ML20064H265

Licensees Objections to Certain of Mr & Mrs AC Coleman,Jrs First Set of Interrog to the Licensee.Licensee Moves for Protec Order That Objectionable Discovery Not Be Had.W/Encl Prtoective Order,Contentions & Cert of Svc

ML20064H265
Person / Time
Site:	Salem
Issue date:	12/11/1978
From:	Wetterhahn M CONNER, MOORE & CORBER
To:
References
NUDOCS 7812180301
Download: ML20064H265 (18)

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NUCLEAR REGULATORY COMMISSION Y

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In the Matter of

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Do x5 0'- 27 2' f PUBLIC SERVICE ELECTRIC & GAS COMPANY, et al.

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(Proposed Issuance of

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Amendment to FaEility (Salem Nuclear Generating

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Operating License Station, Unit 1)

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No. DPR-70)

LICENSEE'S OBJECTIONS TO CERTAIN OF MR. AND MRS. ALFRED C. COLEMAN, JR.S' FIRST SET OF INTERROGATORIES TO THE LICENSEE On Nop mber 21, 1978, Mr. and Mrs. Alfred C. Coleman, intervenors in the captioned proceeding (hereinafter "Colemans"),

propounded a set of interrogatories entitled "Intervenors' First Set of Interrogatories to the Licensee."

For the reasons stated hereinafter, Licensee objects to interrogatories 18, 18 (a), 18(b), 19, 19(a), 19(b), 19 (c), 20, 21 and 21(a) and, in part, to interrogatories 13 and 17.

Licensee further moves, pursuant to 10 C.F.R. 52.740(c), for a protective k

orde{ that the objectionable discovery not be had.

In addition, Licensee's response to interrogatory 16 (a) contains information relating to a Boral-stainless steel corrosion program which is proprietary to the supplier of

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While one Licensing Board has recently recogni::ed that

"[n]othing in the NRC discovery rules would require a party to apply for an unnecessary protective order as a condition precedent to making an objection to, say a totally irrelevant interrogatory."

Ncrthern States Power Ccmpany (Tyrone Energy Park, Unit 1), Docket No. 50-484,

• Memorandum and Order Ruling on Motions to Compel Discovery" (Noverder 17, 1978).

Slip Cp.

3.

Licensee chooses to err on the side of caution in so seeking herein.

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a the new spent fuel racks, Exxon Nuclear Company, Inc.

(" Exxon" ).

Licensee will shortly apply to the NRC on behalf of Exxon that the subject report be withheld from public disclosure pursuant to the provisions of 10 C.F.R. 52.790.

Licensee will make the subject document available to the Public Advocate of New Jersey ("Public Advocate"), counsel for the Colemans,and to the Public Advocate's consultant under a suitable protective order.

Licensee has submitted a form of protective order _(attached _ hereto as Appendix A),

patterned after previous protective orders issued by other licensing boards, to the Public Advocate and counsel to the NRC Staff.

Both indicated no objection to its form.

Therefore, pursuant to 10 C.F.R.

S2. 74 0 (c), Licensee moves that the Board issue a protective order with regard to the subject document substantially'in the form of Appendix A, hereto.

Under Nuclear Regulatory Commission regulations and precedents, discovery is limited to matters in controversy 2/

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as admitted by the Atomic Safety and Licensing Board (" Board").

The proferred interrogatories are clearly beyond the scope of admitted contentions and are not reasonably calculated to lead to the discovery of admissible evidence.

For the convenience of the Board, a copy of the admitted cententions is attached as Appendix B.

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10 C.F.R.

S2. 74 0 (b) (1) ; Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), LEP-77-13, 5 NRC 489 (1977), Public Service Ccmpany of Oklahoma (Black Fox, Units 1 and 2), Occket Nos. STN 50-5 5 6 and l

STN 50-557, " Memorandum and Order Regarding Interrogatory l

Discovery" (March 22, 1977), Slip Cp. at 4; Puget Scund l

Power and Light Company (Skagit Nuclear Pcwer Pro 3ect, Units 1 and 2), Cocxe Nos. STN 50-522 and STN 50-523, " Order Denying Motion for Discovery" (November 24, 1978).

