted CBG status as an intervenor and admitted outright four contentions as issues in the proceeding. Discovery was opened as to those four contentions, while the parties were directed to confer as to language and admissibility of the remaining twenty contentions proposed by CBG.
On October 20, 1980, Intervenor subaltted its first set of interrogatories as in Contention II, which alleges that the reactor in question is used primarily for commercial rather than educational and research purposes. The interrogatories inquired as to data, definitions, and records regarding commercial and other uses of the reactor.
On November 14, 1980, Applicant filed responses to Intervenor's first interrogatories, answers which essentially denied the existence of any financial or other records regarding reactor use and asserting that there were no commercial uses of this facility because the only function of the reactor was education. CBG found the answers evasive and unresponsive.
and on November 25 filed a Motion to Compel,
c 1. On December 22, 1980, the Board CRANTED the Motion to Compel, directing Applicant "to be open and candid" and stating in response to Applicant's assertion that it did not possess financial records for the reactor itself, "We find it difficult to believe a sophisticated university does not have in its accounting records the information being sought."
The Applicant, on January 22, 1981, responded to the Board Order by filing "Further Answers" which essentially repeated previous answers and once again denied existence of any data categorizing reactor operating 11 time into commercial, instructional, and research categories. Intervenor, however, discovered a recently-filed document in the LPDR consisting of a table prepared by Applicant for NRC Staff categorizing reactor operating time into virtually the precise categories requested by Intervenor, including corrarcial use. (The table showed that for the most recent year reported, 60% of the port hours were called by Applicant itself " commercial" and only 31 hours3.587963e-4 days <br />0.00861 hours <br />5.125661e-5 weeks <br />1.17955e-5 months <br /> were engineering classes.) Intervenor thus filed a second Motion to Compel, on February 6,1981, arguing that the information Applicant claimed in interrogatory answers not to possess was indeed in its possession.
The Staff filed in support of Intervenor'c Motion on February 27, asserting, "In the Staff's view, the Intervonor has raised a question of a failure by Applicant to comply with the Commission's rule of practice 10 CFR 2.740(b) requiring each interrogatory to be answered fully on oath or affirmation..." Staff continued, "The Applicant has indicated in its answers that it has no records categoris.ed into areas of Intervenor's inquiry butthe letter to NRC Staff provided by Intervonor shows the contrary..."
_1/ Applicant in its January 22 response did offer for CBG review its financial ledgers, which contained the raw data as to income from commercial users of the reactor which CBG had previously requested and Applicant had denied possessing.
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On March 10, 1981, the Board GRANTED Intervenor's second Motion to Compel, stating, "It appears to the Board that UCIA has, in fact, been lsss than frank in its responses related to reactor usage and financing. . . .
Once again, we direct UCIA to be open and candid as to the details of all existing records." And the Board put Applicant on notice about possible imposition of sanctions if the behavior persisted:
This Board is charged with the responsibility of obtaining a complete record on which to base a ded sion. We will not allow this duty to be compromised, or the proceeding to be further delayed, by gamenanship.
Failure of the parties to fully cooperate in responding to discovery requests in the future may well result in the imposition of sanctions by the Board under 10 CFR 2.707.
However, Applicant did not provide further answers as per the Board's Order. Upon inquiry by CBC, Applicant's counsel responded in a letter dated May 1 that Applicant had no intention of submitting further answers.
On May 13, CBG filed its third Motion to Compel as to the same set of interrogatories it had submitted in October and for which two previous Board Orders directing responsive answers had been issued.
The Board granted the third Motion also, stating inter alia Our order of March 10, 1981, relative to the supplemental motion to compel told UCIA in paragraph after paragraph to furnish responsive answers to the interrogatories under Contention II.
It is unimportant that it didn't use the magic words "The motion is granted". UCLA was ORDERED to respond to the CBG interrogatories with a complete disclosure of all relevant information.
The Board continued:
UCIA's letter of May 1,1981 is unacceptable and blatantly insulting from a great university to this Board. Enough is enough. CBG's third motion to compel is GRANTED and responsive answers by UCIA must be made within ten (10) days from receipt of this order.
The Board furthermore directed the university "to 'show cause' why it is l
not appropriate under 10 CFR 2.707 to impose a sanction" and "to 'show: cause' why counsel for the Licensee should not be cited under 10 CFR 2 713 for refusal to comply with a Board direction... ."
l On June 11, 1981 Applicant responded to the Board Order by providing further answers to CBG's original interrogatories. Those new answers admitted, far the first time, that there were substantial
" commercial" users of reactor operating time (although Applicant prefered to refer to these uses as " extramural users", it stipulated that to date all " extramural" users were comaarcial firas). The answers finally gave figures for income from these commercial uses, and repeated the information, the existence of which was previously denied, of the extensive portion of reactor port hours that are for commercial users.
i Also on June 11, Applicant responded to the Board's "Show Cause" Order.
In the response, Applicant apologised to the Board for any inconvenience caused by Applicant's behavior in respcmse to the various Board Orders.
On June 25, 1981, the Board issued an Order directing counsel for UCLA, Mr. Villiam Cormier, to furnish an affidavit as to whether statements attributed to Mr. Cormier in a June 26, 1981 SCIENCE Magasine article were accurately reported. In that article, Mr. Cormier was quoted as calling the Board's "Show Cause" Order as " sloppy" and indicating that the univoreity, in response to that order, had apologized to the Board, "even though Cormier thinks there was no reason to do so."
