ML20054H759

Motion & Supporting Brief for Order Compelling Applicant to Answer Sunflower Alliance First Set of Interrogatories.Scope of Discovery to Be Construed Broadly.Proof of Svc Encl

ML20054H759
Person / Time
Site:	Perry
Issue date:	06/21/1982
From:	Wilt D SUNFLOWER ALLIANCE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8206240402
Download: ML20054H759 (8)

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$ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION t :"r-r-BEFORE THE ATOMIC SAFETY & LICENSING BOARD In the matter of Docket Nos,, 50-4'f 0;2 Cleveland Electric illuminating Company et. al. 'C2. U. ; ; 50-441 (Perry Nuclear Power Plant, Units 1 & 2) (Operating License)

Sunflower All_ lance _I nc. . _et. al. _

Moti_on to _ Appl _icant _to _ Compel Di_scovery 1 Sunflower Alliance Inc. et. al., one of the intervenors in the matter, moves the Atomic Safety & Licensing Board for its order compelling the applicant herein to answer and respond to the First Set of interrogatories filed herein. R 2 A brief is attached in support of this motion.

Respectfully submitted, I {p Daniel D. Wilt Attorney for Sunflower Alliance, Inc.

7301 Chippewa Rd.

Brecksville, Ohio 44141 i (216) 526-2350 I

Proof of Servi _ce The undersigned does hereby certify that a copy of the herein Motion toCompelhasbeensenttoalipersonsontheServiceListonthis _

_ day of <MI//- ., 1982.

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B2 aniel D. Wilt B2 6 050g {ph ttorney for Sunflower Alliance, Inc.

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- BRIEF

1. On or about December 2, 1981, Sunflower Alliance Inc., et. al. filed its first set of interrogatories specifically directed to the Applicant. Three separate telephone discussions between counsel for Sunflower and counsel for Appilcant were conducted in order to resolve (or try to resolve) certain issues dealing with discovery. On or about February 5,1982, Applicant filed its first set of responses. On March 24, 1982, a letter was sent to Counsel for Applicant requesting Counsel to reconsider the numerous objections and non-responsive answers that were filed. On March 25, !!bi, another telephone conference was held to resolve the dispute. For the most part, counsel have been unable to resolve the disputes and this Motion becomes necessary. Intervenor believes that every effort has been made to comply with this Board's July 28, 1981 order of discovery,

2. The essential question is how broad is the discovery mechanism provided for under the Commission's Rules of Practice. 10 CFR 2.740. The key element limiting discovery is the term " relevant". Generally, a party may seek discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the proceeding. Further, the ruled provide:

...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) '/

3. The Appeal Boards have had several opportunities to discuss the discovery rules in reported decisions. One of the Just cases is on the_ Matter of_ Northern States Power _ Company _(Monticello_ Nuclear Generating Plant, Un i_t 1), 4 A.E.C. 390 (1970). Here the Appeal Board issued several general comments on discovery:

...These discovery provisions, if used in good faith by parties, are designed to make affirmative contributions to contested administrative proceedings. One of the areas of discovery is to particularize the areas of controversy and, within those areas, to focus upon the issues and contentions which must be resolved in the determination of the case. Another purpose served by discovery is to bring about the disclosure of properly producible relevant information and material....

l_ Bio, pg. 392.

4 Another decision discussing the discovery rules is in the Matter of Commonweal th Edis_on Co. (Z_i_on Station. Units _14_2)_, 7 AEC 457 (1974) . Here the Appeal Board commented as follows:

...The applicable Commission discovery rules are strikingly parallel to the analogous provisions of the Federal Rules of Civil Procedure...

The Supreme Court long ago made it clear that the deposition - discovery portions of the Federal Rules 'are to be accorded a broad and liberal treatir.ent and that civil trials in the federal courts' no longer need be carried on in the dark.' Rather, '(m)utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.

• s o that end, either party may compel _t_he other _to discorce whatever facts he has_in hi_s possession... (m)odern instruments of discovery serve a useful purpose... Thee together with pretrial procedures make a trial less a game of blind mN bluff and more a fair contest with the basic issues and facts _di_scl_osed to _the fullest practicabl_e extent.._,

(emphasis added) 1810,,8 pgs 460-1 The Appeal Board concluded in the ZI_on_Sta_ti_on case:

...But despite this discretion and latitude, we think that the ' broad',

liberal Interpretation' given to the Federal Rules must similarly be accorded the Comission's discovery rules. 183 , pg 461.