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c Interrogatory 13, in part, requests information on "how the consequences of an accident would be affected by acts of sabotage."

No contention pertaining to this subject has been admitted as an issue in this proceeding.

In fact, this Board specifically rejected a contention which would have raised the issue of sabotage as it relates to the spent fuel pool. --3/Therefore the second part of Interrogatory 13 is objectionable.

To the extent Interrogatory 17 requests information on Licensee's " contingency plans for removal and repair" of the spent fuel rods themselves, it is beyond the scope of the contentions admitted as issues in this proceeding.

The design of the fuel assemblies is, of course, unaffected by the proposed amendment and may not be considered in this proceeding.

Interrogatories 18, 18(a), 18(b), 19, 19(a), 19(b) and 19(c) request information related to the spent fuel cooling system, including analyses relating to the loss of such system and its capability with regard to a full core dis-charge.

No contention related to these subjects, i.e.,

the ability of the installed spent fuel pcol cooling system to perform its intended function, has been admitted as an issue i

in this proceeding.

Cf. this Board's " Memorandum and Order" dated August 2, 1978, rejecting a contention raised 3_ /

Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), Occket No. 50-272, " Memorandum and Order" (April 26, 1978) Slip Op. at 14-15.

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. by intervenor Lower Alloways Creek Township on the Residual Heat Removal System.

No response to these interrogatories should be required.

Interrogatory 20 requests information regarding the allowable distortion or damage for fuel storage cells as the result of a fuel handling accident.

The Board has not ad-mitted a contention related to this matter and therefore this discovery is beyond the scope of the issues in this proceeding and should not be permitted.

Interrogatory 21 requests the provision of the results of certain seismic analyses.

This Board specifically re-jected the Coleman's Contention 1 and Part C of Contention 2 which would have required reconsideration of the design of thespeng)fuelpoolwithrespectto,interalia, seismic events.

Intervenors admitted Contention 2, Parts "A" and "B"

relate only to " deterioration" of the Boral Plates and the rack structure.

This interrogatory is objectionable.

Similarly, Interrogatory 21(a) which requests the results and copies of certain analyses relating to postulated accidents and time history analyses, which are part of the seismic analyses, are beyond the scope of the admitted con-tentions and are not reasonably calculated to lead to the discovery of admissible evidence and should be denied.

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Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), Docket No.30-272 (May 24, 1978) Slip Cp. at 5-6,

" Order Following Special Pre-hearing Conference," (unpublished).

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For the foregoing reasons, the stated Interrogatories are objectionable and Licensee's : notion for a protective order should be granted.

Respectfully submitted, CONNER, MOORE & CORSER

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Mark J. Wetterhahn.

Counsel for the Licensee December 11, 1978

APPENDIX A 1

1 In the Matter of

)

)

PUBLIC SERVICE ELECTRIC AND GAS

)

Docket No. 50-272 /

COMPANY, et al.

)

(Proposed Issuance of

)

Amendment to Facility (Salem Nuclear Generating

)

Operating License Station, Unit 1)

)

No. DPR-70)

,4 PROTECTIVE ORDER Pursuant to 552.730, 2.740 (b) (c) and (f) and 2.790(d) of the Rules of Practice of the Nuclear Regulatory Commission

(" NRC" ), the Atomic Safety and Licensing Board issues the following order with directions to the Public Service Electric & Gas Company ("PSE&G"), the Public Advocate of the State Mf New Jersey ("Public Advocate"), and its technical I

consultant, M.H.B. Technical Associates, to adhere to the letter and the spirit of this Protective Order:

1.

PSE&G shall turn over the following documents which have been or will be submitted to the.NRC with a request that they be withheld from public disclosure pursuant to 10 C.F.R. 52.790 or materials which PSE&G or its contractor, Exxon Nuclear Ccmpany, Incorporated, otherwise asserts to contain proprietary data to the Public Advocate and its consultant, M.H.S. Technical Associates:

a.

