ML041000114
| ML041000114 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 04/02/2004 |
| From: | Repka D, Vaughn L Duke Energy Corp, Winston & Strawn, LLP |
| To: | Blue Ridge Environmental Defense League, Office of Nuclear Reactor Regulation |
| Byrdsong A T | |
| References | |
| 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 7581 | |
| Download: ML041000114 (11) | |
Text
"'RAS q76s1 rCARE8QCORE8PQDME April 2, 2004 DOCKErED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Aprl 8,2004 (10:22AM)
OFFICE OF SECRETARY BEFORE THE ATOMIC SAFETY AND LICENSING BOARD RULEMAKINGS AND ADJUDICATIONS STAFF In the Matter of: )
)
DUKE ENERGY CORPORATION )
) Docket'Nos. 50-413-OLA (Catawba Nuclear Station, ) 50-414-OLA Units 1 and 2) )
)
DUKE ENERGY CORPORATION'S OBJECTIONS TO BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S FIRST DISCOVERY REQUEST In accordance with the schedule established by the Atomic Safety and Licensing Board ("Licensing Board") in its March 30, 2004 "Order (Confirming Matters Addressed at March 25 Telephone Conference)," Duke Energy Corporation ("Duke") hereby files specific objections to certain requests in the "Blue Ridge Environmental Defense League's First Set of Discovery Requests Directed to Duke Energy Corporation" (hereafter, BREDL "First Discovery Request"), dated March 31, 2004. In accordance with 10 C.F.R. § 2.740(c), Duke requests an appropriate protective order limiting the discovery consistent with the objections stated herein.
I. GENERAL OBJECTIONS These general objections apply to each of the requests in BREDL's First Discovery Request.
A. Duke objects to BREDL's interrogatories and document production requests to the extent that they request discovery of information or documents protected under the attorney-client privilege, the attorney work product privilege, and limitations on discovery of trial Wenp late= se C '-O35
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preparation materials and experts' knowledge or opinions set forth in 10 CFR § 2.740, or as otherwise provided by law. See Hickman v. Taylor, 329 U.S. 495 (1947), and Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1162 (1982). Many of BREDL's interrogatories and document requests are overbroad and would encompass privileged material prepared or being prepared in anticipation of litigation in this proceeding.
B. Duke objects to all of the document requests insofar as they include e-mail in the scope of the term "document" and would necessitate a comprehensive search of any Duke e-mail account or backup or archives of such accounts. Such a request would constitute a substantial burden, would not be possible within any reasonable time constraints, and would not be justified by any reasonable need in this proceeding. To provide perspective, Duke maintains e-mail on an active server and on backup tapes. Restoration of relevant files from the server and tapes, subsequent keyword searching, and elimination of duplicates - for even a modest number of e-mail accounts - would consume many weeks. (This time constraint is largely driven by the number of relevant tape drives, not by the number of people engaged in the effort.) In the context of the present proceeding, Duke will respond to the general and specific document requests and interrogatories as described below, and accordingly will provide substantial discovery on the technical issues raised in the admitted contentions. To respond to the request, Duke will specifically identify all individuals who might reasonably be expected to possess information responsive to each request and will review potentially-affected local and central records. Duke will review applicable MOX Fuel Project files for responsive technical assessments, evaluations, calculations, justifications and reports - in whatever form in which they exist, including electronic documents, spreadsheets, or other files. Duke will include 2
responsive e-mail when such e-mail is included in such files. Duke's objection extends to performing additional, comprehensive e-mail searches that are unlikely to lead to any additional, significant information.
II. GENERAL DISCOVERY A. GENERAL INTERROGATORIES GENERAL INTERROGATORYNO. 1: State the name, business address, andjob title of each person who was consulted and/or who supplied information for responding to each of the interrogatories, requestsfor admission, and requests for the production of documents posed by BREDL herein. Specifically note for which interrogatories,requestsfor admissions and requestsfor production each such person was consulted and/or suppliedinformation.
