ML20083N285
| ML20083N285 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 01/28/1983 |
| From: | Guild R GUILD, R., PALMETTO ALLIANCE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8302010610 | |
| Download: ML20083N285 (28) | |
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UNITED STATES OF MERICA [ ,_
NTLFAR FHUMORY OCeHISSION j J/gl3 21 1 DS3 BEF0FE THE A70MIC SATT'Y ND LICFNSING Om 7'
In the Matter of 05m- g
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DUKE POWER COMPANY, et al. Docket Nos. 50-413 50-414 (Catawba Nuclear Station, January 28, 1983
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Units 1 and 2) )
PATNF1TlD NLIANCE br/CION TO COMPEL DISCOVERY AND SUPPLEMENT 70 }UTIONS TO COMPEL DISC)VERY Pursuant to 10 CPR Sections 2.740(f), 2.744 and the Board's reno-randum and Order of Deced:er 22, 1982, Intervenor Palmetto Alliance hereby moves to cmpel discovery frm the Apolicants with respect to its contentions No. 6, 7, 8, 27 and 44 which have been admitted for litiaation in this proceeding, supplements and renews its motions to acrpel filed October 4 and Novmber 3,1982. Palmetto Alliance specifically moves for an order overruling objections, denying motions for protective order and cmpellino discovery from the Applicants regarding their inadecuate Responses dated Decenber 31, 1982, to Interrogatories and Requests to Produce on Palmetto Contentions 6, 7 anc' 44; .
As directed by the Board in its Decenber 22, 1982, Mertorandun and Order, Slip Op. at pp. 20 and 21, Palmetto Alliance hereby also supplanents and renews its Motions to Cmpel dated October 4,1982, and Novenber 3,1982 regarding Applicants' Responses dated SeptErber 22, 1982, on Palmetto contentions 8 and 27, As so directed Palmetto will herein 8302010610 830128 PDR ADOCK 05000413 O PDR
endeavor to address each interrogatory object.ed to or to which Applicants wre unresponsive, " including consideration of the objection to it, point by tedious point." Id, p.20.
At the outset, however, Palmetto urges upon the Board several general observations. For a non profit citizen's cruanization such as Palmetto Alliance participation in this licensing proceeding to protect the acknow-ledged interest of its manbers requires considerable sacrifice of time and very limited financial resources. While the Board sugcests that the retention of experts and the taking of depositions are superior devices to written interrogatories for development of our case, it properly recognizes the additional expense to an intervenor entailed in the use of such litigation tools. Written interrocatories and the production of documents are the least costly and therefore most available means of obtaining evidence known to be in the hands of another party. Here, each of the contentions admitted for litigation questions the design, construction or operation of the Catawba facility by its designer, constructor and operator. In each instance the detailed, cmplex and highly technical evidence needed to prove c
or disprove the intervenor's contention is likely to be only in the hands of the Applicants who seek to license the plant or the NPC Staff which bears responsibility for its licensing and regulations and for similar facilities under its jurisdiction. Effectively then, an intervenor in Palmetto's position, must find proof for its case frun the " mouths" (or records) of its adversaries if it is permitted to find such proof at all.
In such a posture a natural incentive exists for the party in possession of evidence of use to its adversary to resist its disclosure or production.
Here, incentives are present for the Applicants and Staff to resist respon-siveness to the intervenor's discovery both because the disclosure of such evidence is against their interest and because the intervenors' lack of l
resources make then particularly vulnerable to the paper " war of attrition" l
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f :
L waged by interposing myriad objections provid2ng only inccrnplete or evasive answers, requiring the searchina and examination of inacessible and volum-inaus documents, and - as here - the burden of seeking responsivenesc in oostly and time consuming efforts to ocripel such production " point by tedious point." Pahnetto Alliance asks this Board's protection frcm the urdue handicaps of such a posture and disparity of resources between it and its adversaries. Neither fairness to the parties nor the just reso-lution of these health and safety issues is served by the imposition of such handicaps.
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l APPLICANTS' RESPONSES 'IO " PAIFSPDO ALLIANCE ~
FIRST SET OF JNfERROGA'IORIES AND REQUESTS
'IO PRODUCE" AND "PAIETIO ALLIANCE THIRD SET OF INTERROGA'IORIES AND REQUESTS 'IO PRODUCE" (REGARDING CONTEDTTION 44).
December 31, 1982 Palmetto Alliance naves to cmpel di.acovery frcn Applicants, and urges that objections and the Motion for Protective Order served with the above-entitled response, dated Decenber 31, 1982, be overruled. Applicants' Response and Motion for Protective Order relate to Palmetto contentions ,
6, 7, and 44.