Ort July 9,198L, Mr. Cormier submitted the requested affidavit, asserting that SCIENCE had accurately reported portions of its interview with him but " distorted" other portions thereof.
On August 24, 1981, the Board issued its ruling as to the matter of sanctions regarding Applicant's behavior in responding to CBG's very first interrogatories, determining that sanctions were not appropriate because, inter alia, although "UCLA was slow to fully recognize its obligaticn in l
responding to discovery requests," there was no clear evidence of default )
or willful disregard and that the failures to fully respond were due largely to the inexperience of Applicant's counsel. As the Board put it,
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'- l It is not unusual for intervenors in our proceedings, particularly those proceeding pro se or pro bono, to have difficulty in complying with 10 C.F.R. Part 2, but our usual experience with applicants is normally the reverse. A utility seeking a perait or a license ucually has "been down the road before" in prior proceedings, and often, if they have not, they retain experienced Washington counsel who specialize in our proceedings. We did not have such experienced counsel for Applicant here. . . .
Whether due to willful disregard or inexperience of sounasi, Applicant's failure to provide responsive answers to Intervenor's initial interrogatories as to Contention II led to tremendous delay in the proceedings. Nearly a year elapsed between the time the interrogatories were promulgated and the time the matter was finally resolved. In between, the Board had to three times direct Applicant to answer the interrogatories fully and responsively, as well as warn of possible imposition of sanctions and censure of counsel.
B. Disputes as to Discovery as to the Othei Contentions.
At a second pre-hearing conference February 4 and 5,1981, the Boarti received a stipulation as to contentions about which there was agree:nent as to language and adaissibility, and heard argument about the contentions as to which dispute remained. On March 20, the Board issued an order admitting sixteen contentions, in addition to the four contentions admitted the previous September, and opened discovery as to all contentions accortling to the following schedules First Interrogatories March 20,1981 Response (30 days) April 20,1981 Second Interrogatories (20 days)
(Followup questions i based on response) June 10,1981 l Response (20 days) June 30,1981 l
, :. -7 Motions for Summary Disposition July 30, 1981 (30 days)
On April 20, as per the above schedule, Applicant and Intervenor served on each other interrogatories as to all contentions. On May 20, answers were served by both parties. CBG found most af Applicant's responses as inadequate as the previous set regarding Contention II and once again requested Board direction to obtain responsive answers. The Board on July 1 directed Applicant to provide responses on those matters for which its request for protective order had been denied, which Applicant did.
In addition. Applicant filed supplementary answers to a number of the interrogatories for which Intervenor had requested a compelling order from the Board.
On June 10, as per the discovery schedule, CBG submitted its follow-up interrogatories. Applicant made no such submission, but on the 19th requested that the Board suspend the discovery schedule while certain discovery disputes were resolved. Applicant also requested that it be permitted to file its follow-up interrogatories to CBG after the June 10 deadline which had passed.
On August 24, the Board granted Applicant's motion and directing UCLA and CBG "to meet to consider agreement on any matter arising in dispute between thes. No motions shall be filed with the Board until this avenue has been exhausted." Since August 24, roughly half a dozen discovery conferences have been held with Applicant, attempting to resolve i disputes regarding language of interrogatory questions and adequacy of interrogatory responses, problems regarding Applicant's production of documents, t
2/Atp.9and10ofitsMarch 15,1982 " Current Status Report on Discovery Proceedings" Applicant requested that the Board open summary disposition l prior to the conclusion of discovery.(Applicant has since, in a letter to the Board dated March 23, withdrawn its request until such time as it has submitted its amendments to its application and Intervenor has had an opportunity to review them). Applicant failed to state that it had previously stipulated summary disposition would begin thirty days after the close of that the Board had so ordered, and that the EiGE had repeated discovery,twiec its order subsequently (April 30 and June 9), including explicit rulings against summary disposition on the security contention until disocovery was complete.
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Intervenor's requests for entry upon Applicant's site for purposes of ;
1 inspection and photographing, and the disposition cf photographs from f said inspection. In addition, matters related to the security contention j were repeatedly, and by mutual consent, placed upon the agenda of these discovery conferences, although discussion of the matter did not take pince until the last discovery conference, at which time Applicant announced i that it was unwilling to discuss the matter. Numerous matters were resolved, particularly with regards language of interrogatories. Numerous ,
matters rossined unresolved, particularly with regards the adequacy of f Applicant's interrogatory responses, disposition of photographs and i certain documents, as well as certain aspects of the site inspection which Applicant prohibited CBG from undertaking. Both Applicant and Staff have indicated that all matters which can be resolved have been resolved. !
Bacause the reactor can continue operating while the proceedings drag on, CBG j has chosen to forego resolution of most of the remaining disputes about Applicant's discovery responses, particularly interrogatory answers, in an attempt to expedite the proceedings. CBG will, however, request Board direction in resolving certain matters related to site inspection.
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]/ As Intervenor has previously reported to the Board in past discovery status reports, Intervenor has attempted, pursuant to the Board's Orders in this regard, to meet and confer with Staff ani Applicant as to methods ;
I to resolve the discovery disputes as to the security contention without necessitating motions to the Board. Intervenor currently has a set of interrogatories on the security matter before the Applicant, interrogatories which Applicant has repeatedly objected to answering, with or without an appropriate protective order. Discovery on these matters has likewise been suspended, ard CBC has repeatedly attempted to meet and confer with the l parties as to methods of meeting their objections to discovery on the matter.
l of reducing or even eliminating the need for discovery thereon. Staff l expressed willingness to discuss the matter, and two such discussions did j take place. Applicant expressed willingness to discuss the matter at five
! discovery sessions by placing it on the agenda, but at the last session, when the agenda item was finally reached, declined to discuss the matter.