Sunflower concludes, therefore, that discovery should be construed by this Board broadly as this Board apparently intended in its order dated March 3,1982.

5. The issue of relevance raises its ugly head because this is Applicant's essential reason for not answering Sunflower's interrogatories. The question of a definition of relevant has also been discussed by the Appeal Board in On_th_e Matter _of _C_ommonweal th Edison Co _(Z_lon _ Station. Units _1 & 2)_, 7 AEC 457 (1974) .

The Appeal Board wrote:

The rule governing subpoenas...upon which Intervenors re*/ for their i

discovery, provides that a showing of ' general relevance aay be required. This standard is derived from the language of Section 6 (c) l of the Administrative Procedure Ace, 5 U.S.C. 555 (d) . While the words dif fer somewhat from the ' relevance' standard appearing in Rule 45 of the Federal Rules, courts do not appear to have accorded a different scope to the discovery which they encompass...where the l court, in construing a discovery request subject to the ' general I

relevance' standard, evaluated documents in terms of whether they were ' reasonably relevant to the proceeding. '...in any event, in according a broad and liberal treatment to the rules, courts have long l construed the relevancy standard as allowing discovery in response to l

a subpoena to be under taken unless it is ' palpable that the evidence sought can have no possible bearing on the issues'... Discovery may be had 'not merely for the purpose of producing evidence to be used at the (hearing) but also for discovery of evidence, indeed, for leads as to where evidence may be located.. 10 CFR ! 2.720 specifically

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pr:cludss c:nsidarotion cf whether the noterial sought will be admissible in evidence. in short, the rules call for every relevant fact, however remote, to be brought out for the inspection not only of the opposing party but for the benefit of the (board) which in ~

due course can eliminate those facts which are not to be considered in determining the ultimate issued. ,!,8,,! 0, pg s . 461 - 2.

Thus, it's clear that this Board must construe the term relevant in the broadest sense. Relevancy is not to be constued in the narrow, almost paleozoic, manner proposed by Applicants. Rather, any information possessed by Applicant, unless it is privileged, that is remotely connected with the contention, even if not admissible, is discoverable. With this test in mind which is sanctioned by the M

Appeal Board, let us review the Sunflower's Interrogatories & Applicant's responses.

6.- Sunflower's first question was not answered. FSAR Appendix 13 (a) is merely a ta' ale, it is not a demonstration that the plume exposure pathway EPZ &

the ingertion exposure EPZ have been established with the consideration set forth in the question. Sunflower asks that Applicant be compelled to answer the question.

Further, Applicant objects to the interrogatory concerning the ingestion exposure EPZ as irrelevant. The question is based on 10 CFR 550.33(g) and 10 CFR $50.47 (c) (2) . The regulations call for consideration of both the plume exposure pathway EPZ and the ingestion exposure pathway EPZ. The regulation

• require considerations of both on-site as well as off-site planning. 10 CFR 50.47 (a)(1)

The nexus between the question and contention One is clear. The question deals with the capabilities of local organizations to meet emergencies and how this ability was factored into the Ingestion exposure EPZ & plume exposure pathway EPZ. This is a part of (or at least should be a part of) Applicant's emergency evacuation plans. Further, consideration is being given (47 F.R.12639, March 24, 1982) to extending the plume EPZ to 20 miles. Simply put, Applicant has not answered interrogatory #1 and Sunflower desires this Board to compel Applicant to do so.

Sunflower asks that Applicant answer interrogatories 3 & 4 when they

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obtain the information requested.

8. -Intarregotcry #5 csks for o demonstration that ecch cf the planning cnd evaluation criteria in NUREG-0654, Rev. I have been met. Clearly, Applicant's response does not answer the interrogatory. Referring to a cross reference that lists the criteria does not answer the question. Sunflower asks for an order compelling Applicant to answer the question.