GENERAL INTERROGA'IORIES Pahnetto poses four general interrogatories to the Applicants prior to setting forth the specific interrocatories on each contention. In order these seek (1) identification of the persons answering each specific inter-rocatory, (2) witnesses to be called to testify on each contention, (3) the description of any calculations underlyino Applicants' position on the contention, and (4) identification of any ccmuunication in oral or written -
form underlying Applicants' position on the contention. These general <
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interrogatories are identical to the " General Interrogatories" posed by Applicants own discovery to Palretto and CBSG, but for the editorial mod-ification necessary to address "your position on the contention" in place of "the contention" as originally framed by Applicants. Curiously what is good for the " goose" is apparently not good enough for the " gander."
Applicants have failed to respond to General Interrogatories No. 3 and 4.
Asserting that Interrogatory No. 3 is sanehow "not applicable,"
Applicants - rot too helpfully - volunteer to respond if Palmetto Alliance identifies "such calculation" buried sanewhere "in the appropriate section of Applicants' Application, Final Safety Analysis Report, Environmental Report" etc. If they know of a calculation on which their " position on the contention" is fared, Applicants should provide the information regarding it as sought by their own Interrogatory No. 3.
Applicants object to their own question in General Interrogatory No. 4 seekirc identification of oral or written comtunication on which "your position on the contentions is based." 'They recast the question as seeking solely records "regarding Applicants' legal cosition" on the contentions to which they assert an unparticularized and absolute privilege not only from production but also fran identification or "itenized listing." While they sean to recognize that the Board obligated Palmetto Alliance - and therefore presumably Applicants as well - to " provide a list of the specific documents, correspondence, and comunications as to which a claim of privi-leae is being asserted, and an explanation of why the privilege applies to each," Response, at p. 13, the decline to do so on the basis of the " attorney work-product doctrine," and "because comunications and documents reflecting
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the bases for their psitions on these contentions were ongoing until the time ne Response was filed." Offerina to file such a list by " February 1,1983,... if the Board believes that an itanized list is necessary, Applicants force Palmetto " point by tedious point" to ocr1pel what they already understand
is a proper and responsive answer or objection to this interrogatory.
Palmetto recognizes that the Rules of Produce,10 CFR Section 2.740(b) (2),
and decisional authority, Hickman v. Tavlor, 329 V.S. 495 (1945) , protect
" mental impressions, conclusions, opinions, or legal theories of an attorney" against disclosure, but not facts or evidence which are otherwise discxw-erable. We ask that the Applicants be ocsupelled to provide a responsive answer and particularized objections.
SPECIFIC INTERBOGATORIES CONTENTION NO.6 As recast in the Board's Decernber 1,1982, Order Slip Op. at p. 5, Palmetto Contention No. 6 was admitted as fol!aws:
Because of systm atic deficiencies in plant construction and cxxnpany pressure to approve faulty workmanship, no faulty workmanship, no reasonable assurance exists that the plant can operate without endangerina the health and safety of the public.
The Board went on to characterize the contention as now recast:
The thrust of this Contention is primarily toward alleaed ccrupany attitudes and practices; proof of this Contention, pre-sumably involving specific instances of misfeasance need not be adduced at this stage.
ld.
Palmetto Alliance originally served interrogatories upon Applicants
! April 20, 1982, regarding Contention 6 as previcusly admitted by the Board subject to the condition that it be made more specific through initial discovery. Upon Applicants' request the Board suspended discovery by Order of May 25, 1982, pending their appeal. While Palmetto did respond on April 28, 1982, to Applicants' discovery regarding Palmetto Contention 6, !
Applicants' response to these interroaatories and recunsts by Palmetto was -
1 not made until Deceber 31, 1982, as a result of the Board's Dec eber 1, 1
1982, Order admitting Palmetto 6 as recast and directing the resumption l of discovery on this subject.
Interrogatory 1.
This question secks to elicit Applicants' position on the relationship between its Quality Assurance procram, Ccmnission GA standards as enunci-ated in Appendix B to 10 GR Part 50 and its entitlement to the licenses it seeks in its Application. Of course a quality assurance program is in-tended to " provide adeauate confidence that a structure, systs, or cmpo-nent will perform satisfactorily in " service," 10 G R Part 50, Appendix B.
Through systes of Quality Control, includina inspections, audits and approvals of work on the facility the reauirments of a GA procram pro-vide the necessary link between regulatory recuirments and the actual performance of the facility as built. Deficiencies, derelictions and mis-feasance by Applicants in their implmentation of a quality assurance pro-gram potentially impuan the degree of confidence that the plant will operate in a manner adeauate to protect the public health and safety.
Applicants object to answerina this interrogatory as " irrelevant,"
serving "no substantial purpose" and calling "for a legal conclusion un-related to the facts." Response, pp. 14 and 15.
10 CFR Section 2.740 (b) (1) permits parties to obtain discovery through use of written. interrocatories and other devices regarding any natter, 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 the claim or defense of any other party ...
Interrogatory 1 seeks to elicit Apolicants position on this potential claim by Palmetto that cx2npliance with t a Ccanission's 10 CFR Part 50 l Apppendix B QA criteria is a prerequisite to entitlenent to the licenses sought and a responsive answer should therefore be ocutelled.
