ML20126F683
| ML20126F683 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 12/24/1992 |
| From: | Mcgarry J LOUISIANA ENERGY SERVICES, WINSTON & STRAWN |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#492-13493 ML, NUDOCS 9212310060 | |
| Download: ML20126F683 (14) | |
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i e $ Uf(kf0 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION t s BEFORE THE ATOMIC SAFETY AND LICENSING BOARDgp 28 QO ;55 t In the Matter of i i LOUISIANA ENERGY SERVICES, L.P. Docket No. 70-3070-ML (Claiborne Enrichment Center) i APPLICANT'S MOTION TO COMPEL DISCOVERY i FROM CITIZENS AGAINST NUCLEAR TRASH Pursuant to 10 C.F.R. 2.740(f), Applicant Louisiana Energy j
- Services, L.P.,
moves that the Licensing Board enter an Order compelling Citizens Against Nuclear Trash (Intervenor) to answer e l certain questions in " Applicant's Interrogatories to Citizens j Against Nuclear Trash's Contentions B, I, J, K, L, M:and Q" [ served on August 11, 1992 (Applicant's August 11 Interrogatories). Specifically, the interrogatories in dispute for which Applicant seeks an Grder compelling answers are B.1-2, _B.1-2.1, B.1-2.2, B.4-2, B.4-3, B.4-4, B.4-6, B.5-1, I.1-b through I.11-b, J.3-2, J.4-1, J.4-2.a, J.4-2.c, J.4-2.d, J.4-2.f, J.6-1.b, J.9-3, J.9-4.a, J.9-4.b, K-2.a, and Q-2. I. BACKGROUND I~ Intervenor, in its Answers to Applicant's August 11 Interrogatories, served December 2, 1992, sets forth three I general objections to answering many~of these Interrogatories. ( l Intervenor objects to answering, among others, interrogatories l 9212310060 921224 13 l PDR ADOCK 07003037 jj C PDR
I B.1-2, B.1-2.1, B.1-2.2, B.4-2, B.4-3, B.4-4, B.4-6, B.5-1, J.4-1, J.4-2.a, J.4-2.c, J.4-2.d, J.4-2.f, J.6-1.b, J.9-3, J.9-4.a, J.9-4.b, K-2.a, and Q-2 on the grounds that the persons who may be testifying on the issues encompassed by the contentions have i not yet-completed their analyses. As noted below, Intervenor also objects to answering some of these interrogatories on other grounds. Intervenor objects to answering interrogatories I.1-b through I.11-b because it " continues to evaluate this aspect of contention I, and is also waiting for the NRC Staff's evaluation." Intervenor's December 2 Answers at 15. Intervenor objects to answering, among others, interrogatories B.5-1, J.4-2.c, J.4-2.d, J.4-2.f, J.6-1.b, J.9-3, J.9-4.a, J.9-4.b, K-2.a, and Q-2 on the grounds that Applicant seeks to discover the legal theories of Intervenor's attorneys. Intervenor failed to respond to interrogatory J.3-2. i l II. DISCUSSION Incomplete Analyses As noted above, Intervenor objects in whole or in part to answering interrogatories B.1-2, B.1-2.1, B.1-2.2, B.4-2, B.4-3, B.4-(, B.4-6, B.5-1,.J.4-1, J.4-2.a, J.4-2.c, J.4-2.d, J.4-2.f, J.6-1.b, J.9-3, J.9-4.a, J.9-4.b, K-2.a, and Q-2 on the ground that the persons who may be testifying on the issues encompassed by the contentions have not yet completed their analyses. This is not sufficient ground to support an objection to discovery. l l l
The Commission's rules contemplate that parties' positions may not be complete during discovery and may evolve during a licensing proceeding. 10 C.F.R. S 2.740(e) acknowledges this evolutionary process and requires parties to supplement their answers if the information provided is no longer correct.