Fuel Storage Racks Corrosion Program, Boral -

Stainless Steel - Proprietary 2.

Except to the extent that additional individuals may be named pursuant to the provisions of Section 7 of this Protective Order, all materials turned over. pursuant to

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Section 1~ of this Protective Order (" confidential material")

I shall, in the case Ef each recipient party, be received 1

and maintained only by the.following named individuals:

i a.' In the case of the'Public Advocate, R. William

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Potter, Esq. or Sandra T. Ayres, Esq.

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In the case of M.H.B. Associates, Dale Bridenbaugh or Gregory Minor.

1 3.

(a) Prior to the receipt by any individual of each l

iten of confidential material from PSE&G, he shall execute 4

an undertaking (in the form set forth in the attachment to this Protective Order) to be bound by this Protective Order t

with respect to such item, and provide such executed under-taking to PSE&G.

(b) Prior to making each item of confidential material available to any other authorized individual (which is

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shall include only an individual named herein associated with the same party), the individual possessing the item 4

shall first obtain and promptly transmit to PSE&G a similar undertaking executed by the recipient.

4.

Each individual receiving any confidential material:

(a) will utilize the confidential material, the information therein, and any other information he obtains concerning the subject matter thereof only in connection with his preparation for this NRC proceeding; (b) will not reproduce the confidential material or any part thereof; I

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(c) will not discuss or otherwise divulge the con-fidential material, the information therein or any other in-1 formation he obtains concerning the subject matter thereof with any other person, except that he may discuss such material or information:

(1) With another individual associated with the same party, if any, authorized to receive such specific item of confidential material under this Protective Order; j

(ii) with another individual associated with another party named in Section 1 of this Protective Order, if counsel for such other party represents to him (or counsel to PSE&G acknowledges to him upon request) that such specific item relates to an admitted contention of such other party and that such other individual would be authorized to receive such specific item of confidential material under this Protective Order; (iii) with representatives of PSE&G, identified by counsel to PSE&G, as authorized to receive such confidential material; (iv) with representatives of the NRC Staff identified by counsel to the NRC Staff as authorized to re-ceive such confidential material; or (v) in hearings held before this Board, or in any appeal thereof, at which this Board or an appellate body I

has authorized such confidential material to be discussed; (d) will return the confidential material to counsel for PSE&G at the conclusion of his need therefor for

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. this proceeding, but in no event later than the conclusion of this proceeding and any appeal thereof.

(e) will destroy all notes and data taken with re-gard to the confidential material no later than the conclusion of this proceeding and any appeal thereof; and (f) will give written notice to counsel for PSE&G to the maximum extent practicable providing full details and give PSE&G a reasonable time to protect its interests before complying with such a directive by the NRC or a court of compentent jurisdiction to reproduce or disclose any of the confidential material, the information therein or any other information he obtains concerning the subject matter thereof in any manner other than provided herein.

5.

(a)

All administrative proceedings regarding the contents of the confidential materials shall be held in camera, under the conditions set forth in Section 3, hereof, and 10 C.F.R. 52.790(b)(5) and the transcript of such pcrtion of the evidentiary hearing shall be sealed, pending future order of this Board or any appellate body.

(b)

If any party desires to use information de-rived from any confidential material in a pleading in this proceeding, the portion of such pleading that contains such information shall be filed separately and shall be clearly marked PROPRIETARY.

It shall be served only upon the Board, counsel for PSE&G, counsel for the NRC Staff, counsel for the party which is involved in such pleading and authorized

. to receive the specific confidential material involved, and one copy only upon the Secretary of the Commission, the Atomic Safety and Licensing Board Panel and the Atomic Safety and Licensing Appeal Board Panel.

6.

(a)

Neither the issuance of this Protective Order nor the execution of an undertaking by any recipient shall constitute a waiver by such recipient of any claim or argu-ment that the received itam does not contain proprietary data.

