ML20063M620

Motion to Compel Applicant to Answer 820430 Second Set of Interrogatories.Differing Interpretations of Relevancy Prevent Resolution of Dispute W/O ASLB Action.Proof of Svc Encl.Related Correspondence

ML20063M620
Person / Time
Site:	Perry
Issue date:	09/10/1982
From:	Wilt D SUNFLOWER ALLIANCE, WILT, D.D.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8209150297
Download: ML20063M620 (11)

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00CKETED W W h csPOND g USNRC UNITED STATES OF AMERICA -

• k9 NUCLEAR REGULATORY COMMISSION BEPORE THE ATOMIC SAFETY AND LICENSING BOARD fFg Cg , 3 p ,

In The Matter Of DocketNos50-440b$,Ud Cleveland Electric Illuminating Co. et al 50-441-OL (Perry Nuclear Power Plant, Units 1 &2)

SUNFLOWER ALLIANCE NOTION TO COMPEL APPLICANT TO ANSWER SECOND SET OF INTERROGATORIES

1. Sunflower Alliance Inc., et al., one of the Intervenors in this matter, moves the Atomic Safety & Licensing Board for its order compelling the Applicant herein to answer and respond to the Second Set of Interrogatories filed by Sunflower herein.

2. A Brief is attached in support of this Motion.

Respectfully submitted, d

I[aniel D. Wilt /, Esq.

Attorney for Sunflowe.r Alliance Inc.

P.O. Box 08159 Cleveland, Ohio 44108 (216) 249-8777 PROOF OF SERVICE The undersigned certifies that a copy of this Motion to Compel was sent to all persons on the Service List, on this  ! day of September, 1982.

DaJlU&

Ddniel D. Wilt /[ Esq.

[ Attorney for Sunflower Alliance Inc.

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BRIEF

1. On or about April 30, 1982, Sunflower Alliance Inc. (hereinafter referred to as Sunflower) filed its second set of interrogatories to the Applicant. In August, 1982, answers were filed along with numerous objections.

Counsel for the parties have discussed Applicant's objections and while a few objections were resolved most of the objactions were not resolved. Sunflower believes that both sides have made good faith efforts to resolve the disputes.

However, different interpretatican of relevancy prevent resolution of the dispute except by Board action.

PART ONE--LEGAL DISCUSSION

2. The essential question is how broad is the discovery mechanism provided for under the Commissions Rules of Practice. 10 CFR 2.740. The key

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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 rules p'rovide:

...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 th'e discovery of admissible evidence.10 CFR 2.740 (b)(1).

This means that discovery is available if there is a reasonable relationship between the material requested and the centention.

3. The Appeal Boards have had several opportunities to discuss the discovery rules'in reported decisions. One of the first cases on discovery is In the Matter of Northern States Power Company (Monticello Nuclear Generatina Plant. Unit 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

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r l' by parties, are designed to make affirmative contri-butions to contested administrative proceedings. One l of the areas of discovery is to particularize the areas of contraversy and, within those areas, to focus upon the issues and contentions which must i be resolved in the determination of the case. Another 3 purpose served by discovery is to bring about the

! disclosure of properly producible relevant infor-mation and material... IBID, pg. 392 l

l l 4. Another decision discussing the discovery rules is In the Matter of l Commonwealth Edison Co. (Zion Station. Units 1 and 2), 7 A.E.C. 457 (1974). Here i

the Appeal Board commented as follows:

f' ...The applicable Commission discovery rules are strikingly parallel to the analogous provisions of the Federal Rules 4

of Civil Procedure... The Supreme Court long ago made it

, clear that the deposition - discovery portions of the i Federal Rules 'are to be accorded a broad and liberal

! treatment and that civil trials in the federal courts

) no longer need be carried on in the dark'. Rather, '

i (m)utual knowledge of all the relevant facts gathered

! by both parties is essential to proper litigation. To that end, either oarty may compel the other to disaorne whatever facts he has in his possession... (m)odern instruments of discovery serve a useful purpose...They

, together with pretrial procedures make a trial l'ess a j game of blind man's bluff and more a fair contest with i

the basic issues and facts disclosed to the fullest practicable extent... (emphasis added) IBID. pgs 460-1 1

The Appeal Board concluded in the Zion Station case:

1 ...But despite this discretion and latitude, we think i that the ' broad' liberal interpretation given to the j Federal Rules must similarly be accorded the Commission's j discovery rules. IBID. pg 461.

