ML20079P914

Response Opposing Intervenor 830429 Motion for Extension of Time.Good Cause Not Demonstrated

ML20079P914
Person / Time
Site:	Clinch River
Issue date:	05/09/1983
From:	Edgar G, Luck W ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8305110220
Download: ML20079P914 (11)

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May 9, 1983 ', 7 , .'

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4 UNITED STATES OF AMERICA 7 w 'b; NUCLEAR REGULATORY COMMISSION y 4p  ;

BEFORE THE -

k're e#8 ~4 8ga Nfgh*g-ATOMIC SAFETY AND LICENSING BOARD p

\g 78 In the Matter of )

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Q 6' UNITED STATES DEPARTMENT OF ENERGY )

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PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537

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TENNESSEE VALLEY AUTHORITY )

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(Clinch River Breeder Reactor Plant) )

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APPLICANTS' RESPONSE IN OPPOSITION TO INTERVENORS' MOTION FOR EXTENSION OF TIME The Department of Energy and Project Management Cor-poration for themselves and on behalf of the Tennessee Valley Authority (the Applicants), hereby respond to Intervenors' Motion for Extension of Time for Discovery, dated April 29, 1983. For the reasons which follow, Applicants respectfully request that Intervenors' Motion be denied.

5 Introduction 1

Over the course of their eight years of participation i

in the Clinch River Breeder Reactor proceedings, Intervenors i have enjoyed the three-fold luxuries of: (1) a constant supply of information from the Applicants and the NRC Staff; l (2) a freedom from any corresponding demand for information i on their part; and (3) an absence of any need to address the 8305110220 830509 PDR ADOCK 05000537 Q PDR ,

E merits of the issues in dispute with finality. Now however, the proceedings have advanced to the point of decision and Intervenors must face the inevitable J

prospect of arriving at a decision on the merits of their j contentions. Although their Motion may well serve as a graceful, anticipatory excuse for their failure to gain

, any real purchase on the merits of these proceedings, it l

cannot serve as good cause for further delay in the hearing schedule. Intervenors have failed to establish any good cause i

for their Motion, and accordingly, it must be denied.

Factual Background on January 5, 1983, Intervenors submitted a proposed schedule to the Board and all parties for completion of the CRERP Construction Permit proceeding in a single phase. That schedule, which was agreed to by Staff and Applicants with minor exceptions, proposed that discovery commence on March 4, f

1983 and close on May 16, 1983. Subsequently on March 7, 1983, Applicants filed a schedule motion with the Board based on the schedule proposed by Intervenors.

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On March 11, 1983, the Board issued an Order revoking ,

the LWA-2 proceeding, setting a single phase of hearings for

, construction permit issues, and opening discovery on all l

admitted contentions as set forth in the Order. Also on March 11, 1983, the NRC Staff issued its Safety Evaluation

! Report and served all parties with copies.

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On March 29, 1983, after considering the various schedules submitted by the parties, the Board established a schedule which provided ample time for discovery and pre-hearing preparation assuming that each party acted with reasonable diligence in preparing its case. The Board's j schedule was, for all practical purposes, similar to the schedule proposed by Intervenors.

Pursuant to the Board's Orders of March 11, 1983 and

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March 29, 1983, all parties engaged in discovery. For their part, Intervenors submitted two sets of interrogatories to Applicants and a request for production of documents. Inter-venors also filed two sets of interrogatories on the Staff and one document request. Both Applicants and Staff also directed interrogatories, requests for admissions and

.l requests for production of documents to Intervenors.

1 Applicants and Staff also updated all previous responses to all of Intervenors' previous discovery relating to the issues in the Construction Permit proceedings.

During the two month discovery period which began on March 11, 1983, Intervenors never objected to the Board's schedule and never conferred with either Applicants or Staff regarding the schedule. Instead, on April 29, 1983, approxi-

! mately 1 months after the commencement of discovery, and after the time for filing discovery requests had passed, Intervenors chose to file their present Motion. Although labeled as a e

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Motion for Extension of Time for Discovery, in fact, Inter-venors seek at ,this late date to delay the entire construction permit schedule.