Such recipient shall, however, treat such item as constituting confidential material pursuant to this Pro-tective order until and unless there is a final adjudication by the Board, Commission or any appellate body that the item does not contain proprietary data.

(b)

The turning over by PSE&G of any confidential material to any party shall not constitute a waiver by PSE&G of any claim or argument that such material or similar material is not within the scope of such party's admitted contentions in this proceeding or is otherwise not subject to discovery.

7.

(a)

At the request of any party, PSE&G may, by a written document (a copy of which shall be filed with the Board), agree to list additional individuals who will there-after be authori:ed to receive confidential material pursuant to all terms of this Protective Order, subject to any further restriction that may be imposed by this Beard.

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. (b)

If PSE&G refuses any request to agree to list any additional individuals, the requesting party may file a motion with this Board to direct such addition, reciting the reasons for desired addition.

8.

All written notices or correspondence under this agreement to counsel for PSE&G shall be given by registered or certified mail, return receipt requested, postage prepaid to Mark J. Wetterhahn, Esq., Conner, Moore & Corber, 1747 Pennsylvania Avenue, N.W.,

Suite 1050, Washington, D.C.

20006 with a copy to Richard Fryling, Jr., Esq., Public Service Electric and Gas Company, 80 Park Plade, Newark, New Jersey 07101.

IT IS SO ORDERID.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Issued at Bethesda, Maryland this day of 197__.

4 In the Matter of

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PUBLIC SERVICE ELECTRIC & GAS

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Docket No. 50-272 COMPANY, et al.

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(Proposed Issuance of

)

Amendment to Facility (Salem Nuclear Generating

)

Operating License Station, Unit 1)

)

No. DPR-70)

FORM OF UNDERTAKING I,

(insert name of individual], hereby acknowledge the receipt on behalf of (insert name of party] of the following confidential material:

1.

Fuel Storage Racks Corrosion Program, Boral - Stainless Steel under the terns of the Protective Order dated (insert date),

and agree to be bound by the terms of such Protective Order with respect to such material.

I also represent that I do not and do not presently intend to represent or seek to represent a competitor of Exxon Nuclear Company, Inc.

[ Signature of individual]

[Date of e ecution]

a Attachmnnt B, Coleman's Admitted Contentions 2.

The licensee has given inadequate consideratien to the oc=:rrence of accidental criticality due to the increased density er maction of the spent fuel assemblies. Additional censideratien of criticality is required due to the fo11cwing:

A.

detericraticn of the neutren absorbtion material provided by the Boral plates Iccated between the-I spent fuel bundles; B.

deterioration of the rack strucn:re leading to failure of the rack and censeque.:nt dislodging of spent fuel bundles; 6.

The licensee has given inadequate consideration to qualification and testing of Boral material in the envi:enment of protracted asscciation with spent nuclear fuel, in order to validate its centinued properties for reactivity centrol and integrity.

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9. The licensee has given inadequate consideration to alternatives to the preposed action.

In particular, the licensee tus net adequately evaluated altematives associated with the Nucicar Reguistory Ccmission adcpting the "no actien" alternative for licent w's application, which would i:nplicate the folicwing:

A.

expansion of spent fuel storage capacity at reprocessing plants; B.

licensing of independent spent fuel storage installatiens; C.

storage of spent fuel frem Salem No. I at the storage pools of other reactors;

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D.

orriering the generatien of spent fuel to be stopped or restricted (leading to the slow-down or temiratien of nuclear power production until ultimate disposition can be effectuated); and

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13. 'Ihe licensee has failed to give adequate consideration to the mmlative i= pacts of expanding spent fuel storage at Salem htclear Generating Statien lhtit 1 in association with the recently filed preposed amendment to the application for an operating license at the sister unit, Salem Unit 2.

(See Amend:aent No. 42, Docket No. 50-311, filed April 12, 1978 which proposes modifications of spent fuel storage which the intervencr believes are similar in scope to the Salem Unit 1 application.)