If the information or opinions of anyone who was consulted in connection with your response to an interrogatory or request for admission differs from your written answer to the discovery request, please describe in detail the differing information or opinions, and indicate why such differing information or opinions are not your officialposition as expressed in your written answer to the request.
No objection.
GENERAL INTERROGATORY NO. 2: For Contentions I, II, and III, give the name, address, profession, employer, area of professional expertise, and educationaland scientific experience of each person whom Duke expects to call as afact or expert witness at the hearing. For expert witnesses, provide a list of all publications authored by the witness within the preceding ten years and a listing of any other cases in which the witness has provided fact and/or expert testimony andlor submitted affidavit(s) or declaration(s)within the precedingfour years. For purposes of answering this interrogatory, the educational and scientific experience of expected witnesses may be provided by a resume of the person attached to the response. Fact and expert witnesses should be distinguished No objection, subject to the clarification that Duke has not yet prepared testimony on the contentions and will supplement its response if and when additional witnesses are identified.
GENERAL INTERROGATORYNO. 3: For each witness identified in response to General InterrogatoryNo. 2 above, describe the facts and opinions to which each witness is expected to testify, including a summary of the grounds for each opinion, and identify the documents (including all pertinent pages or parts thereofi, data or other information which each witness has reviewed and considered, or is expected to consider or to rely on for his or her testimony.
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No objection, subject to the understanding that Duke has not yet prepared testimony on the contention and will supplement its response if and when additional witnesses are identified.
B. GENERAL DOCUMENT PRODUCTION REQUESTS REQUEST NO 1: All documents in your possession, custody or control that are identified, referredto or used in any way in respondingto all of the above general interrogatoriesand the following interrogatories and requests for admissions relatingto specific contentions.
No objection.
REQOUEST NO. 2: All documents in your possession, custody or control relevant to each BREDL admitted contention, and to the extent possible, segregated by contention and separatedfromalreadyproduceddocuments.
In addition to the general objections stated above, Duke objects to this request as vague, overbroad and unduly burdensome. Duke will, in response to Request Nos. 1 and 3, supply documents identified, referred to, or relied upon in responding to the interrogatories as well as documents that will be used to support testimony in this case. This information will provide substantial discovery on Duke's position on the contentions - in addition to the information already included or referenced in the public docket on the license amendment application. This overbroad request for "all documents" that are "relevant" to each contention would create an undue administrative burden for no corresponding benefit. Duke also objects to this request to the extent it would require production of reports publicly available from the NRC or from open technical literature.
In addition, with respect to Contention III, Duke objects to this request to the extent it would involve Oconee as a potential alternative for batch use of MOX fuel. Duke also objects to the request as premature in light of Duke's pending Motion to Dismiss.
REQUEST NO. 3: All documents (including experts' opinions, workpapers, affidavits, and other materials used to render such opinion) supporting or 4
otherwise relating to testimony or evidence that you intend to use in the hearing on each BREDL admitted contention.
No objection, subject to the understanding that testimony has not yet been prepared. Duke will supplement its response as appropriate.
III. SPECIFIC DISCOVERY A. SPECIFIC INTERROGATORIES SPECIFIC INTERROGATORY NO. I-l: Identify and describe in detail all experimental data and analysis relevant to your claim that the differences between MOX and LEU fuel performance during a design-basis LOCA arefully accountedfor in your application and RAI responses, includingyour claim in the 11/4/04 RAI response that the methods employed by Duke for performing LOCA calculations, including calculations offuel clad ballooning, "are applicable to both MOX and LEUfuel because they are independent of the pellet type." RAI response at 8. Address this subject in the context of the NRC's statement that "chemical bonding between the pellets and the cladding, which may be different for MOXpellets and U02, may affect the ballooningprocess and hence the fuel behavior." Memorandum from William Travers, Executive Director for Operations, to NRC Commissioners re: Agency Planfor Confirmatory Research Associated JYith the Use of Mixed-Oxide Fuel in Commercial Light Water Reactors, Attachment at 2 (February11, 2000).