Applicant's implication in its March 15 Discovery Status Report that CBG was responsible for the delays in the security area is, therefore, difficult to comprehend, when the delays were caused by Applicant indicating for months it was prepared to discuss the security matter and then at the last discovery confarence refusing to.
4 III. DISCUSSION i Discovery in NRC proceedings is given broad and liberal scope.
In general, parties "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party."
10 CFR 2.740(b)(1). Furthermore, "it is not ground for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." 10 CFR 2.740(b)(1).
The scope of discovery under the Commission's Rules of Practice is similar to discovery under the Federal Rules of Civil Procedure. Pacific Cas and Electric Company (Stanislaus Nuclear Project Unit 1) LEP-78-20, 7 NRC 1038, 1040 (1978). An evasive or incomplete response is to be treated as a failure to respond to a discovery request. 10 CFR 2.740(f)
Under liberal discovery rules, those opposing discovery are required to carry a heavy burden of showing why discovery should be denied. Blankenship
- v. Hearst Corp. CA CAL. 1975 519 FS 967. Objections to discovery must be specific and supported by detailed explanation as to why each specific item of discovery objected to is indeed objectionable. In re Folding Carton Antitrust Litigation DC Ill. 1979 83 FRD 260 Certain of Applicant's requested relief is too broad and vague to meet the specificity requirements for such a motions other aspects are untimely, relating to discovery that has not yet occurred nor even anticipated; other aspects are simply without foundations and still others CBG will not contest in order to expedite the proceeding. The Motion is discussed below. ,
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-i A. Interrogatories
- 1. Applicant argues that Interrogatory 24 on page XIII-2 of CBG's June 10,1981 interrogatories deals with a security matter that should properly be considered under Contention XX. 'Ihe interrogatory inquires as to how the interlock system on the 3rd floor equipment room can be overriden. Discovery on other interrogatories related to the security contention has been suspended until an appropriate protective order is in :
Place: CBG has no objection to awaiting said crder before receiving an answer to this interrogatory. In so doing, CBG neither accepts nor rejects Applicant's assertion that the method by which the 3rd floor equipment room interlock can be overriden concerns an aspect of the security system.
- 2. CBG does not seek to compel further answer to question 30 on page XII-3 of the same set of interrogatories.
- 3. Applicant, at lines 13-14 of page 4 of its Motion, once again makes completely unspecific and speculative requests for protection that fail to meet the standards for appropriate requests for protective order.
Applicant states:
Applicant seeks protection from having to respond to any additional interrogatories and from having to respond further to interrogatories already submitted.
Similar overbroad requests have been rejected by the Board in the past (Board Order of July 1,1981, at 5-6: and order of July 20,1981.)
The first part of the motion is speculative and untimely-there are no additional interrogatories. Aside from the security matter, which has been suspended, and possible discovery as to UCLA's proposed amendments to its application, not yet submitted, no additional interrogatories are anticipated. The motion is premature and overbroad and should be denied.
..'. The second part of the request is simply an easy way to request that the Boarti not grant adn CBG request to compel any further answers to g interrogatory deemed not to be fully answered. It fails to meet the specificity test of relating to identifiable interrogatories. However, it is moot, because CBG has decided it will take Applicant's word that all of the interrogatories have been answered fully and completely, that no relevant information has been withheld, and attempt to expedite the proceeding by not moving to compel further answers as to any of the interrogatories. CBG will raise, however, appropriate objections if to the Board Applicantatsomelaterdateatteuntstosubmitevidence/relevanttothe interrogatories, evidence which it had in its possession when it answered the interro6atories and yet failed to provide.
Thus, the second part of the request. is moot.
B. Production of_ Documents
- 1. Applicant objects to providing a copy of the October 3, 1978, ainutes of the Radiation Safety Committee on security grounds. Applicant admits that there was a breach in its security system in that this assertedly sensitive document was provided to Intervenor for review in a document review session. Although Intervenor has alra dy seen the document in question and read it, Intervenor will not press for a copy to be provided at this time. Intervenor, however, reserves the right to request a copy of the document when discovery on security matters is opened.
The incident involving Applicant's failure to protect this sensitive security information adequately underscores In'tervenor's concern that appropriate precautions be established for the security contention to prevent inadvertent disclosure of sensitive infor:tation by agn party to the proceeding.
- 2. There were certain other disputes about document production,
post particularly related to Applicant's censoring of a document by the Ct.lifornia Seismic Safety Commission related to seismic vulnerability of state-owned Wildings, including the UCIA reactor and other reactors other agstate institutions. Applicant provided Intervenor a copy of the right half of each of a score of pages of tables, comparing various buildings, which butcensoredoutthecomputerprintoutgidentifiedthebuildingtowMch the data related. Intervenor has, however, ottained an uncensored version of the document from the state agency that produced it (it is a public document), and therefore has no need to compel full release of the document by the university. Intervenor remains at a loss why Applicant censored this publicly-available document.'
Thus, no disputes exist as to production of documents that necessitate Board action. Intervenor will shortly request of Applicant copies of certain pages of operating logs previously produced for inspection, as per an agreement to await final resolution of document production disputes before making a final request for copying. When those copies are provided, all document matters should be resolved, with the exception of the security contention and any possible discovery the Board may authorize regarding the Applicant's new application amendments.
