ML20082D697
| ML20082D697 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 11/15/1983 |
| From: | Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8311220511 | |
| Download: ML20082D697 (8) | |
Text
.
Novpmber 15, 1983
- UNITED STATES OF AMERICA CiOCKETED NUCLEAR REGULAT.0RY COMMISSION USHRC Before the Atomic Safety and Licensing Board a> NOV 21 di:20 In the. Matter of
)
)
rFF C.: : C'oi CLEVELAND. ELECTRIC ILLUMINATING
)
Docket Nos. $nM5'4:QM siEq.'.
^
2 COMPANY, Et Al.
)
50 h4Pht3
)
(Operating License)
(Perry Nuclear Power Plant,
)
Units.1 and 2)
)
)
MOTION TO REOPEN DISCOVERY ON ISSUES 6, 8,
14, AND 15 Intervenor Ohio Citizens for Responsible Energy ("OCRE")
hereby moves the Licensing Board to' reopen discovery, thereby according full and liberal discovery rights,.as described below, on Issues 6, 8, 14, and 15,.and for any new issues which may be admitted (or old ones readmitted).
I.
Background
. Discovery in this proceeding has been closed for some time.
During the August 13, 1982 conference call, the Board (Tr. 753) set September 30,, 1982 as the deadline for filing discovery requests on Issues 1-8.
During the January 5, 1983 conference call, January 31, 1983 was selected as the cutoff date for 1/
discovery on Issues 13-15 (Tr. 800)T-At the times they were imposed, these restrictions were reasonable.
E.g.,
during the
-August-l'3, 198 conference call, December 1982 was suggested.as
_1/
At Appli' cants' suggestion, the Board further limited the scope of follow-up. discovery, which was to be filed within 7 days of the receipt of the original discovery responses, and which was also limited to strictly follow-up questions.
Tr. 801.
8311220511 831115 PDR ADOCK 05000440 7
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a-a possible hearing date for some-of-these issues.
Tr. 754.
TheEdiscovery restrictions on Issues 13-15 were prompted by a suggestion'that_they might be ready for hearing in May 1983.
Tr. 795-6..
1Now, over a-year has passed since the first discovery
-cutoff date.
It has been almost 6 months since a hearing has j
been-held.
Undoubtedly, hearings on the remaining issues in 2/
this proceeding will not be held f,or many months!
The discovery l restrictions therefore no-longer serve the purposes for which
'dhey were adopted.
The closure of discovery has shackled OCRE by severely limiting its-ability to properly prepare its case.
. Basic. fairness and justice-demand the reopening of discovery.
II.
The Need-for Discovery The Commission (s adjudicatory boards -(as well. as the courts)
. recognize the'importance of liberal pre-trial discovery:
"In modern administrative and legal practice,-pre-trial discovery.is liberally-granted to enable the parties to ascertain the facts in-complex litigation, refine the issues, and prepare adequately for a more expeditious hearing or trial ~."
Pacific Gas and Electric (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038, 1040 (1978), quoted with approval in Pennsylvania Power and Light (Susquehanna Steam. Electric Station, Units 1 and 2)
ALAB-613,'12 NRC 317, 322 (1980).
OCRE would add that liberal discovery rights would aid
- the Licensing Board in fulfilling its obligation to decide the L
r issues _in this. case on the basis of a full and complete record.
Liberal dis'overy is also necessary to afford the parties due c
i 2/. 'Although: the 'NRC Staff has not filed its proposed schedule
' f the proceeding, as requested by the Ecurd, the Staff did, in
'its October 6, 19.83 Response to OCRE Motion to Resubmit Rejected
, Proposed Contention 2, suggest that'the emergency planning issue (Issue' 1)might be ready for adjudicatica "on or after April 1984."
11 (Response at 11.)
OCRE suspects that this is optimistic, as necessary information will not be available by April 1984 on'this eat.JYm_Acym
l process.. Public interest groups with limited. resources like OCRE must,-of necessity,' rely on defensive methods of presenting a.
case - (e.g. f extensive discovery).