) Sunflower concludes that discovery should be construed and that the contentions s

should be construed as broadly as this Board concluded in its order dated March 3,1982. .

1 j . 5. Relevance is the key word as it was in Sunflower's first Motion to

] Compel. At that time, Sunflower quoted from the Zion Staticq case. Since that j case discusses the question of relevance, Sunflower again quotes from the i

i case as follows:

3 The rule governing subpoenas...upon which intervenors rely for their discovery, provides that a showing of ' general relevance' may be required. This standard is derived from the language of Section 6(c) of the Administrative Procedure Act, 5USC 555(d). While the words differ some-what 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 court, in construing a discovery request subject to the ' general 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 construed the relevancy standard as allowing discovery in response to a subpoena to be undertaken 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) 4 but also for discovery of evidence, indeed', for leads

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as to where evidence may be located.. 10 CFR 2.740 j ._ : specifically precludes consideration of whether the l material 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 l opposing party but for the benefit of the (board) which i in due course can eliminate those facts which are not to

! . be considered in determining the ultimate issue. In the

! Matter of Commonwealth Edison Co. (Zion rtation.' Units 1

and 2), 7 AEC 457, 461-2 (1974) i Sunflower has the right to discovery any matter that is " reasonably relevant i to the admitted contention". Sunflower has the right to discover " leads as j to where evidence may be located". The narrow interpretation of the Rules and the contentions offerred by Applicant simply has no place in these proceedings I and the Board should end the contraversy for ever by defining relevant. The l

definition of relevance must be broad and must encourage the location of i

facts.

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PART TWO--DISCUSSION OF OBJECTIONS l

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6. This Motion to Compel covers only interrogatories 43 through 87.

l l The answers to this portion of the Second Set of Interrogatories were filed on

August 11, 1982. Pursuant to Hotion made by Sunflower, the Motion to Compel l

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-4 this section of the Second Set of Interrogatories to Applicant must be filed by September 12, 1982. Other answers to other sections of the Second set of Interr-ogatories to Applicant have been filedlet other times and a Motion to Compel Answers to those other sections will be filed at a later time. Sunflower expressly reserves the right to file additional Motions to Compel.

7. The objections to Interrogatories 44 - 47 will be discussed to-gather. Applicant objects on the basis that the interrogatories are beyond the scope of issue one. Sunflower hereby restricts and limits Interrogatory 44 to the emergency operations f acility. As so limited, 44 - 47 are clearly relevant to issue one.

! 8. Sunflower wants Applicant to answer the questions found in Chapter 5 of NUREG-0814. Section 5.1 deals with Integration with Overall Emergency Planning. Section 5.2 deals with location, structure and habitability, etc.

NUREG-0696 states that the EOF shall be the location where the licensee provides overall management of licensee resources in response to an emergency having I

actual or potential environmental consequences. It further states that the licensee shall use the EOF to cordinate its emergency response activities with i those of local, State and Federal agencies, including the NRC. Further, this Board in its August 18, 1982 order stated that the interface between Applicant and offsite personnel is relevant to issue one.

9. Issue one deals with the issue of whether Applicant's emergency evacuation plans are adequate. The EOL is the place where offsite personnel responsible for evacuat, ion shall obtain information frow Applicant who is, af ter all, responsible in the first place for activating the EAL involved. Thus, NUREG-l -

0814 questions as they relate to the EOL are relevant to the contention. The l

location of the EOL is relevant to the contention because offsite personnel must travel to it. The location of the backup EOL is relevant to the contention

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j because offsite personnel must travel to it.