Interrogatory 2. .
Wis question follms frm a negative answer, in whole or part, to Interrogatory 1, and seeks a description of the respects in which empliance with the Ccmission's OA criteria is not required, in Applicants view, and the " factual and legal basis" for their position. Applicants' answer:
"See response to Interrogatory 1." A responsive answer should be a:xnpelled for the same reasons stated above in support of the first question.
Interrogatory 4.
The question seeks identification of the bases for the three pr W ing responses. Applicants reassert their objections to identifying oral ccm-munication as asserted in response to General Interrogatory No. 4, and Palmetto reiterates its argument here as made above. Palmetto asks that Applicants be required to respond to this " basis" question nore fully in light of the further answers to be cmpelled to Interrogatories 1 - 3.
Interrogatory 5.
This cuestion seeks Applicants' position on the relationship between substandard workmanship and plant performance and is objected to:
" Applicants are unable to respond." Response, p. 16. They assert that the auestion "does not seek disclosure of factual matters within their knav.-
ledge or control." It reains unclear frtm Applicants response whether, in truth, they " don't know: the answer, or whether they know but refuse to respond subject to the objection. If they don't know they shrmld say so,
but Palmetto is entitled to elicit Applicants' rosition on this " claim or defense" for the reasons stated in regard to Interrogatory 1, above.
Interrogatory 6.
This question calls for Applicants' position on the relationship between the failure of safety related systems and the risk to the public in the event of accidents. It is objected to for reasons substantially the same as those given with respect to Interrogatory 5, and Palmetto reiterates the arguments made and referenced above.
Interrogatory 7.
This question follows and is prenised on a negative answer to questions 5 and 6. It should be answered in light of the responses ccupelled to those questions.
Interrogatory 11.
This question calls for the bases for answers to interrogatories 5 - 10.
Applicants object to identifying oral ccumunications asserting the grounds set out with response to General Interrocatory No. 4. Palmetto directs the Board attention to its aruument on that cuestion above.
Interrogatory 12 and Interrogator 3 13 These questions seek, respectively, identification and description of 10 CFR Section 50.55 (e) design and construction deliciencies, and identifi-
, cation and description of those deficiencies which represent "a significant i
breakdown in any portion of the Quality Assurance program."
In response Applicants list only Significant Deficiency Report No. 5 and dates "for construction at the Catawba Nuclear Station," require Pal-metto to examine the reports at their offices in Charlotte to ascertain scue part of the information sought concerning these deficiencies, object to pro-
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viding the additional information sought by Palmetto regarding these
deficiencies, and object to providing any identification or description of Quality Assurance program deficiencies at their other facilities or involving their contractors.
With respect to that portion of Interrogatory 13 seeking information regarding Duke experience at its facilities other than Catawba and the experience of Duke's contractors, within the knowledge of Applicants, the ouestion extends only to deficiencies representing a "significant breakdown in any portion of the Quality Assurance proaram" conducted pursuant to NRC regulations.
As recast by the Board Palretto contention 6 asserts " systematic de-ficiencies in plant ccnstruction" the thrust of which "is primarily toward alleged cmpany attitudes and practices," and proof of which involves
" specific instances of misfmance," Board Order of Dw Jer 1, Slip Op.
at p. 5. Since it is the effective implementation of a Quality Assurancce program which is designed to syst matically " provide adequate confidence that a structure, system, or ccauponent will perform satisfactorily in service,: 10 CFR Part 50, Appandix B, it is just such significant defi-ciencies those programs which best evidence ocznpany attitudes practices, and instances of misfeasance likely to result in systmatic deficiencies in plant construction itself. The experience of Duke at its contractors with significant Quality Assurance program deficiencies both at Catawba and elsewhere is clear]y relevant, discoverable and should be ccmpelled.
Applicants object further "to providina the specific information called for ... beyond that listed in the Significant Deficiency Reports thenselves," Response at p. 23, as unduly burdenscne, without any further I particularization of the nature of the information not provided or the basis for the asserted burden, leaving Palnetto to guess at the extent of its
actual knowledge or the degree of burden of production. Applicants should be required to particularize the basis for objection if it is to be cred-ited at all.
Finally, Applicants object to providing any information whatsoever in response to the Interrogatories beyond the listing of reports by number and date. As explained in our general observations made earlier in this pleading every roadblock placed by Applicants in intervenor's path makes participation in this proceedine nore difficult and oostly and the proof of intervenor's Contentions artificially more burdensme. Applicants blithely assert:
(T)he Burden of deriving that information frm the specific reports would be substantially the same for Palmetto Alliance as for Applicants.