Intervenors now ignore the fact that the Board's l I

schedule was patterned after their own proposed schedule, and claim that "intervenors have had grossly inadequate opportunity to discover the bases for Staff's and Applicants positions and to prepare our case." In support of this claim, Intervenors offer four arguments: First, Intervenors contend I

that while Staff and Applicants have had " literally years"

to prepare their cases through the PSAR review process, Intervenors were " precluded" from discovery on these issues until completion of the LWA proceeding. Second, Intervenors claim that their discovery was somehow deliberately impeded by Staff and Applicants. Third, Intervenors claim that they have been unduly burdened because they have been required to answer discovery submitted by Applicants and Staff. And finally, Intervenors claim that no party will suffer any prejudice by extending the schedule established by the Board on March 29, t

1983.

l Applicants submit that Intervenors' " arguments" cannot l

! withstand even the most cursory scrutiny. If Intervenors have failed to file sufficient discovery, or to prepare their case, that failure is not the result of the Board's Order but l

! rather the failure of Intervenors to pursue discovery with i

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reasonable diligence. For the reasons which follow, Inter-venors' Motion must be denied.

1. Intervenors Have Had Access To All Technical Information Intervenors' claim that they were " precluded" from obtaining technical information available to Staff and Applicants is a gross mischaracterization. Intervenors have been involved in this proceeding for approximately eight years.

i During that time Intervenors have received the Applicants' PSAR, including all amendments, which is the principal technical document reviewed by the Staff. In addition, Intervenors have routinely been provided advance notices of technical review meetings between Applicants and Staff, and were free to attend any of those meetings. To date, those meetings number approxi-mately 85, and summariesHof all of those meetings were also served on Intervenors. Finally, since the commencement of the NRC review in 1981, the ACRS has conducted approximately 25 meetings. As in the case of the Staff / Applicants meetings, Intervenors were routinely provided advance notice and were r

free to attend.

In addition to the information routinely provided Intervenors through the PSAR review process, Intervenors have conducted discovery of almost unparalleled scope. In the entire j course of these proceedings up to the CP stage, Intervenors filed 19 sets of interrogatories, 10 sets of admissions, and 7 recuests for the production of docunents against Applicants.

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i Intervenors also filed 27 sets of interrogatories, 10 sets of requests for admissions, and 4 requests for production of documents against Staff. Moreover, both Applicants and Staff have fully updated all of their responses to Intervenors' previous discovery requests. Since the issuance of the Staff's SER, Intervenors have filed two additional sets of interrogatories 4

and a request for the production of documents against both Staff and Applicants. And, as candidly noted in Intervenors' Motion, additional documentwtion is available to Intervenors in the NRC Public Document Room.

As is readily apparent, Intervenors have had access to an enormous amount of technical information and Intervenors claim to the contrary is without merit. Intervenors' failures to review this information, attend technical review meetings ,

or file additional discovery in a timely fashion are hardly grounds for delaying this proceeding. Intervenors cannot be permitted to assert their own lack of diligence in preparing l

their case as good cause for their Motion.

2. Neither Staff Nor Applicants Have In Any Way Imoeded Intervenors' Discoverv i

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j According to Intervenors, both " Staff and Applicants have impeded Intervenors discovery efforts." Intervenors' Motion at 3. As to Applicants, Intervenors assert that i

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Applicants refused to deliver basic documents on probabilistic risk analysis and failure mode and effects analysis requested by Intervenors within 14 days, citing the rule allowing 30 days for production of documents.

In making this assertion, Intervenors neglect to point out the following. First, the timing of discovery has been conducted in accordance with the Rules of Practice. 1/ The Rules of Practice provide that responses to interrogatories and admissions are due within 14 days and responses to document requests are due within 30 days of hand service, 10 C.F.R.

S 2.741. Applicants, Staff and Intervenors have responded on this basis since the proceedings were reinitiated in February, 1982.

Second, Intervenors never requested Applicants to provide the requested documents in a period of time shorter than 30 days. Instead, on April 25, 1983, Dr. Thomas Cochran of NRDC contacted counsel for Applicants, George L. Edgar, and inquired when Applicants would respond to the document request.

When informed by Mr. Edgar that the Rules of Practice called for a 30 day response time, Dr. Cochran responded that he was not a lawyer and was not familiar with the procedures. Dr.

Cochran did not request that the documents be made available at an earlier date nor did counsel for Intervenors ever make such a request. In short, there was simply no request made that the documents be made available to NRDC within 14 days.

1/ United States Department of Ei.ergy, Docket No. 50-537, Frehearing Conference Order (February 11, 1982).

l Finally, since the restart of these proceedings, i

Intervenors have continually claimed that they urgently needed probabilistic risk analyses and reliability analyses prepared by Applicants. Yet, when permitted by the Board Order of March 11, 1983 to request these analyses, Inter-venors chose to wait until April 7, 1983, or nearly one month after discovery had opened, to submit a request to Applicants.

l Thus, any imagined harm which Intervenors believe they have j suffered is due solely to their own delay in submitting discovery requests. Had intervenors acted with the diligence expected of all parties to this proceeding, their document request would have been filed in sufficient time to permit ,

follow-up discovery.