9. Interrogatory 6 has not been fully answered. As stated above, this Board should follow a broad standard in discovery and should reject Applicant's l narrow, confined view. To the extent Applicant has not answered the interrogatory, Sunflower requests an order from this Egggf compelling Applicant to answer interrogatory #6,

10. Interrogatory 7 (c) has not been answered. Based on the discussion above as to the scope and breadth of discovery, Sunflower requests an order from this Board compelling Applicant to answer interrogatory 7 (c).

11. Applicants object to interrogatory #8 on the grounds of relevance to contention 1. As set forth above, this Board should adopt a broad discovery standard.

Example initiating conditions are specific events which cause the declaration of one of the four classes of emergency. Such initiating conditions include: fuel damage indication; loss of offsite power; a tornado on site; fires; instrument readings outside of the manual range, etc. These initiating conditions are the first step in assessing and declaring an emergency. Only then can the utility notify offsite officials about the emergency. For example, the NRC response to any l

notification from a licensee will be related to, but not limited by, the licensee j estimate of severity. See NUREG-0654, pg.1-3.

12. Further the NRC itself asked a similar question concerning emergency planning dated December 21, 1981 at page #6 related to the criterium, Emergency Classification System of NUREG-0654. Based on law and fact, interrogatory #8 should be answered and Sunflower asks that Applicant be compelled to do so.

13. Clearly interrogatory #9 is relevant as that term is defined by the Appeal

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Board. The declaration of site emerg ncies is directly related to contention one.

Sunflower asks that Applicant be compelled to answer interrogatory #9 14 Sunflower assumes that Applicant will answer Interrogatory #10 when the information is available.

15. Sunflower assumes that Applicant will answer interrogatory #11 when the information is available. Sunflower asks 'that Appilcant be compelled to answer the last sentence in the interrogatory. This part of the interrogatory is not affected by the recent amendments to the NRC Rules of Practice on financial viability of utilities. The question relates to the financial viability of Applicant's plan

& not the financial viability of the utility.

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16. Sunflower assumes that Applicant will answer interrogatory #12 when the information is available. Sunflower further requests this Board to order Applicant to answer the entire interrogatory notwithstanding Applicant's objection.

17. NUREG-0654 requires licensees to have meteorological monitoring equipment to assess the impact of radioactive releases and to aid in the implementation of emergency response decisions (pp 2-1 and 2-2). Criterium E.4.g. also requires licensees to notify offsite authorities about meterological conditions. The licensees are to provide projected doses for offsite areas using this data.

Obviously, all meteorological instrumentation should meet the appropriate standards and not be vulnerable to the adverse environmental conditions postulated in the interrogatory. Based on this and the bread discovery standard outlined above, Applicant should be compelled to answer interrogatory #14

18. Based on the broad discovery standard set forth above, interrogatory #15 should be answered. The interrelationships between the contention and the interrogatory is clear on the face of the interrogatory.

19 Sunflower asks that this Board compel Appilcant to answer interrogatory

1. 18 for the reasons set forth in our request to compel the answer to interrogatory #1.

20. Applicant clearly has not answered the questions (#19) and should be compelled to do so. To the extent that an ' objection has been imposed, Sunflower requests that this Board, based on the broad discovery standard set forth above, overrule the objection and compel Applicant to answer the interrogatory number 19

responded by ruling that the issue is not yet ripe, but that discovery could be done beyond the stop work order.

Applicant refuses to yield from its viewpoint, so Sunflower asks for a definite ruling permitting discovery on quality assurance beyond the February 1978 stop work order so that this issue can be rephrased for possible inclusion as a contention.

'29.

For the reasons set forth above as to the scope of discovery, Sunflower requests Appilcant be compelled to answer interrogatories #63 and #64 The question is whether it is worthwhile to Install an automated SLCS. To answer this b

question, the Board should consider the consequences of ATWS. Thus, the interroga-tories should be answered.

30.

For the reasons set forth above as to the scope of discovery, Sunflower requests that Applicant be compelled to answer interrogatories #67, #68, #71 and

1. 73. As to interrogatory #72, the word foam should be boron & we ask that Applicant be compelled to answer the question.

f Respectfully Submitted, I E

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Daniel D. Wilt [

Attorney for Sunflower Alliance, Inc.

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