In Commonwealth EdisonTCo. (Zion Station, Units 1 and. 2),
ALAE-196, 7 AEC 457 (1974), the Appeal'_. Board further discussed 3
the importance of liberal discovery, and also addressed the. issue germane to this motion ~: whether discovery can be curtailed merely on the basis of the time at which it is sought.
While recognizing-the ' emphasis _the Commission places cxi the expeditious conduct of licensing proceedings, the Appeal Board nonetheless ruled clearly in favor of ' extended discovery, when no delay.would result therefrom:
(J)ust~ as tactics which necessarily result in delay-for-deldy'sisake~are not~to be tolerated, so.too are rulings which preclude adequate access to information without a clear and con-vincing showing-that unwarranted delay is unavoidable.
~
This view.is consistent with that adopted by many courts in the interpretation of'the Federal Rules.
In making discovery
, rulings, courts.'consistentlynhave taken into account whether the
-requested discovery'would, in fact, delay the trial; and where it was not shown that delay would result, the discovery has been permitted -- even where it was recognized that the discovery could
-have been requested earlier.
[ Citing cases.]
7 AEC at 467.
Emphasis in original.
The Appeal Board concluded that where ".the. request for discovery is not untimely under the rules, and where there has Lbeen-no showing that delay will necessarily or even probably result,-it is an abuse of discretion to deny discovery on timeliness grounds. "
Id at 468.
The instant' request clearly meets these criteria.
It is not untimely under the rules.
10 CFR 2.740 (b) (1) sets the time limits on' discovery'.
Discovery cannot begin before the special prehearing' conference of 10 CFR 2.751a and cannot extend beyond the prehearing : conference held p. :suant to 10 CFR 2.-752.
Since
~.
the latter type of prehearing conference has never been held in this proceeding, this request for additional discovery cannot be untimely under the NRC's rules of practice.
Nor, obviously, would it delay a proceeding in which no further hearings have been scheduled.
The particular aspects of this proceeding also. render o
it imperative that discovery be reopened.
New information and data are continuously being generated with respect to the issues in question.
For example, in the area -of hy'drogen control' (Issue 8),
hydrogen ignition experiments on scale models of the Mark III containment have been (1/20 scale) and will be (1/4 scale) conducted by the Hydrogen Contr.ol Owners' Group, to which Applicants belong. See the attached letter, dated September 13, 1983.from M.D.
Houston, NRC, _to Mississippi Power and Light.
Complete and thorough access to this experimental data is necessary so that the Licensing Board will have it in the record and so that OCRE can determine, prior to the hearing on Issue 8, the
~
validity of the data and the extent to which Applicants will rely on it.
OCRE should not be surprised at the hearing by new information which could have been available through discovery, but for the Board's restrictions thereon.
The problem of proprietary information requires the reopening of discovery as well.
Some of the documents concerning Issues 6, 8,
14, and 15 are proprietary.
While non-proprietary versions of these documents are sometimes available in the NRC's Public Document Room, they leave much to be desired.
For example, a document entitled "The CLASIX-3 Computer Program for the Analysis
p of Reactor Plant Cortainment Response to Hydrogen Release and Deflagration" id cle.imed by Westinghouse Electric Corp. to contain proprietary information which is not to be released to the public.
OCRE obtaired the non-proprietary version of this document from the PDR; of the 134 pages in the report, 65 have vital information deleted due.to its proprietary nature.
Some oof these pages are completely blank.. This document is therefore practically useless to OCRE in preparing its case.
This problem
-could easily be solved by reopening discovery, as the full report would then be readily available to OCRE upon the execution of an appropriate protective agreement.
Finally, the Licensing Board's handling of evidentiary
-hearings necessitates the reopening of discovery.
During the May hearing on quality assurance, the Board limited intervenors' cross. examination on the grounds that the questions could have been (but were not) asked during disdovery.
Tr. 1074, 1530-1.
OCRE believes that these rulings were erroneous (see Illinois Power Co. (Clinton Power Station, Units 1 and 2), ALAB-340, 4 NRC 27, 33 (1976)).
Given, however, that the error will probably go uncorrected until appellate review can be invoked, the prudent course is to allow practically unlimited discovery so as not to abridge OCRE's cross examination rights in the future.
III.
Conclusion For all of the foregoing reasons, OCRE proposes that the Licensing Board reopen discovery on Issues 6, 8,
14, and 15.