- Egg, l
g2g2, Cleveland Electric Illuminatina Company (Perry Nuclear Power Plant, Units 1 & 2), LBP-82-67, 16 NRC 734 (1982), where the Licensing Board noted that "should applicant develop new, relevant evidence, it would of course be under a continuing obligation to update its answer." Tt.orefore, an analysis not yet completed is not grounds to withhold information from discovery, and Intervenor should be compelled to answer these interrogatories. J Awaitina NRC analysis Intervenor answered interrogatories I.1-a through I.11-a in the negative, i.e., that it is not willing to withdraw its contentions alleging that Applicant's license application is incomplete. However, as noted above, Intervenor objects to answering interrogatories I.1-b through I.11-b, which would inform Applicant of Intervencr's specific concerns, because Intervenor " continues to evaluate this aspect of contention I, and is also waiting for the NRC Staff's evaluation." Applicant is entitled to know why Intervenor considers the license application to be incomplete. l l l i
I' Intervenor based its contention-I'on an NRC Staff letter ) requesting-additional information. The requested information-now 1 a has been provided (to Intervenor as well as the Staff), and the NRC Staff has indicated that it is, for the most part, satisfied I with Applicant's answers and revisions, thereby removing the l bases for this contention. Thus, by not answering Applicant's l interrogatories on this matter until after the Staff complete's l j its evaluation (presumably by issuing the Safety Evaluation l Report and Draft Environmental Impact Statement), Intervenor j appears to be waiting for the Staff to define issues. If Intervenor believes the license application is incomplete, Applicant is entitled to a specific answer setting forth the-facts supporting this belief. Further, Intervenor cannot wait to j formulate its issues based on-the Staff's. evaluations, thereby avoiding, in effect, the late-filed contention' standard in 10 i C.F.R. S 2.714(a). Regarding this matter, the Court, in Union of { Concerned Scientists v. U.S. Nuclear Comm'n, 920 F.2d 50, 55-56 i (1990), noted that "[w]e see nothing in the statute (Atomic. Energy Act) that guarantees all. private parties the right to have t l l the staff studies as a sort of pre-complaint discovery tool." By. avoiding specific answers _to Applicant's August 11 l Interrogatories until after it reviews the Staff's reports, Intervenor may improperly try to adopt challenges "it either originally opted not to make or which simply did not occur to'it at the outset." Idx at 55. Thus, Intervenor should be ordered' I . I. L
1 to answer these interrogatories based on issues it has identified already. Also, Applicant is about to complete the major effort of revising the application (although a lower-key effort will continue for the long term) based on comments from the NRC Staff that sufficient information has been provided. If, as Intervenor states in its Answers, deficiencies remain in at least eleven 9 areas, Applicant is entitled to know these areas and needs to resolve these problems prior to preparing its position for the upcoming hearing and prior to beginning procedure and design development based on commitments in the application. For these reasons, Applicant moves that the Licensing Board order Intervenor to answer interrogatories I.1-b through I.11-b, which will provide Applicant with information necessary to resolve this contention in a timely manner. Intervenor also objected to providing answers to interrogatories I.1-b through I.11-b on the grounds that it is continuing to evaluate this aspect of the contention. Applicant already has shown that Intervenor's continuing evaluation is not sufficient grounds for withholding information from discovery. Attorney work nroduct As noted above, Intervenor objects to answering interrogatories B.5-1, J.4-2.c, J.4-2.d, J.4-2.f, J.6-1.b, J.9-3, J.9-4.a, J.9-4.b, K-2.a, and Q-2 on the grounds that Applicant seeks to discover the legal theories of Intervenor's attorneys. 4 ,m.
l Applicant does not wish to discover Intervenor's mental impressions and legal theories. In the objected to interrogatories, a fact or citation to a regulation or regulatory 4 guidance is requested, not a legal theory. Facts and citations to authorities are not legal theories and are required to be provided by regulations. Under 10 C.F.R. 2.714, Intervenor must state its basis for a contention. 4 l This statement must allege with particularity that an 7 applicant is not complying with a soecified regulation, or allege with particularity the existence and detail of a substantial safety issue on which the regulations are silent. 7 Particularity requires not only an allegation of the fact of non-compliance with a soecified regulation, but also sufficient detail to permit i the Board to determine how the regulation is supposedly being violated. i Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 NRC 1649, 1656 (1982) (underlines i added). Further, 10 C.F.R. S 2.714 (b) (2) (ii) requires 'Intervenor to provide: A concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing, together with references to those specific I sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish-those facts or expert opinion." (Emphasis added.] For the foregoing reasons, interrogatories asking for-facts and citations to specific regulations and guidance are not an 6-i I r -n, - - ,-w- =wI m e
impermissible violation of the protection on legal theories of Intervenor's attorneys. Applicant shows below, for each objected-to interrogatory,'that the information requested falls into the category of facts or references required to be provided under Commission regulations. Therefore, Applicant moves that the Licensing Board order Intervenor to answer interrogatories B.5-1, J.4-2.c, J.4-2.d, J 4-2.f, J.6-1.b, J.9-3, J.9-4.a, J.9-4.b, K-2.a and Q-2. i Interroaatory B.S-1 Provide the basis in regulations or regulatory guidance to justify the statement in Contention B, Basis 5, that "[t]he application should be amended to include full details of decommissioning and dismantlement For example, decommissioning fundina plans are required by regulation (10 C.F.R. SS 70.22(a) (9) and 70.25), but section 70.38 (c) (1) does not require a detailed plan for decommissioning until "on or before the expiration date specified in the license
- What, therefore, is your basis (in the regulations or guidance on the regulations) for alleging that a detailed plan is required prior to licensing?
