ML20050C514
| ML20050C514 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/01/1982 |
| From: | Letsche K HILL, CHRISTOPHER & PHILLIPS, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20050C511 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8204080583 | |
| Download: ML20050C514 (20) | |
Text
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UNITED STATES OF AMERICA ~ ~,'
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
pELATED CORELWN In the Matter of
)
)
LONG ISLAND LIGHTING' COMPANY
)
Docket No. 50-322 0.L.
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUNTY MOTION FOR ORDER COMPELLING LILCO TO PRODUCE DOCUMENTS In connection with its production of documents in response to Suffolk County discovery requests, LILCO has refused to permit Suffolk County ("SC") to examine the following documents:
1.
Stone & Webster Engineering Company ("SNEC")
Project QA Manual, latest revision.
2.
SWEC Quality Assurance Standards, latest revision applicable to the Shoreham Project.
3.
SWEC Quality Assurance Directives, latest revision applicable to the Shoreham Project.
4.
SWEC Field Quality Control Manual for the Shoreham Project, latest revision.
5.
SWEC Engineering Assurance. Procedures, lates t revision applicable to the Shoreham Project.
6.
Specification for Post-Accident Radiation Monitoring, SWEC, Spec. No. SH1-475.
7.
Supporting information package and specifications for Radiation Detector / Containment High Range, manufactured by Kamen (equipment ID: *1D21*REO85A).
8.
SWEC ASME III QA Manual, latest revision.
8204080583 820401 PDR ADOCK 05000322 0
., 9.
Drafts of the Report by'Reinhart & Associates, Inc.
concerning 1981/1982 pre-service inspection tests
-of.Shoreham's Reactor Pressure Vessel.
10.-
Draf ts of the Report of Nuclear Energy Services, Inc. concerning 1981/1982 pre-service inspection tests of Shoreham's Reactors, Pressure Vessel.
11.'
Two TEC drawings, which are part of the purchase specification and successful vendor proposal for the Loose Parts Monitoring System at Shoreham.
12.
Documents concerning the following QA design control and design verification audit programs:
(a)
E&DCR Verification Program (b)
LILCO/S&W As-Built Piping Program (c)
Final Stress Analysis Review (d)
Electrical Raceway Qualification (e)
Final A Release Program (f)
-Fuel. Load Drawing Update Items 1 through 8 above are Stone & Webster documents, and will lua discussed collectively in Section A below.
The other.
items.will be discussed in sections B, C, and D.
A.
The Eight SWEC Documents Each of the documents listed in~ items 1 through 8 is directly responsive to'a SC document request, and'contains information that is relevant to SC contentions. accepted for litigation in
.this proceeding.
.Indeed, access to these QA manuals and procedures and specifications.of the Shoreham Architect-Engineer is' essential 1/
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to SC's. preparation of testimony and cross-examination.
-1/'
-It should be noted that, as stated at page 9 of LILCO's
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Response to Suffolk-County's Requests for Production of Docu-ments,-dated March 26, 1982, the withheld documents contain not only the QA manuals-and implementing procedures of SWEC, but also the QA. requirements andL procedures. to be followed -by two of LILCO's major subcontractors -- Comstock/ Jackson and
. Dravo.
L
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, LILCO has not disputed the relevance of the documents it has withheld.
In fact, at page 9 of LILCO's Response to Suffolk County's hequests for Production of Documents, dated March 26, 1982 ("LILCO's Response"), LILCO states that the documents are "available" to SC.
Despite this statement in the LILCO Response, LILCO has nonetheless refused to permit SC to review the documents.
Its refusal is based solely upon an unsubstantiated and blanket assertion made by LILCO, on bdudf of SWEC, that the documents con-tain " commercial" information.
In unilaterally deciding not to produce clearly relevant documen ts, LILCO has failed to comply with 10 C.F.R.
S 2. 740 (f).
That regulation provides in pertinent part:
Failure to answer or respond [to a discovery request] shall not be excused on the ground that the discovery sought is objectionable unless the person or party failing to answer or respond has applied for a protective order pursuant to paragraph (c) of this section.
In light of LILCO's failure to seek a protective order prior to its refusal to produce the requested documents, and in light of LILCO's failure even to specify with any detail how or why the documents are properly withheld, SC submits that this Motion should be granted and LILCO should be ordered to produce the documents at issue.
As noted above, LILCO has failed to provide any basis whatsoever.fc-its asse on that the withheld documents contain 4
e
, " commercial" information.