For exsgle, the licensee assunes an increase in releases of Kr-85 by a factor of 4.5 --

due to the factor of 4.5 increase in spent fuel (licensee's application, at10). A similar increase, absent excepticnal centrols, can be expected at Salen No. 2, resulting in a cimilmtive increase in Kr-85 emissions by a factor of 9 -- almost a full order of magnitude increase.

(If similar spent fuel increases are postulated for the conpanion units, Hope Creek 1 and 2, new under construction, the cumlative increase could rise by a factor of 18, or almost two full orders of magnitude.)

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. s Lower Alloways Creek Township Admitted Cententions 1.

The Licensee has not considered in sufficient detail possible alternatives to the proposed expansion of the spent fuel pool.

Specifically, the Licensee has not established that spent fuel cannot be stored at another reactor site.

Also while the GESMO proceedings have been terminated, it is not clear that the spent fuel could not by some arrangement with Allied Chemical Corp.

be stored at the AGNS Plant in Barnwell, South Carolina.

Furthermore, the Licensee has not explored nor exhausted the possibilities for disposing of the spent fuel outside of the U.S. A.

3.

While the Licensee has requested increased spent fuel storage capacity at its Salem Unit 1 it has not limited the use of such storage facility to fuel removed from Salem Unit 1.

Storage of spent fuel from other units on or off Artificial Island therefore is a possibility and such storage creates many hazards not analyzed by the Licensee in its application.

Included i

among these hazards are those created by unloading spent fuel casks.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licencina Board In the Matter of

)

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PUBLIC SERVICE ELECTRIC AND GAS

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Docket No. 50-272 COMPANY, et al.

)

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(Salam Nuclear Generating

)

Station, Unit 1)

)

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Objections to Certain of Mr. and Mrs. Alfred C. Coleman, Jr.s' First Set of Interrogatories to the Licensee," dated December 11, 1978, in the captioned matter, have been served upon the following by deposit in the United States mail this lith day of December, 1978:

Gary L. Milhollin, Esq.

Chairman, Atomic Safety and Chairman, Atomic Safety Licensing Board Panel and Licensing Board U.S. Nuclear Regulatory 1815 Jefferson Street Commission Madison, Wisconsin 53711 Washington, D.C.

20555 Mr. Glenn O. Bright Barry Smith, Esq.

Member, Atomic Safety and Office of the Executive Licensing Board Panel Legal Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Ccmmission Washington, D.C.

20555 Washington, D.C.

20555 Dr. James C. Lamb, III Mark L. First, Esq.

Member, Atomic Safety and Deputy Attorney General Licensing Board Panel Department of Law and 313 Woodhaven Rcad Public Safety Chapel Hill, N.C.

27514 Environmental Protection Section Chairman, Atomic Safety and 36 West State Street Licensing Appeal Board Panel Trenton, N.J.

08625 U.S. Nuclear Regulatory Ccmmission Washincton, D.C.

20555

Richard Fryling, Jr., Esq.

Carl Valore, Jr., Esq.

Assistant General Solicitor Valore, McAllister, Aron Public Service Electric

& Westmoreland

& Gas Company Mainland Professional Plaza 80 Park Place P. O. Box 175

Newark, N. J.

07101 Northfield, N. J.

08225 R. William Potter, Esq.

Office of the Secretary Assistant Deputy Public Advocate Docketing and Service Section Department of the Public Advocate U.S. Nuclear Regulatory Division of Public Interest Commission Advocacy Washington, D.

C.

20555 Post Office Box 141 Trenton, N. J.

08601 June D. MacArtor, Esq.

Deputy Attorney General Sandra T. Ayres, Esq.

Tatnall Building, P. O. Box 1401 Department of the Public Advocate Dover, Delaware 19901 520 East State Street Trenton, N. J.

08625 Mr. Alfred C. Coleman, Jr.

Mrs. Eleanor G. Coleman 35 "K" Drive Pennsville, New Jersey 08070

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Mark J.LNetrerhahn

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