C.;Produef. ion of Photographs Intervenor will not detail here the dispute currently existing between CBG and UCLA as to the photographs CBG took during its site inspection on November 17, 1981. The photographs taken by CBG on that inspection remain Y Applicant's March 15, 1982 Discovery Status Report implies that Applicant has "provided" Intervenor with a stack of records copied for Intervencr that would measure about ten inches high. It should be noted that the University has charged Intervenor twenty cents (20e) per page for the copies, five (5) times the going rate at the UCTA duplicating center-
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in the possession of Applicant, which has yet to release them.
Applicant, in its Motion (p. 6), states that the photographs will be released when a stipulation, a copy of which it attached as an exhibit, is signed by Intervenor. Inexplicably, Applicant fails to state that a month ago Intervenor submitted to Applicant a stipulation for itc signature, which has not yet been signed. A copy of said stipulation is attached.
Nonetheless, either stipulation is merely an interim agreement pending resolution of the dispute by the Board. CBG sees no basis for Applicant's conditions as to release of CBC's 196 (the photographs for which no security objection was raised), and as soon as Applicant has filed its request for a protective order outlining why it believes the conditions included in the enclosed interim stipulation should be made permanent, CBG will file a response and Motion to Compel full release of CBG's photographs. The interim stipulation agreed to by the parties at their last discovery conference, and yet to be signed 17 Applicant, nerely creates temporary conditions under which the photographs can be released while the Board is considering what permanent conditions, if any, to impose. Thus, as soon as Applicant moves for a protective order on the 196 non-security photographs Intervenor will respond and the .
matter will have to b e resolved by the Board. Hopefully, Applicant will sign the interim protective order shortly so that the photographs can be released ude: temporary conditions in the meantime, expediting affairs.
As to Applicant's objections to the remaining twenty-one (21) photographs, Intervenor is, of course, completely unable to makes its case for release' g Intervenor has, within the last two weeks, called counsel for Applicant i three times to determine whether the stipulation has been signed. The calls
( have to date not been returned. (Additionally, please note that Applicant l has requested that the stipulation be signed by Dorothy Thompson, an attorney
[ with the Nuclear Iaw Center who has not yet made an appearance in the case l but may do so in the future. Applicant requested that she also sign the i stipulation, to which CBG had no objection, although she does not at this l time represent CBC. )
of the photographs because Applicant will not even identify the photographs members inquestion,letalonepermitCBGtoseethem,eventhoughCBG/tookthe _
photographs and obviously have seen whatever it is that the camera "saw" i when it took the supposedly objectionable photographs.
CBG thus makes three requests as to the twenty-one (21) unidentified CBG photographs Applicant objects to releasing to CBG:
(1) That Applicant be directed to, if and where possible, provide CBG with the photographs and negatives in question with the objectionable item in the photograph blocked out or otherwise removed. Applicant had previously agreed to do this in at leact one case where it thotsht faces of individuals appearing in a photograph of the reactor control room would be an invasion of the privacy of the reactor staff personnel.
(2) That Applicant be directed to permit CBG to take the questionable photographs again, this time with the questionable item covered or outside the camera angle.
(3) That any photographs for which solution (1) or (2) is not possible be kept by Applicant pending appropriate affidavits of non-disclosure and protective order conditions being in place which would permit counsel for or representative of Intervenor to review the photographs in question under non-disclosure conditions and participate in in camera argument as to whether the photographs should be released with the bulk of the photographs or whether they are rightfully to be included in security information provided only under the security contention protective order.
Intervenor has prepared a draft affidavit of non disclosure and draf t protective order for the security contention, as well as proposed schedule
- for discovery on the security matter, for circulation to the parties for i
discussion prior to moving the Board for their adoption. As this procedure might be lengthy, the Board m16 ht consider a simple affidavit of non-disclosure
related solely to the disputed photographs and an in camera procedure for argument as to their release whereby CBG could, prior to the full procedures being in place for the security contention, review the disputed photographs and makes its arguments as to whether they should be unconditionally released or not.
In summary, to rule on Applicant's request that the twenty-one unidentified CBG photographs not be released at all, without opportunity for CBG to know which photographs and on what specific grounds they are objected to, and to make arguments accordingly, would violate due process.
CBG has made two siggestions for immediate release of the photographs, or their intended contents, without disclosing security information, and a third suggestion for deferring ruling on any resci.dng photos until affidavits of nondiscitsure are in place permittin6 GBG review of and argument about the yn??p 3ne photos. Argument about the remaining 196 photographs for which security objections have not been raised will await Applicant's motion for a protective order setting conditions upon their release, conditicus which CBG will oppose, but conditions which CBG will obey, once Applicant has signed the interim stipulation, until the Board rules on Applicant's as-yet-to-tesubmitted motion for a protective order making permanent the proposed interim conditions.
D. Inspection of the Facility Intervenor made two (2) requests to inspect, test, and photograph-Applicant's facility and equipment. See requests of September 3 and 11, 1981. Both requests were extremely specific, detailing precisely which equipment and at what locations inspections were requested. Agreement could not be reached between Applicant and Intervenor on the requests, l
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. :- so Applicant proposed that it provide CBG with a tour of the facility, showing CBG those items and areas Applicant chose to, with areas and items not shown to be the subject of future discussion. Without waiving any of its rights to inspect the unprovided areas and items, CBG went on said tour.