Similarly, LILCO has refused to specify which portions of the documents contain the allegedly
" commercial" information.
Instead, LILCO has attempted to shield these documents by a generalized and all-encompassing assertion of " commercial information" (made after it stated the documents were "available").
SC submits that LILCO has plainly failed to comply with the NRC's regulations, both by failing to seek a protective order and by failing to articulate in any detail the basis for with-holding the data.-2/ The Board should not countenance this evasion of the NRC's discovery rules.
Because LILCO has not demonstrated to the Board that any portions of the withheld documents are, in fact, entitled to confidential treatment, SC submits that this Motion should be granted pursuant to 10 C.F.R. S 2.740 (f).
Prior to the filing of this Motion, SC's counsel attempted to negotiate an agreement with counsel for LILCO that would address SWEC's apparent concerns for confidentiality, while at 3/
the same time permitting SC to review the docnments at issue.~
A copy of the Stipulation of Confidentiality proposed by SC is attached hereto as Exhibit A.
However, despite SC's good faith
-2/
SC recognizes that NRC decisions construing Section 2.740(f) have not rigidly required a party to seek a protective order.
However, SC submits that LILCO was-obligated in its March 26 Response to disclose precisely what documents it was with-holding. and to articulate in reasonable detail the basis for
'such action.
LILCO'has never done this.
-3/
SC does not concede that the withheld documents are in fact properly withheld as proprietary, but is-willing to execute an appropriate agreement as a means of moving this proceeding forward.-
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, efforts to resolve this matter without the Board's intervention, LILCO, on behalf of SWEC, rejected SC's proposed Stipulation.-4/
The primary source of disagreement with respect to the language in a confidentiality agreement arises out of SWEC's insistence upon limiting SC's use of the documents to this pro-ceeding and any appeals from this proceeding.
See Confidentiality 7/
Agreement draf ted by SWEC, attached as Exhibit B.-
SC cannot agree to such a limitation.
SC is now, and may be in the future, a participant in proceedings other than this one, which involve the Shoreham PLmit and the issues to which the requested documents are relevant.
Furthermore, in many cases, the same attorneys, consultants, and SC employe's who are w6rking on this proceeding are, or may be in the future, representing SC in such other p roceedings.
The limitation proposed by SWEC would permit SC's counsel and consultants to have access to, and to use certain information while working on this proceeding, but, in effect,
-4/
SC even offered to insert the following additional provisions into the proposed Stipulation (attached as Exhibit A):
(1)
A provision that SC would give SWEC advance notice i
of its intention to use any of the covered documents as exhibits to testimony or written submissions (so that SWEC would have an opportunity to apply for an appropriate protective order prior to the documents' being filed in the public domain); and, (2)
A definition of the term "related proceedings" as "any proceeding involving the Shoreham Plant in which SC is a participant, including, but not being limited to, appeals f rom this operating license proceeding. "
LILCO refused to accept the Stipulation proposed by SC even with the proferred additions.
5/_
Although the Agreement proposed by SWEC was clearly overbroad
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in many respects (see Exhibit B), the other points of disa,Jree-ment could probably have been resolved.
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would prohibit them from " knowing" the same information when working on another proceeding, even if that other proceeding involved the identical or related issues and parties.
- Thus, SWEC's' proposed limitation is imprac'.ical.
More importantly, it is totally unnecessary:
the Stipulation proposed by SC provides for the identical confidential treatment of the documents at issue in any proceeding, and thus SWEC's interests would be fully protected.
SC is willing to execute a reasonable confidentiality agreement that would provide it with necessary access to the requested documents.
SC contends that its proposed Stipulation, pe-ticularly with the additions identified in footnote 4 above, is such an agreement which full protects any legitimate interests of SWEC.
SC remains willing to execute that document.
Accord-ingly, SC submits that, as an alternative to the granting of this Motion (that is, ordering LILCO to produce the requested documents in their entirety, without limitation), the Board s'.?ould order LILCO to produce the documents subject to the terms of the SC Stipulation of Confidentiality.
B.
Drafts of the Reinhart and NES Reports The documents listed in items 9 and 10 were requested in SC's Request for Production of Documents, dated March 5, 1982.
See Requests 14 and 15.
LILCO has indicated that it will produce i
, l only the final reports issued by Reinhart & Associates, Inc.
-and Nuclear Energy Services, Inc. and that LILCO has not yet received such final copies.
See LILCO's Response 5.