10. Question 47 is relevant because Sunflower has learned that the i

visitor's center of the plant will be located at the EOL. Thus, if the EOL is i

being used substantially for other purposes its usefulness in the event of an 4

emergency may be diminished. As to the definition of " unauthorized". the question seeks to find out if Applicant has designated who and who may not be present at the EOL at any given time. This is relevant because if the EOL has " visitors".

j and an emergency. occurs, the visitors may prevent offsite personnel from entering the EOL and valuable time may be lost. For these reasons, Sunflower asks that Applicant be compelled to answer interrogatories 44 - 47.

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11. Interrogatory 56 is relevant to issue one for the following reasons.

This Board has ruled that issue one is broad. See order dated September 9,1981.

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The questions deals with the source term of radioactive iodine release. If an accident at Perry bypasses the suppression pool and there is a loss of containment t

i integrity, then, radioactive iodine will be released. See NUREG-0772. NUREG-0772 t

j 'also suggests that severe accidents involving core melt dominate the risk to public safety. Evacuation planning deals with limiting the risk to public safety.

1 Thus, if the safeguards listed in the interrogatory are good enough, the risk of radioactive iodine release is lower and this affects emergency planning and l

l the designation of EAL.

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12. The protective actions to be employed depend on the severity of the accident. Potassium idiode use as a thyroid blocking agent is one of the elements of emergency planning. Thus, if the safeguards listed in the interrogatory l

are good enough, the emergency plan is affected. The interrogatory is ' reasonably r,elevant ' to the contention and must be answered.

13. Finally, the objectives of emergency response plans should be to I

provide dose savings for a spectrum of accidents that could produce offsite doses in excess of the PAGs. See NUREG-0396. If the safeguards listed in the

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i are good enough, it should increase dos savings which affects the emergency plan in terms of its EAL. For these reasons, this question should be answered.

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14. Questions 59 and 60 should be answered. In 59, Sunflower wants j to know what are the consequences in terms of dose exposures to the public of the evacuation time estimates set forth in the FSAR. Sunflower believes that the CRAC-2 code does provide this information. If the exposure time set forth in the FSAR will expose the public to greater doses that permitted by the PAGs, then,

] the emergency plan is worthless. This is why the question is relevant.

I 15. In 60, Sunflower wants to know what evacuation time estimates are acceptable to Applicant. Then, taking the time estimates acceptable to i

Applicant, what are the consequences to the public of these set of consequences.

l This question relates to emergency planning because it will provide a realistic assessment of the operation of the plan. Finally, in 59 and 60 Applicant wants 1

j to consider other factors in terms of the source term. Yet, in interrogatory 56 l . Applicant refuses to discuss the source term. Applicant can not have it both ways.

16. Applicant has advised Sunflower to look at the FES for answers to 61 and 62. The FES does show some analysis but only in terms of probabilities.

i Sunflower wants pure numbers not probability estimates for these consequences for releases from BWR-1 to BWR-4 categories. These consequences relate to issue l one because depending on the nature of the release Applicant has discretion to s

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determine what EAL to employ. Emergency planning is to avoid the consequences of 4

releases. If the releases are of sufficient magnitude, it could render the emergency evacuation plan useless. Hence, Sunflower has the right to know what l the releas9s are so that it can plug the releases into the time estimates to 2 -

determine the usefulness of the plan.

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17. Sunflower is entitled to answers to Interrogatories 63 and 64 as they apply to the ingestion pathway EPZ. The ingestion pathway EPZ is an i

} integral part of emer8ency planning.10 CFR 50.47 (a)(10) requires Applicant to 1

1 develope and have in place protective actions for the ingestion exposure path-i way EPZ appropriate to the locale. NUREG-0654 states that an emergen y plan will include elements common to assessing or taking protective actions for i

j both pathways. Interrogatories 63 and 64 deal specifically with these re-quirements which is why the questions are reasonably relevant to issue one.