No objection.
SPECIFIC INTERROGATORY NO. 2: Identify and describe in detail all experimental data and analysisjustifying your omission of a design-basis LOCA consequence analysis in the license amendment application. In particular,please address the extent to which you took into account in your assessment the wide uncertainty bands for MOX early in-vessel release fractions for most fission product categoriespresented in the expert panel report "Accident Source Terms for Light-Water Nuclear Power Plants: High-Burnup and Mixed-Oxide Fuels,"
Energy Research, Inc., ERIINRC 02/0202 at 38 (November 2002).
Duke objects to Specific Interrogatory 2 on grounds that it is beyond the scope of the admitted contentions in this proceeding, and otherwise does not seek information reasonably calculated to lead to the discovery of admissible evidence. BREDL's proposed LOCA contention focused on certain physical phenomena associated with the fuel performance in a LOCA analysis. In proposed contention 10, BREDL concluded that because of certain 5
unknowns relating to MOX fuel behavior during a LOCA, Duke lacks a factual basis for assuming that the existing emergency core cooling system (ECCS) at Catawba will meet the acceptance criteria in 10 CFR 50.46. (See BREDL supplemental proposed contentions, p. 4.).
This proposed contention related only to ECCS performance and did not mention dose consequences. Moreover, in admitting BREDL contention 10 and incorporating it as part of the basis for the admitted, refrained contentions, the Licensing Board also focused on these same considerations. See LBP-04-04, slip op. at 24, and pp. 19-27 generally.
BREDL raised no issue associated with the consequence (dose) analysis of a LOCA at Catawba while operating with four MOX fuel lead assemblies. Accordingly, raising this issue during discovery represents an impermissible broadening of the BREDL contentions beyond those that were proposed. On this point, the Licensing Board has emphasized that its refraining of the original issues in the original BREDL proposed contentions 1, 2, 6, 7, 10, 11, and 12, should not be interpreted as expanding the issues presented in those proposed contentions. See Tr. 1508-09 (This transcript contains Safeguards Information, but the Board statement in question is not Safeguards Information.). See also the Board's statement in LBP-04-04 that "we deny all portions not included within the [refrained] contentions." LBP-04-04, slip op. at 42.
Additionally, Duke objects to this request because it reflects an incorrect premise associated with the Duke license amendment application (LAR). Duke has in fact addressed the impact of operation with four MOX fuel lead assemblies on the design basis LOCA consequence analysis. See the February 27, 2003 LAR (Attachment 3, Section 3.7.3.3); see also Duke's November 3, 2003 response to an NRC request for additional information (Radiological Consequences - 3b); and, most recently, see the Duke March 16, 2004 letter to the NRC on this 6
docket. However, BREDL did not challenge these analyses contained in the LAR in any contention.
For all of these reasons, Specific Document Request No. II-I should be disallowed.
B. SPECIFIC DOCUMENT REQUESTS REQUEST NO. I-]: Any and all documents containing data or analyses describedin response to InterrogatoryI-1 above.
No objection.
REQUEST NO. II-]: Any and all documents containingresults of severe accident consequence assessments that have been conducted by Duke for the Cataivba nuclearpover plant during the pastfive years. If documents responsive to this request include documents that have already been provided to BREDL in the license renewal casefor Catawbaand McGuire, it will be sufficient to identify the documents.
No objection.
REQUEST NO II-2: Any and all MACCS2 input files that Duke has used in consequence assessments for the Catawba nuclearpower plant during the last five years, including the meteorological data file and the source term release fractionsfor all severe accidents considered.
No objection.
REQUEST NO. 11-3: With respect to any consequence assessments identified in response to Request No. 1, any and all documents containing technical justifications for any assumptions made with respect to the quantities and characteristicsof radionuclidesreleasedfrom core to containment.