During said inspection, Applicant refused to permit CBG to inspect certain items and areas that had been clearly and specifically requested in the September 3 and 11 production requests. Discussion at later discovery conferences could not resolve the dispute, so Board action is required.
- 1. Control Panel Equipment CBG has contended that important equipment for the reactor is aged, outdated, difficult to repair and replace, and otherwise unreliable.
CBG has specifically pointed to the control panel equipment in that contention.
In its September 11, 1981 request for inspection, CBG specifically requested that it be permitted to inspect the control panel and such related equipment as the safety amplifier, log N and period amplifier, dual linear amplifier, control blade logic system, tha regulated power supply for the Log N and period amplifier, the automatic power level controller, the recortling mechanisms for ventilation effluent activity and secondary effluent activity, and a number of other specific components of the control panel. See September 11 request, items 3,6,21,22,28,29,30, 43,51,67,68,70,71,72,73,74,75,76,77,78.
t l 3e above equipment is contained within the control console, readily accessible for maintenance purposes by simple removal of a door-like panel at the rear of the console. Applicant agreed to permit viewing of the equipment behind one panel, but refused (with no reason given) to' permit viewing of equipment behind other panels, causing CBG to wonder as to whether something was being hidden from it for a reason. S e equipment which CBG wished to l inspect it was not permitted to do so, and no reason was given. None is
given in Applicant's Motion (see Motion at 7). Inspection of the equipment is clearly relevant to the contentions no reason whatsoever has been given by Applicant as to why it should be protected from Intervenor inspecting said equipment. Applicant should be compelled to permit said inspection.
- 2. The room directly adjacent to the reactor roca (Tokomak)
On September 3,1981, CBG requested right to inspect "the physical and mechanical features which would affect spread of radioactive releases" in case of accident, in order to accurately determine dispersion pathways and subsequent public doses, an issue central to the disputed matter of consequences of a major accident of the facility. CBG made specific requests as to areas of the facility it wished to inspect and items therein. In particular, CBG stated it wished to inspect corridors and doorways and other pathways through which radioactivity would travel to I reach unrestricted areas. Dispersion and exposure will be quite difficult to estimate without knowing possible pathways. In particular, Intervenor requested to inspect dispersion pathways through the Tokamak room (room 1000A, directly adjacent to the reactor rooms see facility diagram, attached ). Applicant refused to permit inspection thereof no reason was given, and none is given in Applicant's Motion for a Protective Order.
In absence of good cause, the motion should be denied and CBG should be [
permitted to inspect that area. (Intervenor notes that the area is routinely open to tourgroups of visitors).
- 3. Other areas adjacent to reactor room f
In its September 3, 1981, production request, CBG requested that it be permitted to inspect certain areas that might constitute dispersion pathways to unrestricted areas in case of accident. In particular, CBG requested that it be permitted to inspect room 1003, 1004, 1005, 1567, 1561, 1541,
l the corridor between 1540 and 1541 and along 1540, and room 2567C and2549 and the unmarked room between them. As noted in Attachment A, none of these areas were part of the tour Applicant permitted. CBG resp.ctfully l
requests that' Applicant be compelled to permit inspection of said areas, and that Applicant's extremely vague and all-encompassing request for protective order (" Applicant seeks protection from having to provide any further inspection, testing or photographing of any of its facilities or equipment") be denied. Such a request--which amounts merely to a blanket request to be exempt from responding to previously served discovery requests-is completely inappropriate. No foundation whatsoever has been provided for its the areas for which inspection has been requested are clearly relevant to the proceeding, and the request is essential to full presentation of the facts at hearing. How can exposures to the public in unrestricted areas be estimated in case of accident without knowledge of the plume dispersion pathways, from reactor room to public areas?
- 4. Return to Retake Photos that did not come out CBG has not yet been permitted to even view the photographs it took on the November inspection, so it does not know if any of the photographs (developed by the University) did not come out as intended. It was previously agreed that if certain photos did not come out CBG could return to take them again. In addition, there seems to be some disagreement as to the total number of photographs taken. CBG has records of having taken 217 photographs. Applicant asserts that it developed only 215 photographs.
CBC requests that it be permitted to retake the missing two photographs and any that may not have come out. (We note in passing that Applicant permitted Staff to accompany CBG on its site tour, and three days later permitted Staff to return, without notice provided to CBG, and take photograph 4 for which no conditions whatsoever appear to have been placed. )
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- 5. TID and filabadge locations outside NEL CBG specifically requested that it be permitted to inspect the location of past and present thermoluminescent dosimeters and film badges, as well as the location of control kdges, that are or were placed outside the Nuclear Energy Iab facility to monitor releases from that facility. We note that the locations are public knowledge, as the university has described their locations in public documents: however, specific geometry of placement cannot be determined from the documents, and CBG needs to inspect those locations in order to interpret the radiation readings from those devices.
For example, Attachment B is a description by Applicant of past TLD locations.
It cannot be determined from that chart precisely where on the parapet certain TLDs were placed, how much shielding from the stack they had, and other geometry considerations that would assist considerably in interpreting the data from the TLD measurements. Similarly, the dosimeters placed on Emuley Pavilian ard Knudsen Hall provide data relied upon by Applicant; yet without knowing the precise placement, the significance of the data is difficult to assess. CBG's request for inspection of film Indge and TLD locations outside NEL was refused in its entirety by Applicants no good reason exists, and CBG requests that Applicant be compelled to provide opportunity for inspection of said past and present locations, including where control film 1.adges are stored and monitored.