Response, at p. 22. Such a claim icnores wholly the disparity of resources between the Duke Power Cmpany and this laruely volunteer citizen organi-zation, the superior knowledge of the Applicants regarding their own practices and records, and the difficulty in time, distance, and expense reauired of Palmetto to search Duke's reco!.ds for the answers to these questions. Applicants should be required to answer the questions as asked, or at the very least to identify specifically to precise doctanent, or portion thereof, containing each answer and to supply at Applicants' expense a oopy of each such document to Palmetto if Applicant chooses to provide a document in lieu of a responsive answer.
Interrogatory 14.
This cuestion relates to the impicmentation of the audit criterion of the cxxrtission rules for quality assurance by Applicants and seeks identi-
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fication and description of audits which reflected deficiencies. Applicants provide only a list of audits by number, general subject and date, refuse
to provide further information concerning the nature of the deficiencies disclosed, assert that the " major part of the information sought: is in each file without further particularization and assert the same objections as interposed in response to Interrogatory 12 and 13. Applicants should be cmpelled to respn1 for the reasons and in the manner asserted as addressed above regarding Interrogatories 12 and 13.
Interrogatory 15.
This question seeks description by Applicants of reviews condu~ted by the Cartission Staff of its Quality Assurance program and that of its prin-cipal supplier Westinghouse including a description of a specific review referenced in the CP-SER. Applicants object on the grounds of burden and expense, asserting that they have "no discrete set of records, as it must, only that information known to Applicants through the exercise of sme diligence, they should be required to answer if they know and par-ticularize their assertions of burden.
Interrogatory 16.
To this question regarding selection, training and testing of Quality Control Inspectors at Catawba Applicants assert that Palmetto should inspect a Duke document on the subject which will " permit it to locate and identify, as readily as can Applicants, the information sotsht." Response, c. p. 30.
Palmetto reasserts the same argunent and request made above with respect to Interrogatories 12 and 13.
Interrogatory 17 Interrogatory 18 and Interrogatory 21.
Applicants identify documents in their possession the inspection of which will permit Palmetto "to locate and identify, as readily as can I
Applicants, the information sought." Response at pp. 31 and 36. Palmetto reasserts the same arguments and requests made above with respect to Inter-rogatories 12 and 13.
Interrogatory 22.
This cuestion seeks identification of persons enployed at the facility in the areas of Quality Assurance and Quality Control. Applicants object initially on grounds of relevance, and further on the basis of an asserted ccinpany policy of nondisclosure and the need to protect thanselves and the subject employees frtra "erbarassment as well as harassment by Palmetto Alliance." Response, at p. 37. In the alternative Applicants seek an order requiring execution of an agrea,ent of nondisclosure by Palmetto as a con-dition of release of this information, Id., p. 40.
The discovery rules, of course expressly authorize disclosure of "the identity and location of persons having knowledge of any discoverable matter,"
10 CFR Section 2.740 (b) (1).
Clearly where, as here, the contention itself alleges " pressure to approve jointly worknanship by the ccrnpany, and a part of the basis for the contention is the personal experience of a former Quality Control Inspector at the facility, access to the identities and location of others enployed in the ccznpany QA/QC programs who likely have had similar experience is of central relevance and must discoverable.
Certainly Palmetto would insist on the opporturdtv to contact and inter-view persons likely to have knowledge of significant discoverable matter.
Palrietto expressly disclaims any desire to " annoy, anbarass or oppress" any such person. We believe that workers and former workers have been and will continue to be of vital assistance to Palmetto Alliance in orotectina "
l f the public health and safety frcan the consequences of faulty workmanship
at the Catawba plant. Palmetto is willing to agree to any reasonable measure to protect such workers and former workers frm annoyance, abar-assment and harassment frm any source including Duke Power Cmpany.
Interroaatory 23.and Interrocatory 25.
These questions seek the identification of documents reflecting disputes between Quality Control Inspectors and supervisors, and cmplaints by workers of substandard workmanship or pressure to perform or approve such worknanship, respectively. Applicants assert that their search for such documents is inoaaplete and they should be required to suppleent their response as needed.
Applicants provide only a listing of the documents by object to answer-ing any specific questions posed. Palmetto reasserts the same argments and requests made above with respect to Interrogatories 12 and 13.
Interrogatory 25.
Duke objects to providing information it has regarding the basis for the NRC "below average" SALP evaluation and corrective action, if any, taken in response. It succests that the Staff rvri know more on the subject thile such a suggestion may be accurate, it should not relieve Applicants of the duty to respond within their knowledge, which response should be ompelled.
Interrogatory 27.
This cuestion seeks t.he bases for responses to Nos. 16 - 26 and is objected to with respect to oral comunication on the crounds civen under General Interrogatory No. 4. Palmetto directs the Board's attention to its argument above on that question and asks that Applicants be required to I respond further as further answers to Nos.16 - 26 are cmpelled.