As part of the answer to this interrogatory, Applicant expects a reference to regulations or applicable guidance which supports Intervenor's statement that the application should be amended. Interroaatory J.4-2.c l In Contentici J you cite Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977) as an authority that equates need for power to benefit for power plant cost-benefit purposes. In Basis 4 you substitute "need for enrichment capacity" for "need for power" to allege that the CEC does not provide sufficient benefit. Do you rely on any authority (e.g., case law, regulations) to i, i
substitute "need for enrichment capacity" for "need for 4 power," or is this done by analogy? Please cite any authority relied upon. As part of the answer to this interrogatory, Applicant would like citation to an authority, if any, which supports the noted substitution. Interroaatory J.4-2.d l Do you consider the need for enrichment capacity the only valid need to support a benefit in the cost-benefit analysis under NEPA? If not, what other valid needs would be a benefit in a NEPA cost-benefit analysis? As part of the answer to this interrogatory, Applicant would like Intervenor's list of valid needs under NEPA. Interroaatory J.4-2.f In Contention J you state that "[o]n the whole, the costs of the project far outweigh the benefits of the proposed action." What bases, facts and analyses were used to reach this conclusion? Please address the specific costs you rely upon. Also, please explain how these costs outweigh the benefits listed in ER sections 8.1 and 8.2, as amended on July 31, 1992, and the LES information letter on need for the facility sent to the NRC on April 30, 1992. As part of the answer to this interrogatory, Applicant wants the facts relied upon to support the statement that the costs outweigh the benefits, in light of the benefits referenced. Interroaatory J.6-1.b If you are not willing to withdraw Basis 6 of Contention J, provide specific descriptions of the information, or types l [of] information, related to the evaluation of the potential, l i r-- c
impacts of the proposed project on the ground and surface water, and the manner in which it will be kept free from contamination that you believe Applicant has omitted from the SAR and ER. Include reference to regulations, regulatory guidance or other authorities requiring or recommending that this information be provided. As part of the answer to this interrogatory, Applicant would like to know what required information has been omitted from the application, and Intervenor's basis, i.e., cites to authorities, for stating that this information is required. Interrocatory J.9-3 Provide specific descriptions of the information, or types (of) information, related to the economic and sociological impacts of the proposed project on the Forest Grove and. Center Springs communities that you believe Applicant has omitted from the SAR and ER. Include reference to regulations, regulatory guidance or other authorities requiring or recommending that this information be provided. As part of the answer to this interrogatory, Applicant would like to know what required information has been omitted from the application, and Intervenor's basis, i.e., cites-to authorities, 1 l indicating that this information is required. l Interrocatory J.9-4.a Explain the relevance of the statistics in [" Toxic Wastes and Race in the United States") to the CEC, which is not a type of facility analyzed by the report; and. After discussing the " Toxic Wastes and Race" report, Intervenor claims in Contention J.9 that the Environmental Report does not demonstrate any attempts to avoid disparate impact. Presumably the disparate impacts are those cited in the report. Therefore, as part of the answer to this interrogatory, Applicant would like to know the facts relied upon by Intervenor to link Applicant's proposed facility to the statistics in this report. Interrocatory J.9-4.b Explain the basis for the statement that the facility has a disparate impact on the community, i.e., disparate with respect to what? In light of the fact that the cited " Toxic Wastes and Race" report does not appear relevant to Applicant's facility, Applicant would like a statement setting forth the disparate impacts alleged by Intervonor. \\ Interroaatory K-2.a The Basis for Contention K alleges that the ER fails to satisfy 10 C.F.R. S 51.54 (which applies nuclear power reactor manufacturers) because it does not satisfy the no-action alternative. Assuming that 10 C.F.R. S 51.45 is the intended reference, no requirement appears to exist for Applicant to submit information on a no action alternative, although the Commission is to provide a discussion of the no action alternative in its Environmental Impact Statement under 10 C.F.R. Part 51, Subpart A, Appendix A. In this regard, provide specific descriptions of the information, or types (of) information, related to the no action alternative analysis that you believe Applicant has omitted from the ER and its supplementary communications to the NRC (i.e., the July 23, 1992, letter). Include reference to regulations, regulatory guidance or other authorities requiring or recommending that this information be provided by Applicant. As part of the answer to this interrogatory, Applicant would like to know with specificity the regulations that are not being complied with, and the information, which is required by those regulations, that Applicant has not submitted. _
4 4 Interroaatorv 0-2 If you are not willing to withdraw Contention Q in light of Applicant's recent submittal, please provide specific descriptions of the information, or types (of) information, related to financial qualification that you.believe Applicant has omitted from its financial disclosures. Include reference to regulations, regulatory guidance or other authorities requiring or recommending that this information be provided. As part of the answer to this interrogatory, Applicant would like to know with specificity the regulations that are not being complied with, and the information, which is required by those regulations, that Applicant has not submitted, i Incomplete and Evasive Answer Intervenor's answer to interrogatory J.3-2 is inadequate or 4 unresponsive. Therefore, pursuant to 10 C.F.R. S 2.740(f) (1), Intervenor has failed to respond to this interrogatory. Interrocatory J.3-2 If the answer to interrogatory J.3-1 is Yes, provide specific descriptions of the information, or types or information, related to the estimated cost of decommissioning (in addition to the Decommissioning Funding Plan (Exhibit I to the License Application), submitted by 3 Applicant on July 31, 1992, and the Urenco paper " Decommissioning and Decontamination of a USJVC Plant," dated April 27, 1989, (License Application, Revision 2, e Exhibit I at 3)) that you believe Applicant has omitted from the decommissioning cost estimate. Include reference to - regulations, regulatory guidance or other authorities requiring or recommendin:/ that this information be provided. Intervenor's answer to interrogatory J.3-1 was "Yes." Intervenor answered interrogatory J.3-2 by referring to its answer to J.3-1. Intervenor did not address specific omissions.