Intervenor anticipates that the inspections requested above would take minimal time-roughly one hour to complete inspection within NEL, and rou6hly li hours to co:rplete inspection of TLD and film badge locations outside NEL. This is an Lnsubstantial burden and denial of said inspection can only result in reducing the information available to the Board in naking its final decisions on the matters at issue in the licensing proceeding.
E. Other Matters (Motion, p. 8)
Once again, Applicant has made vague, overbroad requests to the l Board, and, once again, requests which violate agreements made by the parties. Applicant essentially asks from " protection from any further discovery in this proceeding," when Applicant and Intervenor had agreed that the issue of whether additional discovery would be necessary would await receipt of Applicant's new application amendments, review by Intervenor, and discussion among the parties. Applicant now violates that agreement, asking the Board ng to protect it from further disco"ery on matters which have no)o yet even arisen. Until CBG sees the application amendments it cannot possibly know whether it needs additional discovery as to the new material.
In. addition, the request is totally gratuitous and speculative.
There are no additional discovery requests, and none are anticipated except as to the security matter, currently deferred, and possible discovery as to the new amendments, when released, which will first be discussed with Applicant. For Applicant to make its motion for protection from all future discovery (with an unnecessary " good cause" procedure for invoking Board modification of the protective order) two weeks prior to the time Applicant and Intervenor had mutually agreed to discuss: the matter is a violation of that agreement, of the Boazd's order to defer motions until parties had conferred, and of CBG's due process rights.
. Furthermore, it is completely unnecessary, as there are no such discovery I
matters pending. What is at issue is the adequacy of Applicant's previous responses, the degree to which those responses are evasive or incomplete and fail to meet the requirements of the Rules of Practice. The request to be protected "from any further disccvery" is unnecessary, speculative, and should be denied. If a need for further discovery arises, the matter l
l
i can be discussed when there is something specific to talk about, and, in keeping i with the Board's Orders thereto, after the parties have conferred in an attempt to avoid motions to the Board. CBG therefore respectfully requests that Applicant's request be denied, or, in the alternative, deferred until after Applicant has submitted its amendr.ents and the parties have conferred as to the necessity of future discovery thereon.
IV. CONCLUSION Applicant, in its Motion for a Protective Order and its most recent Discovery Status Report referenced therein, makes a number of statements that arebaM misrepresentations of the record of this proceeding. For example, the reason Applicant has been forced to answer interrogatories several times is not because Intervenor has submitted excessive interrogatories, but because the Board has repeatedly found Applicant's answers evasive and unresponsive and compelled further answers. For example, the reason the security matter has been so delayed is that Applicant for months indicated it was willing to meet and confer on the matter and then at the very last discovery conference announced it was unwilling to discuss the matter. For example, Applicant's request to be protected from future discovery fails to indicate that Applicant and Intervenor had agreed to postpone motions on that matter until Applicant ,
submits its applicaticn amendments and the parties have conferred, as per the j
Board's orders thereon. For example, Applicant's request of March 15 (since deferred) that the Board open summary disposition before the completion of P discovery fails to indicate that that request amounts to a request for reconsideration I of three previous Board Orders to the contrary and nullification of a stipulation l
! to which Applicant agreed. For example, Applicant's attempt to blame CBG for the delay in the release of photographs fails to indicate it is Applicant who has failed to sign the stipulation and that the stipulation agreed to is only an interim one until the Board rules on Applicant's objections, as yet unmade,
to release of the photographs taken by CBG.
The list could go on quite a bit further. Suffice it to say that the reason Applicant has found discovery so burdensome is because it has been repeatedly forced to provide additional responses because its initial responses were found by the Board to be evasive and unresponsive. Intervanor has been forced to expend extraordinary efforts, including numerous previous motions to the Board, to get even a few mildly responsive answers. The process has extended a discovery period that should have been a few months into several years, with the hearing significantly delayed. During all this time, the reactor has been permitted to continue to operate, while the issues in controversy about its safety remain unresolved.
In summary, CBG respectfully requests the Board deny Applicant's Motion for Protective Order as lacking in specificity, unnecessary, moot, untimely, and without foundation. And CBG respectfully requests that its Motion to Compel, primarily with regards areas not permitted to be inspected during the November tour, be granted. CBG has, in order to avoid further delays 151 the proceeding and additional burdens on the Board and parties, chosen not to request Applicant be compelled to provide further answers to interrogatories. a great many of which appear far less than fully responsive.
l' Respectfully submitted,
/ , ,
r- /
ivluv c c. w., ~
DATED at Los Angeles, CA Taniel Hirsch April 8, 1982 President COMMITTEE TO BRIDGE THE GAP
l.
l EINIBIT SHEET ,
l l ATTACHMENT A Drawing of Nuclear Energy Imb and the areas CBG was permitted to inspect November 17, 1982. The drawing is from a report by Applicant to the Board regarding the inspection. Intervenor has indicated areas that it was not permitted to inspect with an "X" or dotted line. Applicant noted areas inspected with solid lines and arrows.
ATTACHMENT B Drawing by NEL of some of the locations of TLDs in the past, showing that the locations have been made publics what CBG requests is site inspection of the specific locations to ascertain TLD geometry, which cannot be determined from the chart.
ATTACHMENT C CBC's request for site inspection dated 9/11/81 ATTACHMENT D CBG's request for site inspection dated 9/3/81 ATTACHMENT E Proposed Interim Stipulation as to release of photographs while Board ccmsiders arguments by Applicant for permanent conditions as to their release. Applicant has neither signed interim stipulation nor submitted Motion for Protective Order to prevent release of the 196 photographs in question, yet the photographs remain in its possession.