CNITNTION NO. 7 As finally admitted by the Board in its Decenber 1 Order, Slip Op.
at pp. 5 - 6, Palmetto Alliance Contention No. 7 reads as follows:
No reasonable assurance can be had that the facility can be operated without endangering the public health and safety because of Duke's consistent failure to adhere to reau. ired Ccxmission operating and administrative procedures prwided for in Ccmnission rules and regulations. "The Nuclear Regulatory Ccmnission has the statutory responsibility for prescribing licensing standards to protect public health and safety and for ins:pec: ting the industry's activi-ties against these standards. The Ccmnission does not thereby certify to the industry that the industry's designs and procedures are adequate to protect its equipnent or operations." Federal Tort Claim of Ge.neral Public Utilities Coro. , g al, CLI-81-10,13 NPC 773, 775-776 (1981) . At both Oconee and Catawba facilities of Duke Power CcInpany the Systenatic Assessnent of Licensee Performance Review Group found 'Neaknesses in personnel adherance to operating and administrative procedures" and " failure to follow procedures."
NUREG 0834, Licensee Assessments, August 1981, pp. A-3, B-1. As long ago as 1977 Duke, Licensee for the Oconee facility, was assessed civil penalties of $21,500 where "the history of repetitive and chronic non-ocxupliance, when considered in conjunction with failure to institute effective corrective action and management controls, denonstrates that managemnt is apparently not conducting licensed activities with adequate concern for the health, safety, or interest of its enployees or the general public." Ernst Volgennau, Director, Office of Inspection and Enforcenent, USNRC, to Carl Horn, Jr. , President, Duke Power Ccrapany, March 29, 1977, Docket Nos. 50-269, 50-270, 50-287.
The Board observes in admitting Palmetto 7:
This " track record" contention questions the Applicant's managerial and technical oczupetence to operate the Catawba facility safely, based in part upon past performance at other nuclear facilities.
Id, p. 6. It is specific evidence of this " track record" which Palmetto seeks in the discovery which is the subject of this motion to ocmpel.
Interrogatory 5, and Interrogatory 8.
These are both " basic questions to which Applicants assert an objection i to identifying oral ocmnunications on grounds "given in response to General Interrogatory 4," Response, pp. 47 and 49. Palmetto directs the Board's attention to its argument on that subject above and requests a direction for further response.
Interrocatory 11, j..
Interrogatory 12, Interrogatory 13 and Interrogatory 1^
These questions seek to elicit a description of existances of non-ocm-pliance by Duke Power Ccrupany with NRC clwating and administrative pro-cedures and the results of corrective actions, if any, taken by Duke in response. In answer Applicants concede that Since Oconee began operation, there have been 1203 Incident Reports and 610 Reportable Occurrences. There have been 27 QA Operation and Administration audits which identified deficiencies.
There have been 336 NRC Insoection Reports, in which there were 324 violations identified. The total number of documents for Oconee which identify deficiencies is in excess of 2100. Since McL'uire I began operation, there have been 298 Incident Reports and 226 Reportable occurrences. There have been 15 QA Operation and Admin-istration audits which identified deficiencies. There have been 93 NRC Inspection violations identified. The total number of docu-ments for McGuire I which identify deficiencies is in excess of 630. The total number for both stations is more than 2700.
Response, at p. 51.
Applicants object to answerina any further questions or providing any further description of these instances of non-cmpliance or cor-rective action taken asserting undue burden where
...the burden of deriving it frm these documents would be substar'ially c the same for Palmetto Alliance: as for Applicants.
M , at p. 53.
For the reasons there stated Palmetto reauests that Board recuire Applicants to either answer the specific auestions posed here or provide copies of the subject documents with specific references noted at no cost to Palmetto in lien of such answers all as argued above with respect to Interrogatories 12 and 13 recardina contention 6.
Interrocatory 16.
This question asks the Applicants to identify Duke Power or contractor employees, known to it, who have been subject to sme adverse eersonnel action as a result of non-cmpliance with NRC operating and administrative procedures. Applicants object.
This information is necessary and properly discoverable since it is just these persons who theselves have knowledge of the underlying noncm-pliance. Their " identity and location" is expressly discoverable. 10 CFR Section 2.740 (b) (1). The circumstances and nature of the disciplinary or other actions taken against these persons by Duke fears directly on question by Duke with respect to the nonempliance, and is therefore relevant to either Palmetto's claim or Applicants' defense on Contention 7.
Applicants object on the grounds of burden and relevance, and assert that disclosure would subject Duke and these splayees to sbarassment and
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Applicants object on the grounds of burden and relevance, and assert that disclosure would subject Duke and these cuployees to enbarassment and harassment by Palmetto Alliance. As urged with respect to Interrogatory 22 regarding Contention 6, to which the Board's attention is directed, Palmetto agrees that reasonable measures to protect such workers frm harassnent by Duke Power Cmpany or any other party are appropriate, and asks the Board to direct Applicants to answer this question.
Interrogatory 17.