LILCO apparently has received draf ts of one or both of these two reports; however, it has refused to produce them.
Contrary to its position with respect to the SWEC documents discussed above, LILCO has not asserted a basis for its flat I
refusal to produce drafts of these pre-service inspectivn t
i reports.
They are clearly relevant and are not privileged, and therefore are within the proper scope of discovery as defined in 10 C.F.R. S 2.740 (b) (1).
Moreover, in discussions with SC's counsel, counsel for LILCO has not even suggested a justification for its refusal to produce these documents, beyond an assertion that SC's request for " reports" can only refer to "the final reports."
LILCO's transparent attempt to argue that draf ts of these l
reports are not responsive to SC's requests has no basis and should be rejected by the Board.
Clearly, SC's requests are not, in fact, limited to " final" reports, and LILCO should not be permitted to re+oni SC's requests to suit its own. purposes.
l Furthermore, SC has made clear to LILCO its intention to include drafts within the scope of its requests.for these pre-service inspection reports, if LILCO had only drafts in its possession.
Accordingly, LILCO's refusal to produce these documents is dis-
, ingenuous, as well as being without any justification whatsoever.
Accordingly, SC submits that LILgo should be ordered to produce any drafts of the pre-service inspection reports by Reinhart &
Associates and by Nuclear Energy Services, Inc.
C.
TEC Drawings These two drawings are part of the purchase specification and successful vendor proposal for Shoreham's loose part monitoring system; they are part of LILCO's response to request 19 of SC's March 5 Request for Production of Documen'ts.
LILCO's counsel has indicated that TEC is in the process of deciding whether it desires to request confidential treatment of the drawings in question.
SC's position with respect to these documents is the same as that set forth above. with respect to the SWEC documents.
Thus, LILCO has made no showing whatsoever that the documents should be protected and has applied for no protective order.
Thus, immediate production should be ordered.
Nevertheless,'SC is willing to execute a Stipulation of Con-fidentiality in the form attached as Exhibit A, in order to move these proceedings along.-6/
Accordingly, SC requests that the Board order LILCO to produce the TEC drawings 6/-
By this offer, SC doec not concede that the TEC documents are in fact properly withheld as proprietory.
s~
, or, in the alternative, that it order LILCO to produce them subject to the terms of the SC Stipulation of Confidentiality.
D.
QA Design Control and Design Verification Audit Programs The six items included in this request are all responsive to request 37 of SC's Document Request dated March 5, 1982, which covers audits concerning the effectiveness of the QA programs at Shoreham.
LILCO's refusal to produce documents relating to the six specific audit programs identified and requested by SC is based solely on semantics.
Thus, LILCO asserts that because these six programs do not have the word " audit" in their titles, they are not responsive to SC's request for audits.
SC submits that LILCO's position is untenable and should be rejected.
The withheld documents relate to specific programs. identified by LILCO in its QA presentation to the NRC Staff on March 15, 1982.
During that presentation, each of the programs was expli-citly relied upon by LILCO as being an audit or analysis that allegedly denenstrates the adequacy and. effectiveness of LILCO's implementation of their QA programs.. Accordingly, by LILCO's own admission, these documents, although lacking the - term " audit" in their titles, are. nonetheless the functional equivalent of audits, and therefore should be - produced.
, Because LILCO has not and cannot assert any privilege with respect to these documents which are clearly relevant and re-sponsive to the SC repast, SC suomits that its Motion should be granted and LILCO should be ordered to produce these QA documen ts.
Respectfully submitted, DAVID J. GILMARTIN PATRICIA A.
DEMPSEY Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 U
Herbert H.
Bro R' Lawrence Coe npher Karla J.
Let che KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
8th Floor Washington, D.C.
20036 (202) 452-7000 April 1, 1982 Attorneys for Suffolk County
EXHIBIT A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322 (OL)
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
STIPULATION OF CONFIDENTIALITY RELATIVE TO PRODUCTION OF CERTAIN DOCUMENTS BY STONE & WEBSTER WHEREAS, Suffolk County ("SC") and the Shoreham, Opponents Coalition
(" SOC") have served upon LILCO Requests for Production of Documents relevant to the above-captioned proceeding; and WHEREAS, SC and SOC have retained MHB Technical Associates and Energy Research Group, -Inc. as technical consultants, and intend to hire additional technical consultants to assist them in connection with this' proceeding; and WHEREAS, the Requests of SC and SOC call for, among other things, the production of certain documents identified in Appendix A hereto
(" covered ~ documents") ; and WHEREAS, Stone & Webster Engineering Corporation ("SWEC")
claims that the covered documents contain confidential commercial information; and-WHEREAS, SWEC: desires to make available to SC and SOC the covered documents for purposes of discovery, provided that-their confidentiality ba maintained; NOW,.THEREFORE, it is hereby stipulated and agreed by and between SC, SOC, and SWEC through their respective counsel:
1.