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! 18. Furthermore, a Petition for Rulemaking has been filed by the l

Citizen's Task Force (PRM-50-31, 47 FR 12639, March 24,1982) which would extend the Plume Exposure Pathway EPZ to twenty (20) miles. It has been known for at least 25 years that reactor accidents can cause serious off-site 4

consequences beyond the present 10 mile radius EPZ. Jan Beyes wrote in 4

! The Bulletin of the Atomic Scientists, December, 1980, as follows:

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) (t) hat early fatalities (death within 60 days) can j occur as far as 20 miles from a reactor is not

! really in doubt...(t)here is a threshold for the i 1 occurrence of early fatalities (approximately 150 I rem to the whole body)...if meteorological

) conditions are unfavorable (low winds, low turbulence,

} and high deposition), threshold doses can extend out beyond 20 miles.

Dr. Richard Webb wrote in The Accident Hazards of Nuclear Power Plants 1

j (University of Mass., 1976) at page 85:

1, j ... extrapolation from WASH-740 (Brookhaven) pre-

) dicts radiation cloud with a maximum lethal range of 60 miles.

The regulations and NUREG-0654 make the ingestion pathway EPZ relevant to I eeergency planning. Thus, Applicant should be compelled to answer the questions.

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19. Question 69 is relevant and should be answered. Applicant may

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i have an assumption of what is acceptable in terms of human life loss and injury I

i as a cost of doing business. If this assumption exists, then Applicant's j emergency planning and emergency action. levels will be based on this

, assumption. This assumption could be downgrading the emergency planning to i

l something less serious than it really is. Sunflower is entitled to this information so that it can determine the realistic effectiveness of the

,. emergency plan.

20. Question 75 should be answered. NUREG-0654 states that Applicant evaluates an emergency situation and then determines what EAL is

} present. Depending on the EAL chosen, this determines what, if anything, i

l Applicant reports to offsite personnel. Thus, offsite planning is not invoked i

j until Applicant determines that it should be invoked. The Board says on page 6 of its August 18, 1982 order "means for advising the public are related to public safety during an emergency and to the admitted contention".

In the Working Draft, Radiological Emergency Response Plan, Lake County DSA, March,1982, Ex. D-11, it appears that before any offsite action is taken the Applicant must make the determination of the nature and extent of emergency and then notify offsite personnel. See attached Exhibit 1.

21. Question 80 should be answered. Sunflower does not believe that the FES answers the question. Applicant's answer doesn't cite anything which would show that the emergency plan has taken into account the consideration of liguid pathway. This question is reasonably related to issue one.

22. Applicant has agreed to answer interrogatory 85 except for anything related to security planning. Sunflower reserves the right to file a Motion.to Compel on this question after receipt of the answer.

23. Applicant has agreed to try to provide a list in answer to Interrogatory 86. Sunflower reserves the right to file a Motion to Compel on this question after receipt of the answer.

24. Applicant has agreed to answer Interrogatory 88 within the limits of this Board's order. Sunflower reserves the right to file a Motion to Compel on this question after receipt of the answer.

Respectfully submittsd, h-65 aniel D. Wilt, Esq.

Attorney for Sunflower Alliance Inc.

P.O. Box 08159 Cleveland, Ohio 44108 (216) 249-8777

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Exhibit D-1. Summary of Emergency Response Sequence AGENCY NOTIFICATION ACCIDENT ASSESSMENT PUBLIC EDUCATION AND INFORMATION 7

O RADIATION EXPOSURE CONTROL Alert 7 PERIMETER CONTROL y S te 7 Emergency MEDICAL AND PUBLIC HEALTH SUPPORT 4

7 Emergen y rot tv NBW NOM KARON

{o Actions

% TRAFFIC CONTROL SECURITY CONTROL Evacuate TRANSPORT CARLESS Time Af ter Start Of Emergency CONFIRM EVACUATION II Food, Water.

OPERATION OF RECEPTION Livestock Control CENTERS

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