This question calls for Apolicants to identify and describe instances where it has been subject to punitive action for activities under its Canis-sion licenses. Applicants concede that they have been subject notices of violation, civil penalties, an order to show cause and five orders for mon =
ification of licenses, but they object to answering any further questions concerning these actions asserting that (T)he burden of deriving such information frm those docu-ments would be substantially the same for Palmetto Alliance as for Applicants.
Response, at p. 62.
Palmetto asks that either the questions be answeral or the actual docu-ments with specific references by provided Palmetto at Applicarts' expense as argued in regard to Interrogatories 12 and 13 or Contention.6 above.
CONITNTION 44 (CESG 18)
This Board admitted Palmetto Contention 44 in its July 8, 1982 Order, Slip Op. at pp.12 and 13, which reads as follows:
The license should not issue because reactor degradation in the form of a much more rapid increase in reference tanperature than had been anticipated has occurred at a number of PWR's includina Applicant's Oconee Unit 1. Until and unless the NRC and the indus-try can avoid reactor anbrittle ent, Catawba should not be permitted to operate.
In its Decsber 1 Order the Doard lifted the story of discovery on Contention 44, and Applicants thereafter resTonded to Palmetto outstanding discovery on this subject. .
Interrogatory 2 Interrogatory 3, and Interrogatory 4.
These cuestions seek to elicit information concerning Applicants' know-ledge of mbrittlement probims and planned reedial action at Duke's own Oconee facility and at Carolina Power and Light's H. B. Robinson plant, each of which has experienced the "much nore rapid increase in reference tmperature than had been anticipated,: according to Palmetto's information, as expres-sly alleged in the text of the contention. We believe that such evidence of experience fran other facilities bears directly either on our claim or on Applicants' potential defense, and to the extent of Applicants' knowledge should be discoverable. Design differences between these facilities and Catawba g distinguish the circunstances at one facility frm another, but that fact alone does not make this information non-discoverable.
Interrogatory 11.
Applicants again object to describina the realial action by then to address the mbrittiment proble at their other facilities. Palmetto re-asserts the arcument above made with respect to Interrogatories 2, 3, and 4.
Interrogatory 15.
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Applicants object to providing the results of examinations of its reactor vessels. Palmetto can only cuess at the basis for objections, l
but if, as presuned, Applicants assert the irrelevance of evidence regarding mbrittiment at other facilities, Palmetto reiterates the argument advanced l
above on Interrogatories 2, 3 and 4. Any differences in examinations results
- g distinguish Catawba, but are not non-discoverable.
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Interrogatory 22.
Applicants again object to describing thermal shock studies, tests and experiment results in its possession regarding facilities other than Catawba. Palmetto reiterates its argument above.
Interrogatory 23.
Again, production of fracture toughness test results referenced speci-fically in Applicants' FSAR is objec'.ed to on the same grounds. Palmetto reasserts its argurrent above.
Interrogatory 25, Interrocato2,7 26, Interrogatory 27, Interrogatory 28, Interrogatory 29, Interrogatory 30, Interrogatory 31, Interrogatory 32, Interrogatory 33, Interrogatory 34, and Interrogatory 35.
Applicants reiterate the same objections made previously to providing any information recarding its Oconee facilities on the subject of enbrittle-ment. Palmetto renews its argument to the contrary as advanced with respect to Interrogatories 2,3, a.a 4, above. l l
d 1
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II SUPPIINENT 'IO M7fIONS
'IO COMPEL REGARDING APPLICANTS' RESPONSES 'IO "IAINETIO ALLIANCE SECDND SET OF INTERROGA'IORIES AND REQUESTS 'IO PRODUCE,"
DATED SEPTEMBER 22, 1982 AND APPLICANIS" RESPCNSES 'IO "PATERI'IO ALLIANCE THRID SET OF INTERBOGA'IORIES AND REQUESTS 'IO PRODUCE,"
DATED OCIOBER 13, 1982 Pursuant to the Board's direction in its Decenber 22, 1982, Order, Slkp Op. at p. 20, Palmetto Alliance hereby renews and suppleents its Motions to Cmpel dated October 4 and Novenber 3 directed toward Appli-cants Responses, above-referenced, on the subjects of Palmetto Contenticns 8, 27 and 16, respectively.
GENERAL INTERBOGA'IORIES Applicants take the same pocition and assert the same objections to these General Interrocatories as they did to the same questions posed with respect to contentions 6, 7 and 44 above. Palmetto urges the Board to require answers for the same reasons advanced above. We add only that here Applicants assert a wholly unparticularized privilege claim without acknow-ledging any duty whatsoever to provide an itanization and claim regarding l specific " work product" documents, a duty stich they later recognize (but seek refief frm) in their Decenber 31, 1982, Response in light of the Board's express injunction to Palmetto contained in its Decenber 22, 1982 Discovery Order.