That the covered documents will be made available to SC and SOC for inspection, note-taking, and copying (copfes to be made by LILCO).
2.
That SC and SOC, their attorneys and their agents, will not use copies of the covered documents for any purpose other than in connection with the above-captioned litigation or related proceedings.
In the event that SC or SOC should disseminate these documents, they will do so only after first securing in writing,from the'. recipients their respective agreements to be bound by all terms and conditions of this Stipulation.
3.
No other dissemination of. copies of the covered documents will be made without the express. written consent of SWEC, or unless opecifically authorized by order of the Atomic Safety and Licensing Board, any other administrative authority, or a court of competent jurisdiction after reasonable prior notice to SWEC of any request for such administrative or judicial action.
4.3 At the close of this proceeding and all related proceedings, all copies of the covered documents will be returned to SWEC or destroyed, and SC and SOC and their counsel will certify that the provisions of this Stipulation have been complied with.
5.
That SC and SOC and their attorneys are expressly authorized by SWEC to show the covered documents to witnesses during depositions, to make the covered documents exhibits to depositions, to show the
-covered documents to the ASLB, any other administrative authority or cgency, or court, and to use the covered documents as exhibits without limitation in testimony _or in cross examination, or otherwise, at trial in_the above-captioned action or any related proceedings.
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. ~
f 6.
Nothing herein will prevent SWEC from seeking an appropriate order to have the covered documents and rel'ated testimony filed with the ASLB, any other administrative authority or agency, or court, under seal, and SC and SOC will allow SWEC a reasonable time to so move, l
provided that SC and SOC reserve the right to oppose any such motion.
7.
Nothing herein will preclude SC or SOC from seeking a ruling from the ASLB, any other administrative authority or agency, or court, that the covered documents do not contain any information entitled to confidential treatment.
In the event that such a ruling is obtained with respect to the covered documents, or any portions thereof, this stipulation shall ba null and void as to such documents.
8.
This Stipulation does not apply to any information or material contained in the covered documents,'that is generally available to the public or previously made available by SWEC to any party without limitation as to its use.
Date Karla J.- Letsche Counsel for Suffolk County Date Stephen B.
Latham Counsel for Shoreham Opponents Coalition Date Marc W.
Goldsmith Energy Research Group, Inc.
CONSENTED TO STONE & WEBSTER ENGINEERING CORPORATION By
Appendix A
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DOCUMENTS COVERED BY STIPULATION OF CONFIDENTIALITY 1.
SWEC Project QA Manual, latest revision.
2.
SWEC Quality Assurance Standards, latest revi atons applicable to the Shoreham Project.
3.
SWEC Quality Assurance Directives, latest revision applicable to the Shoreham Project.
4.
SWEC Field Quality Control Manual for the Shoreham Project, latest revision.
5.
SWEC Engineering Assurance Procedurer, latest revision applicable to the Shoreham Project.
6.
Specification for Post Accident Radiation Monitoring System, S&W, Spec. No. SH1-4 75.
}.
EXRIBIT B
[
DRAFT UNITED STATES OF N4 ERICA NUCLEAR REGULATORY. COMMISSION
~
Befora the: Atomic Safet.y and. Licensing Board s.
.In the Matter.of
)~ -
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Do'ket No'..50-322o(OL)"
..c' LONG. ISLAND. LIGHTING COMPAh"I-c s
)'
(Shoreham Nuclear Power ~ Station,
.).
Unit I)
)
1 AGREEMENT REGARDING. DISCLOSURE OF-CONFIDENTIAL COMMERCIAL INFORMATI0R.
l A..
Suffolk County (SC or County) and the Shoreham.
4 Opponents Coalition. (SOC) are parties to this. operating license' proceeding.? ~The County's technical consultants; in this.procedding are MHB Technical Associates and Energy:
s Research Group, Inc ; SOC's technical. consultants are MHR s
r Technical Associates.(technical consultants).
B.