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l ATTACHPENT C NUCtEAR IAv CENrER 9/11/81 c/o 1724 North Ia Brea Avenue los Angeles, California 90046 (213) 876-4700 Attorneys for Intervenor COMMITTEE TO BRIDGE THE CAP UNITED STATES OF AMERICA NUCLEAR R]iUULA'IORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING ECARD In the Matter of Docket No. 50-142 (Proposed Renewal of Facility THE REGENTS OF THE UNIVERSITY CF CALIFORNIA ense o. R-70
- IhTERVENOR'S FORMAL REQUEST, AS PER (UCLA Research Reactor) 10 CFR 2.741(a)(2), TO 3E PERMITTED ENTRY UPON APPLICANT'S PROPERTY FOR PURPOSlis CF INSPECTION, MEASURING, PHOTOGRAPHING, AND TESTING REQUEST TWO PROPOUNDING PARTY: COMMIITEE TO BRIDGE THE GAP RESPONDING PARTY: REGENTS OF THE UNIVERSITY OF CALIFORNIA Intervenor, the Committee to Bridge the Gap, hereby requests that Applicant, the Regents of the University of California, permit representatives of and investigators fe Intervenor to enter upon certain land and other
- .roperty, designated herein, for the purpose of inspectin6 and measurin6e photographing, and testing the property and certain designated objects thereca, pursuant to 10 CFR 2.741(a)(2).
On September 3,1981, Intervenor requested permission to inspect certain portions of Applicant's facility as to certain contentions dealing with ventilation, airflow, and dispersion matters. Intervenor herewith requests permission to inspect certain portions of Applicant's facility as to the other matters in controversy, specifically, Contentions I. 3.a, b,d,e.f,g, II, III, IV, V, VI, VII, VIII, IX, X, XII, XIII, XIV, XVI, XVII, XIX, and XXI. gd O jfCtQ p g-ksc-Cf9YCh'
l
,- l
-?.-
Intervenor respectfully requests permission to inspect, measure,
- l photograph, and test certain objects and processes identified below related to the above contentions and found within the Nuclear Energy laboratory facility. It proposes to do so on a day mutually a6reeable to the parties. It additionally requests that on another mutually agreeable date it be permitted to inspect and photograph the location of past and present film badges and TLDs cutside the NEL facility used in monitoring possible exposures related to the facility.
Intervenor hereby requests permission for the purposes above to enter and irupect the followin6 property: the Nuclear Energy Facility at UCLA, including but not limited to rooms 1000, 10C0A,1000B, 1003,
- 1004, 1005, 1567, 1561, 1549, 1541, 1540, the area between 1561 and 1549, and rooms 2000A, 2000B, 2000, 2001, 2567B, 2567A, 2567, 2567c, and 2549, and the room between 2000B and 2001, the area between 2567C and 2549, plus all hallways, corridors, stairwells, and doorways leadin6 thereto and therefrom. TheaboveroomidentificationsarelaseduponFiguresIII/4-3and 4-4 of the Applications should in any instance that chart be an inaccurate representation of the actual NEL facility, Intervenor requests the rooms intended by the above request be made available for inspection even should the identification, based on the Application, be at variance with the actual structure. In particular, Intervenor requests entry into the followin6 areas, whether they are identified above or nots reception room, control room, reactor room, EL machine room, Tokomak room, health physicist's lab, and room (not reactor room) where pneumatic tube ends.
Furthermore, Intervenor requests entry into 3rd floor area and machine room.
For purposes of specificity the enclosedlist is rather detailed: however the entire inspection within NEL is anticipated to take no more than a few hours.
\
l ' .' .
Intervenor hereby requests permission to inspect the following objects, equipment and processes in the areas listed above
- 1. film ladge and TLD, past and present, locations, within and outside NEL, including site of control film badges, whether at NEL or in Center for Health Sciences (if NEL control badges are kept at CES)
- 2. all non-portable radiation monitors at NEL, including but not limited to hand-and-foot counters, secondary effluent monitor, the two GM gamma detectors mounted on the walls of the reactor room, the continuous particulate air monitoring system sampling the exhaust stack, the Argon-41 monitor, high level GM radiation stack and area monitor identified at III/4-7 of Application.
- 3. the alarms, annunciators, readouts, warning lights, and other recording or warning devices attached to the monitors identified in 2 above.
- 4. all portable radiation monitors at NEL, including but not limited to GM counters, neutron devices including the PNR-4 REM Meter and the NEM0 SPHERE, and devices for integrating counts from said monitors.
- 5. health physics instrumentation for determining th,e radioactive content of airfilters, swipes, liquid and gaseous samples: 1.e. the health physics laboratory equipment
- 6. all evacuation and emergency alarms, both triggering devices and warning devices, such as flashing lights, audible alarms, intercome, smoke detectors, automatic sprinkler systems.
- 7. mock-up of fuel bundles, mock-up or sample of fuel box, deflector plate, graphite rupture disk, control blade
- 9. pneumatic tube system
- 10. sample containers of various varieties used in pneumatic tube and irradiation ports.
- 11. place where calibration methais, requirements, and records kept.
- 12. place where maintenance log kept l
- 13. place in control room where operating procedures are kept
- 14. location of all emergency procedures (where posted)
- 15. location of all copies of 10 CFR within NEL. l
- 16. all specific locations where Cobalt-60 leaking sotr:ces have been stored.