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SPECIFIC INTERROGCORIES CDNTENTION 8 The contention reads:
No reasonable assurance can be had that thefacility can be operated without endangering the public health and safety because
- the Applicants' reactor operators and shift supervisors lack suf-l ficient hands-on cperating experience with large pressurized water reac+ ors. The resumes of Catawba Plant Supervisors show that only a very few of these individuals who will have primary management responsibility for safe operation of the plant, FSAR, Table 1.9-1, p.2, have experience at large PWR's like Catawba NUREG 0737, Clarification of TMI Action Plan Recuirments, I.C.3. Resumes of Senior Operators and Reactor Operators show similar lack of exper-ience.
Interrogatory 2.
! The question seeks identification of Comunication between Applicants l and the NRC on the subject of operator qualifications at each of its facilities including Catawba. Applicants object on relevance and burden arounds to providing any information beyond that
...regarding the direct and related work experience at large PWR's as a omponent of operator qualification for reactor operators and senior reactors operators for the Catawba Nuclear Station.
Response, at p. 13.
Palmetto subnits that all aspects of operator qualifications and evidence on the subject arising fran experience at Applicants' other facil-l ities as well as Catawba is discoverable as relevant to the subject matter and bearing on either Palmetto's or the Apolicants', potential claims or defenses on contention 8. It is Palmetto's view, as asserted in the conten-tion, that there is no adequate substitute for actual " hands-on operating experience with large pressurized water reactors" to establish sufficient
qualification for RO's and SBO's for safe operation. Palretto anticipates, however, that Applicants or Staff may assert the defense that sufficient qualification may be established by other means such as classrocan or simulator trarung, testing or operations at other than large PWR's. A responsive answer should be campelled.
Interrogatory 3.
The cuestion calls for description of the selection criteria for all control rocm personnel. Applicants object to providing any information beyond actual work experience for reactor operators. On the same basis as in its response to interrogatory 2. Again, the general subject matter is qualification for safe operation of the facility. Selection criteria other than work experience bears on potential claims and defenses on this con-tentions. Palmetto reiterates its argument advanced above on interrogatory 2, above.
Interrogatory 11.
Here Palmetto seeks an explanation of terms enployed by Applicants in the FSAR on the subject of operator qualification. Applicants object on same grounds as above and Palmetto reiterates the arauments advanced re-garding interrogatory 2.
Interrogatory 15.
This question seeks the bases for previous answers. Applicants object to identifyina oral crruunications on grounds asserted under response to General Interrocatory No. 4. Palmetto reiterates its arcument above on the same subject.
Interrogatorylp.
Applicants assert that evidence regarding the details of and differences in design between other reactors on which personnel have experience and
Catawba is not significant because training "take full account of such possible differences," Response, at p. 19. Whether true or not suc5h infonnation is clearly relevant and should be discoverable. 'Ihe specific character of actual operating experience of Catawbal personnel is the very core of contention 8.
Interrogatory 19.
Applicants object to explaining what if any involvement control rocm personnel have had in Catawba control rocm design and procedures. The degree to which such design and procedures acecrnodate personnel qualifications and needs clearly bears on the assurance that the facility will be operated safely.
Interrogatory 24.
See argument on General Interrogatory 4.
Interroaatory 35.
Applicants object on relevance, burden and annoyance grounds to providing test results for its control rocm personnel. Palmetto asserts that training and testing are ccr1ponents of operator cualification arguably substituting I
l or supplantira inadequate " hands-on experience," and that evidence of Applicants o p rator test results bears on anticipated claims or defenses on i
this contention.
Interrogatory 36.
j Applicants object to detailiro the'ir involvenent and position on NRC rule makings on operator cualification. Pa1retto believes it relevant to l
l potential claims and defenses on this contention to ascertain positions on l
this subject taken by Applicants.
i I .-. ._ -
CONIETTION 27 This contention reads:
The Applicants should be required to place real time monitors capable of readina gama radiation levels around the site in order to provide mergency operations personnel with the information required to make decisions necessary to reasonably assure the health and safety of the public under conditions of radiological release to the enviroment.
Interrogatory 2.
This question seeks a description of the "off site radiological moni-tering system to be installed at Catawba." Applicants response is limited by the phrase, "to be used in response to mergency conditions" not included in the question and any further response in objected to on grounds of rele-vance and undue burden, leaving Palmetto to wonder what information is being witheld. -
Interrocatory 4.
This question seeks to elicit any information known to Applicants con-cerning alternative methods available for meeting regulatory standards avail-able for meeting regulatory standards referred to in answer to Interrogatory 2 with respect to off site radiological monitering systas. Applicants object on grounds of relevance and undue burden. Central to this contention is the allegation that Applicants should be required to employ an alterna-tive method for off site radiological nonitering and thus their knowledge of alternatives is relevant and discoverable.
Interrogatory 6.
Applicants object on relevance and burden grounds to this question concerning the costs of installation and operation of the monitering systs at Catawba. Palmetto anticipates that the cost of various alternative
moniterino systes will bear on its claim or potential defenses on this contention. For example in NUREG/CR 2644, "An assessment of Off Site, Real-Time Dose Measurment Systems for Emergency Situations" (April 1982) one of the primary itms str. 'ed was,
- 5. the availability, cost, and the instr mentation requirements for a systs Id., at V. (sphasis supplied).