The Long Island Lighting Company. (LILC01 has engaged Stone & Webster Engineering Corporation (SWEC),
a non-party in this proceeding for certain purposes regard-ing the design.and: construction:of:the'Shoreham. Nuclear..
Power Station.
C.
LILCO has been requested ~to disclose to SC's.
and SOC's counsel and technical. consultants certain docu-ments identified in Exhibit A to this Agreement (documents).
These documents are. claimed by SWEC to contain confidential
. commercial information and to;be customarily-held in con-fidence.
z.
- l 2
i D.
SWEC is willing to make the documents available l
l to SC's and SOC's counsel and technical consultants (herein-I'l cfter "Signators") to inspect, take notes, and request l
ccpies of selected pages, which will be made by LILCO, provided that the information in those documents, notes, cud copies (hereinafter "information") will be used for the limited purposes and will.be treated in a confidential mcnner as provided below.
il l
E.
In consideration of the disclosure of the in-i formation by SWEC, the Signators agree as follows:
(1) Signators will be shown the documents, take any notes,.and receive any copies in strict confidence and cocrecy.
(2) Signators will use t'ne information only (a) for the purposes of discovery and preparation of testimony i
in connection with SC's and SOC's quality assurance con -
tentions in this operating _ license proceeding, and (b) in tastimony as documentary evidence, in cross-examination, cnd for other legitimate evidentiary purposes in.' connection with the same quality assurance contentions.
The infor-mation, if used in whole or in part for any of the above purposes -- discovery, preparation.of testimony, testimony, l
dccumentary evidence, cross-examination, and other legiti-I mate evidentiary purposes -- shall be subject to paragraphs
'(3) and (4) below and shall be presented only during in--
i camera hearing sessions that provide protection against nondisclosure equivalent to that provided under: this Agree-ment.
(3) Signators will not photocopy, trans6rIFif..%pib's.'.'...'.
,.- duce...or. disclose. the..Information,to..,any_..otherr. person".or;. 3.gzu,.,,,
", w m ".M.;
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s-cntity who has not executed this Agreement.
(4) Signators -will-cafeguard and hold in. strict.
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confidence the information, as.well as all evaluations, data, or notes made in connection with the information in,,
cecordance with paragraph (3) above.
-. ~ -.......
(
,,,5) Restrictions on disclosurercontained.herein chall.not: apply.toi.any.information or material-that is generally available to the public or previously made. avail-eble by SWEC without limitation as to uce..
Nothing.2.n..
this Agreement shall be construed as permitting,Signators to'nnfairly~obtain the right to use information that ie-comes pub 5iI::l'y' known "Ehrough' an :improp'er' acts "or' omission: '
on their.part...
)
(6) SWEC retains all right, title, and interest in.
cted to the information.
(7) Signators may not assign this Agreement.
(8) Signators make no admission as to whether the information disclosed by SWEC is, in fact, confidential
O m__.....
consnercial information, but Signators will treat the infor-mmtion on a confidential basis.
In the event any NRC regulation, rule, or ASLB order, other administrative
- - - crder,- or judicial ruling requires the disclosure of the
' information without provid'ing the equivalent.. protection eccorded under this Agreement, SWEC will have the right to immediately withdraw the information from Si-gnators upon rsquest.
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(9) Signators will return to LILCO or to SWEC all the information at the conclusion of their use but in no event later than the conclusion of 'this operating license proceeding including appeals.,.
Date Dale G.
.Bridenbaugh MHB Technical Associates Date Richard B. Hubbard MHB Technical Associates I
Gregory C. Minor
'D a t e.....
MHB Technical Associates 1
Date Earc W.
Goldsmith Energy Research Group, Inc.
Date Herbert H.
Brown Counsel for Suffolk County e
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Karla J.
Letche
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Latham -
Counsel'for Shoreham Opponents Coalition-
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CONSENTED TO STONE. & WEBSTER ENGINEERING' CORPORATION:
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/* SWEC Project QA Mdnual, latest revision.
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- 2. SWEC Quality Assu(ance Standards, latest revisions appli-cable to the Shorehac Project.
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- f. SWEC Quality Assu(ham Project.ance Directives, latest reYisI cable to the Shore h
y SWEC Field Quality Control Manual for the Shorehm Project, 1
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latest revision.
l d SWEC Engineering < Assurance Procedures, latest revision applicable to the!Shorehrt Project.
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(r SWEC QA addits of i he "Shorehm Froject QA Program.=
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j, Q SVEC ASME III QA qudits of the "Shoreh m Project."
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