- 17. all specific locations where Ra-Be leaking sources have been stored.
. . . 4
- 19. spare or back-up control blade motors
- 20. high radiation areas identified at page 125 of second set responses
- 21. interlock, inhibit and scram syster.s currently in use at the NEL reactor, e.nd means for by-pasa, as per response #30 at page 127 of Second Set Response, including but not limited to 3rd floor void area interlock system
- 22. the control panel
- 23. the reactor itself
- 24. the process pit
- 25. the dump valve, and airpressure system for the dump valve
- 26. Argon dilution airflow system
- 27. ceiling above control panel
- 28. safety amplifier
- 29. log N and I triod amplifier
- 30. dual linea 2; tmplifier
- 31. the repair and testing equipment available for maintenance purposes ,
t 32, fuel storage holes i
- 33. domineralizers
- 34. portions of corroded pipe replaced or bypassed after 1971 earthquake
- 35. shield tank
- 36. graphite thermal column 37, areas in reactor room and upon reactor shielding where duct tape has been placed
- 38. graphite stringers l 39. beam ports and plugs
- 40. reactor shielding in particular, 39" paraffin referred to in Application l III/6-5 41.healthphysicssuitcasereferredtoatIV/1-2ofApplication
- 42. control blade drive mechanisms
- 43. control blade logic system
- 44. " poor man's hot cell" referred to in '68 minutes of Campus Radiation Safety Committee, or newer hot cell if one exists 1
- 45. fuel handling eask
- 46. lead pigs used for storage of radioactive materials (such as leaking sources) 1
-- - ~ _
- 47. Firefighting equipment within or near NEL (fire extinguishers, as well as wall-hoses and water mains for firefighting). l l
- 48. boron injection system
- 49. air filters in pneumatic tube system or rabbit room
- 50. HEPA filters
- 51. high level radiation monitor system which activates the scram system.
- 52. radioactivity removal system for emergency situations 53 energency liquid and gaseous emissions hc1 ding tanks
- 54. normal operation liquid and gaseous emissions holding or delay tanks
- 55. emergency core cooling system 56, all missile shields, particularly for control blade drives
- 57. mechanism and procedure by which stuck control blade could be torqued down with a pipe wrench, as per UC response #13 to NRC 2nd set questions
- 58. stock of spare parts for the reactor
- 59. location of specifications for orginal parts for the reactor
- 60. all places where the ALARA requirement is posted or otherwise placed in settings to remind staff and students
- 61. testing equipment for vacuum tubes
- 62. reactor top
- 63. film badge storage place in reception room
- 64. radwaste storage area (s) within NEL
- 65. emergency power (i.e. backup power)
- 66. crane, and mountings for crane, in reactor high lay
- 67. magnet drive v5, fuse F-3, resister R74 referred to in Scram report 76-7 i 68. regulated power supply for Log N and period amplifier i
- i 69. rabbit containment types identified in scram report for July 30, 1979 70, mechanism for bypassing secondary radiation monitor circuitry (as in scramreport3-80.)
71, fluorescent light in log N recorder, as mentioned in 4-80 scram report
- 72. automatic power level controller
- 73. mechanism for clearing inhibit
- 74. mechanism in inhibit which causes reg-rod drive-down response
- 75. shield closures connected to scram system (and mechanism for bypassing)
- 76. linear power, log power, ventilation effluent activity, and secondary effluent water activity recording mechanisms and strip charts 77, thermocouple recording device (i.e. 24 point recorder)
- 78. control rod position displays and console meters
- 79. the precesses conducted by studerits at NEL working for Dr. Kalil on commercial or " extramural" activities that Applicant has asserted have educational values the sample loading, unloading, preparation work, and data reduction and recording from such runs. It would be preferable to observe students actually performing such works simulation or detailed description at the location of each such task would be acceptable.
Conditions for said inspection to be properly undertaken Intervenor requests that the inspection (at least the first three hours of the inspection) within NEL take place while the reactor is not running and while it has not run previously that day. The inspection should commence with the reactor room first, followed by the rabbit room, and control rooms the reactor can run, if so desired by Applicant, af ter first three hours of inspection are over. For purposes of the inspection of certain of the above objects and processes, however, it is essential that the reactor be off and not have run earlier in the day. Intervenor stands ready to discuss and clarify and where necessary modify the requests above so as to avoid unnecessary burden to the parties.
I l
a s In summary, Intervenor requests opportunity for inspection of Applicant's property and objects and processes thereon on two days for two different purposes one to inspect items within the NEL facility itself, and the other to inspect film badge and TLD locations outside NEL. The former, with cooperation from Applicant's staff, should take -
roughly four hours, certainly no more than six. The latter should take roughly two hours, including inspection of location of control film badges. It is requested that a staffperson familiar with NEL be responsible for production of the objects for inspection on the first day arxi someone -
familiar with the locations of past and present film tadges and TLDs be responsible for the second. Intervenor is available to meet and confer with Applicant to attempt to " iron out" any confusion or dispute arising out of this inspection request. Intervenor suggests as dates for the two inspections October 28 (beginning at 10 a.m. ) for the site visit within NEL and any afternoon during the week of October 19 or the following week for the inspection of TLD and film indge lomtions. Intervonor is available to conduct such inspection on a weekend if that is more convenient to Applicant. Intervenor is prepared to discuss other possible dates mutually convenient to the parties i
l Respectfully submitted,
,)
Dated: September 11, 1981 llock Attorney for Intervenor COMMITTEE TO 3 RIDGE THE CAP
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