of required information nor did it provide references to authorities which may require such information. Intervenor did not object to answering this question. Therefore, Applicant moves that the Licensing Board order Intervenor to answer interrogatory J.3-2. III. CONCLUSION Applicant respectfully requests the Licensing Board to enter an Order compelling Intervenor to answer interrogatories B.1-2, B.1-2.1, B.1-2.2, B.4-2, B.4-3, B.4-4, B.4-6, B.5-1, I.1-b through I.11-b, J.3-2, J.4-1, J.4-2.a, J.4-2.c, J.4-2.d, J.4-2.f, d J.6-1.b, J.9-3, J.9-4.a, J.9-4.b, K-2.a, and Q-2. Respectfully submitted, 1 h( sk Mi J.. Michael McGahry, III WINSTON & STRAWN 1400 L Street, N.W. Washington, D.C. 20005-3502 202-371-5700 l Attorneys for Louisiana Energy Services, L.P. Dated at Washington, D.C., this 24th day of December, 1992 2,
w 4 UNITED STATES OF AMERICA " J' " NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING OOAkb In the Matter of s, 4 LOUISIANA ENERGY SERVICES, L.P. Docket No. 70-3070-ML (Claiborne Enrichment Center) CERTIFICATE OF SERVICE I hereby certify that copies of " APPLICANT'S MOTION TO COMPEL DISCOVERY FROM CITIZENS AGAINST NUCLEAR TRASH" have been served on the following by deposit in the United States Mail, first class, this 24th day of December, 1992: Administrative Judge Administrative Judge Morton B. Margulies, Chairman Richard F. Cole Atomic Safety and Licensing Atomic Safety and Licensing Board Board i U.S. Nuclear Regulatory U.S. Nuclear Regulatory 1 Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 (2 copies) Administrative Judge Secretary of the Commission l Frederick J. Shon U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Attention: Chief, Docketing and Commission Service Section Washington, D.C. 20555 (Original plus 2 copies) Office of Commission Appellate Eugene Holler, Esq. Adjudication Office of the General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555. r w
1 1 i Ronald Wascom, Deputy Assistant Joseph DiStefano Secretary Louisiana Energy Services, L.P. J Office of Air Quality & 2600 Virginia Avenue, N.W. Radiation Protection Suite 610 P.O. Box 82135 Washington, D.C. 20037 i Baton Rouge, LA 70884-2135 Peter G. LeRoy Marcus A. Rowden Duke Engineering and Services, Fried, Frank, Harris, 5hriver & Inc. Jacobsen 3 230 South Tryon Street 1101 Pennsylvania-Avenue, N.W. P.O. Box 1004-Suite 900 South i Charlotte, NC 28201-1004 Washington, D.C. 20004 i Diane curran Nathalie Walker Harmon, Curran, Gallagher & Sierra Club Legal Defense Fund i Spielberg 400 Magazine St. l-2001 S Street, N.W. Suite 401-i Suite 430 New Orleans, LA 70130 Washington, D.C. 20009-1125 i Adjudicatory File Atomic Safety and Licensing Board Panel U.S. Nuclear Regulttory } Commission Washington, D.C. 20555 LOUISI A ENERGY SERVICES, L.P. O l. W j Jo$ A. WacEvoy ) i Wi@ ton & Strawn / l December 24, 1992 Attorneys for Louisiada Energy j Services, L.P. t 1 s J l - 14 l ..}}