The discovery should be practically unlimited (as much as is con-
sistent with the NRC's rules of practice) in scope and amount.
No restrictions on follow-up discovery (such as those described 3/
in. footnote.1, supra) should be imposed.
Discovery on-a particular issue should be allowed to continue until 45 days prior to the hearing on that issue; discovery on issues not up for hearing then should continue undisturbed.
Discovery beyond that time should be allowed only if good cause.is shown by the requesting party.
These liberal discovery provisions should also be extended to any new issues which might be admitted (or old issues readmitted) to this proceeding.
Respectfully submitted, Susan L. Hiatt OCRE Representative 8275 Munson Rd.
Mentor, OH 44060 (216) 255-3158
_3/.
Filing follow up discovery requests within 7 days of the receipt of responses is simply not feasible.
Applicants and Staff frequently reference' extensive documents in their discovery responses.
It is not physically possible to obtain and review these documents within 7 days.
Similarly, restricting further discovery-to strictly, follow-up is an unduly harsh restriction to place on.a public interest intervenor with limited resources.
OCRE should not be penalized for not having the personnel and expertise to think of every possible question at the earliest possible time.
']
,g UNITED STATES NUCLEAR REGULATORY COMMISSION 3
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WASHINGTON, D. C. 20656 00CHETED-N USHRC
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SEP 1'3 1983 R 21 2 21 Docket No. :
50-416 0FT!CE 0': sEdti;.8 :
DCCKEimti a SERvia.
APPLICANT:
Mississippi Power & Light Company FACILITY:
Grand Gulf Nuclear Station
SUBJECT:
SUMMARY
OF BWR HYDROGEN CONTROL OWNERS. GROUP (HCOG) MEETING ON JULY 28, 1983 On July 28, 1983, the Mark III Owners Group on hydrogen control (HCOG) met with the NRC staff in Bethesda, Maryland to discuss the concerns.of NRC.
on the.BWR hydrogen control system as described in the ""C letter to Mississippi Power & Light (MP&L), dated July 22, 1983.
At.tendees of the 7
meeting are provided in Attachment 1.
The NRC concer.ns__(. Attachment 2) must be appropriately addressed and resolved to recommend operation afiove full power of its Grand Gulf nuclear plant. The staff reiterated its position at the meeting that the hydrogen control systems are to be based variety of degraded core accidents, including nritigated types of on a accidents and must be capable of handling a 75% metal-water reaction with options.on H2/ steam releases.
Also, our letter of July 22, 1983, questioned the adequacy.of the 1/20 scale testing and the usefulness of the data.
The HC0G recognized the limitations of the test apparatus and agreed to proceed with the proposed 1/4 scale test program.
Results are not expected, however, for approximately a' year.
i In summary, the presentation by HC0G on July 28,1983, ( Attachment 3) provided further information on' the concerns raised by the staff.
HC0G continues to be.lieve that the proposed ignition system will assure equi.pment survivability and containment integrity.
The new information was_ encouraging; nevertheless, i
MP&L'and HCOG mus.t__s.ubstanti_gte much of what was presented at the meeting.
To this end, MP&L=will provide a schedule of activities that need to be performed consistent with the Grand Gulf' schedule fo'r full power operations.
It was evident that other meetings would be needed on key issues before the l
i staff could complete its review on this subject matter.
)
D d.
,~
M. D. Houston, Project Manager Licensing Branch No. 2
~ r s v7 r y o y Division of Licensing Attachments: As stated cc:
See next page
00CKETED I'I I
USNRC g
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'e CERTIFICATE OF SERVICE.
13 NOV 21 All:21 This is to certi'fy that copies of the foregoing were served by Mail first class, postage prepaid erFhiB: u dan., -
depogs t.in the U.S.l m d, w
,19 83 to those on DCb5fT10G'5 SERV;M
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BRANCH service list below.
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. Susan L.
Hiatt SERVICE. LIST Peter B. Bloch, Chairman Terry Lodge, Esq.
Atomic Safety & Licensing Board 618 N. Michigan St.
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.Dr. Jerry R..Kline Atomic. Safety..&.Licen. sing Board.
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