{ Little need be said regarding Intervenors ' claim that Staff has somehow impeded Intervenors' discovery. Intervenors' charge is that documentation underlying the SER is available in the PDR in Bethesda "obviously limited to only normal work-ing hours." Contrary to Intervenors' apparent belief, the NRC

, need not rearrange its entire organizational time schedule to I

i accord with the convenience of Intervenors. Applicants also note that Intervenors make no claim that they conferred with NRC Staff in an attempt to arrange different times to review these documents as required by the Order in Comanche Peak. 2/

l 2/ See for example, United States Department of Energy, Docket 50-537 Order Denying Motion to Compel Discovery (June 30, 1982).

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3. Intervenors' Discovery Burdens Are In' sufficient Cause to Del'ay This Proceeding Intervenors argue that because Applicants and Staff have exercised due diligence and filed discovery in accordance with the Board's Order of March 11, 1983, Intervenors are thereby absolved from exercising the same due diligence in filing discovery requests. According to Intervenors, because the Staff and Applicants have filed discovery requests against them, they have had insufficient time to prepare their own discovery.

It should be noted that neither Applicants nor Staff initiated any discovery against Intervenors until April 1 and 8, 1983 respectively. Thus, Intervenors were not burdened by any discovery demands-during the entire month of March.

Yet, for their own reasons, Intervenors waited until April 7, 1983 to file any new discovery. Intervenors also fail to address the fact that discovery requests could easily have been prepared prior to March, 1983. Indeed, after filing their proposed findings of fact, Intervenors had six weeks to prepare discovery for filing on March 11, 1983.

It should also be noted that Intervenors have filed a total of four setr of interrogatories on Staff and Applicants.

If these interrogatories are insufficient to permit Intervenors

G prepare their case, the cause of that insufficiency is due entirely to Intervenors' piecemeal approach to discovery. 3/

Finally, the burden on the Intervenors is not so great as they assert in their Motion. Intervenors have withdrawn Il

. a large number of their contentions leaving essentially only three issues: First, whether a core disruptive accident should be a design basis accident (Contentions 1 and 3d);

i second, whether the analyses of core meltthrough are adequate (Contention 3c); and third, whether Applicants' emergency plans adequately take into account core disruptive accidents (Contentions 9c and 9g). As the number of matters at issue

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have narrowed, Intervenors' burdens have substantially decreased. ,

i 4. Applicants .Will Be Prejudiced By A Delay In The Schedule I

In addition to the fact that Intervenors have failed to demonstrate any good cause for disregarding the Board's schedule, l

l 3/ In their Motion, Intervenors claim that Applicants' depo-sition of Dr. Cochran will impact their ability to prepare responses to Applicants' outstanding discovery requests.

Applicants note that they volunteered and Intervenors agreed tc reschedule Dr. Cochran's deposition from May 5 and 6, 1983 to May 13, 1983 in order to allow Intervenors sufficient time to respond to Applicants' discovery requests. In addition, Applicants committed to complete Dr. Cochran's deposition in one day.

4/ Intervenors have recently withdrawn Contentions 2f, g, and E, 9a , b, d, and e, 10, and lla. As a result of these with-drawals, Intervenors were relieved of their burden to respond to a large number of interrogatories and requests for admissions filed by Staff and Applicants.

4 should that schedule be delayed, Applicants will be severely prejudiced. Applicants are presently engaged in site prepara-tion work and anticipate completion of that work in December of 1983. The present hearing schedule adopted by the Board pro-vides a reasonable basis for completing hearings in July of 1983. This, in turn, would provide barely sufficient time for 1

a decision on the Construction Permit and immediate effective-ness review, before the completion of site preparation. The additional unwarranted delay urged in Intervenors' Motion would virtually assure a discontinuity between the completion

of site preparation and the start of safety-rclared construction, and a corresponding delay in the project completion date. Such a delay would clearly contravene the public interest, United States Department of Energy, CLI 82-23, Memorandum and Order (August 17, 1982).

Conclusion For the reasons stated above, Applicants respectfully request that Intervenors' Motion he denied.

Respectfully submitted, hdW$6 sorge L. Edgar

, 4 f]W1 Attorney for Project Management Corporation f 2 7 . L d.

William D. Luck Attorney for the U. S.

Department of Energy 6

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