No objection.
REQUEST NO. 11-4: With respect to any consequence assessments identified in response to Request No. 1, any and all documents containing technical justifications for any assumptions made with respect to the quantities and characteristicsof radionuclidesreleasedfrom containment to the environment.
No objection.
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REQUEST NO. IH-5: Any and all documents containing any analysis by Duke of the potentialfor or consequences of severe accidents when using MOX LTAs at the Catavba nuclearposver plant.
No objection.
REQUEST NO. I-6: Any and all documents discussing research regarding the potentialfor increasedprobabilitiesor consequences of severe accidents during use of MOXfiiel at nuclearpower plants, including but not limited to studies by the Institut de Radioprotection et de Sarete Nucliaire ("IRSN') or its predecessor, IPSN.
Duke objects to this request to the extent it would include reports publicly available from the NRC or from open technical literature.
REQUEST NO. III-.: Any and all documents evaluating the suitability of the Oconee nuclearpower plantfor batch use ofplutonium MOXfuel.
Duke objects to this request as beyond the scope of this proceeding. The alternative of Oconee for batch use is beyond the scope of this proceeding on the lead assembly application.
Duke also objects to this request as premature in light of Duke's pending Motion to Dismiss Contention III.
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IV. CONCLUSION In accordance with 10 C.F.R. § 2.740(c), Duke requests a protective order with respect to BREDL's First Discovery Request, limiting the scope of that discovery consistent with the discussion above.
Respectfully submitted, avid A. Repka X Anne W. Cottingham WINSTON & STRAWN, LLP 1400 L Street, NW Washington, D.C. 20005-3502 Lisa F. Vaughn DUKE ENERGY CORPORATION 422 South Church Street Mail Code: PB05E Charlotte, N.C. 28201-1244 ATTORNEYS FOR DUKE ENERGY CORPORATION Dated in Washington, District of Columbia This 2 nd day of April 2004 9
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )
)
DUKE ENERGY CORPORATION )
) Docket Nos. 50-413-OLA (Catawba Nuclear Station, ) 50-414-OLA Units 1 and 2) )
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "DUKE ENERGY CORPORATION'S OBJECTIONS TO BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S FIRST DISCOVERY REQUEST," in the captioned proceeding, have been served on the following by deposit in the United States mail, first class, this 2nd day of April, 2004. Additional e-mail service, designated by **, has been made this same day, as shown below.
Ann Marshall Young, Chairman*
- Anthony J. Baratta*
- Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 (e-mail: AMY(nrc.gov) (e-mail: AJB5(nrc.gov)
Thomas S. Elleman** Office of the Secretary **
Administrative Judge U.S. Nuclear Regulatory Commission 5207 Creedmoor Road, #101 Washington, DC 20555 Raleigh, NC 27612 Attn: Rulemakings and Adjudications Staff (e-mail: elleman~eos.ncsu.edu) (original + two copies)
(e-mail: HEARINGDOCKET~nrc.gov)
Office of Commission Appellate Adjudicatory File Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555
Susan L. Uttal, Esq. ** Mary Olson **
Antonio Fernandez, Esq. ** Director, Southeast Office Margaret J. Bupp** Nuclear Information and Resource Office of the General Counsel Service U.S. Nuclear Regulatory Commission P.O. Box 7586 Washington, DC 20555 Asheville, NC 28802 (e-mail: sluenrc.gov) (e-mail: nirs.se(mindspring.com)
(e-mail: axf2(nrc.gov)
(e-mail: mjbSnrc.gov)
Diane Curran *
- Harmon, Curran, Spielberg &
Eisenberg, LLP 1726 M Street, N.W.
Suite 600 Washington, DC 20036 (e-mail: dcurraneharmoncurran.com)
Anne W. Cottingham rn Counsel for Duke Energy Corporation 2
DC:351761.1