The information sought is relevant, discoverable and should be produced.
Interrogatory 7, and Interrogatory 8.
Applicants object on relevance and burden grounds to providing any information to describing the process of selection splayed in choosing the systm of monitering to be used and the reasons for rejecting other omponents.
Palmetto asserts that the alternative of real time moniters is superior to the systs chosen by Applicants and we should be entitled to discover what information if any was known to Anplicants upon which it based its decision to select the systs to be splayed at t!c facility.
Interrogatory 10.
Applicants object to identifying ocumunication with the NRC sought in this cuestion regarthng off site reintering systes at Catawba and Duke's other facilities. Evidence of the reculatory experience of Duke with such monitering at existing ooerating facilities clearly bears on the feasibility of syste s and procedures to be used at Catawba.
Interrogatory 11, Interrogatory 12, and Interrogatory 13.
Again these questions seek information concerning Applicants' exper-ience with off site monitering systens at its other operating facilities, including descriptions, differences frm that at Catawba, NRC ev'aluations, and problens encountered. This information is clearly relevant to potential claims or defenses on this contention and should be produced.
Interrogatory 17.
Applicants seen to object to providing information regarding standards for the rmaing of TID's in " routine situations" since they interpret this contention only to permit discovery of information regarding monitering under eTaugency conditions. Clearly, TID will be read under both routine and emergency conditions and information on both circunstances is relevant for ocznparative use. In addition Palmetto understands that routine moni-l tering data is essential in order to effectively baseline data for use in energency cx)nditions.
Interrogatory 23, and Interrogatory 24.
There questions seek to elicit information known to Applicants regardina the description of real-time monitering systens now available, their costs, and any problens associated with then. Applicants object on the grounds f relevance and burden. Either they know or they don't, but their level of knowledge and the nature of the information known clearly bears on the validity of the choice of systers which they have made for use at this facility.
r Interrogatory 25, Interrogatory 26, and Interrogatory 27.
These questions ask what Applicants know of real time nonitering sys-tes now in use at other nuclear facilities, including any information sought andreceived frun other operators and any knowledge on the part of Applicants regarding the cost effectiveness of real time monitering systens. Applicants objee. and provide no information Watsoever. Either Applicants know or they don't; they did not. The state of their knowledge and the nature of the information known clearly bears on the validity of the choice of systan which they have selected for thi;. facility.
January 28, 1983 i N
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AA <
Robert Guild, V N Post Office Box 12097 Charleston, S.C. 29412 Attorney for Palmetto Alliance I
~ _ _ _ _ .--
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
! BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the matter of ) Docket Nos. 50-413
) 50-414 DUKE POWER COMPANY, et al. )
(Catawba Nuclear Station, l ,
198h Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of PAlbEI'IO ALLIANCE IUTION 'IO COMPEL DISCOVERY AND SUPPLEMENT 'IO M7fICES 'IO COMPEL DISCOVERY in the above captioned matters, have been trrved upon the follow-ing by depositing same in the United States mail, postage prepaid, on this 2. y of ,
198h James L. Kelley, Chairman Chairman Atanic Safety and Licensing Board Panel Atanic Safety and Licensing Aopeal Board U.S. Nuclear Regulatory Ccmnission U.S. Nuclear Regulatory Ccmnission Washington, D.C. 20555 Washington, D.C. 20555 Dr. A. Dixon Callihan Henry A. Presler Union Carbide Corporation Charlotte-Mecklenburg Envirorrnental Coalitic P.O. Box Y 943 Henley Place Oak Ridce, Tennessee 37830 Charlotte, N.C. 28207 Dr. Richard R. Foster J. Michael bi: Carry, III, Esc.
P.O. Box 4263 Debevoise & Liberman Sunriver, Oregon 97701 1200 Seventeenth St., N.W.
Washington, D.C. 20036 Chairman Atanic Safety and Licensing Board Panel Jesse L. Riley U.S. Nuclear Regulatory Ccmnission 854 Henley Place Washington, D.C. 20555 Charlotte, N.C. 28207 George E. Johnson, Esc. Scott Stucky Office of the Executive Ieoal Director Docketing and Service Station U.S. Nuclear Regulatory Ccmnission U.S. Nuclear Regulatory Ccanission Washington, D.C. 20555 Washington, D.C. 20555 William L. Porter, Esc.
Albert V. Carr, Jr., Esq.
Ellen T. Ruff, Esq.
Duke Power Canpany P.O. Bcx 33189 /
Charlotte, N.C. 28242 Richard P. Wilson, Esq.
Assistant Attorney Cencral (
State of South Carolina P.O. Box 11549 nobertGuitsM Columbia, S.C. 29211 Attorney for Palmetto Alliance, Inc.
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