ML20050V142

Response Opposing Wi Environ Decade 820328 Motion to Compel Answers to First Set of Interrogatories Re full-scale Sleeving.Interrogatories Irrelevant

ML20050V142
Person / Time
Site:	Point Beach
Issue date:	04/12/1982
From:	Churchill B SHAW, PITTMAN, POTTS & TROWBRIDGE, WISCONSIN ELECTRIC POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8204150049
Download: ML20050V142 (13)

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DC' T-April 12, 1982 .y ,,-,33 p,,qg UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION r;- e,

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Before the Atomic Safety and Licensing Bo (0.M

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In the Matter of )

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WISCONSIN ELECTRIC POWER COMPANY ) Docket Nos. 50-266

) 50-301 (Point Beach Nuclear Plant, ) (OL Amendment)

Units 1 and 2) )

9 LICENSEE'S RESPONSE TO DECADE'S MOTION TO COMPEL LICENSEE'S ANSWER TO FIRST INTERROGATORIES RELATIVE TO FULL-SCALE SLEEVING

" Decade's First Interrogatories and Request For Production of Documents To Licensee On The Full Scale Sleeving Program" were served on February 10, 1982. " Licensee's Response To Decade's First Interrogatories and Request For Production of Documents On The Full Scale Sleeving Program," filed March 1, 1982, included Li'censee's objections to Decade's Interrogatories 1 through 4 (on reactor vessel embrittlement and thermal shock) , Interrogatory 11 (which sought the names 503 of, and other info rmation .about , participants in the sleeving demonstration program), and Interrogatories 15 and 16 (on /!

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leaking plugs). " Decade's Motion To Compel Licensee's Answer To First Interrogatories Relative To Full-Scale Sleeving,"

dated March 28, 1982 (but served no earlier than March 29) seeks to compel Licensee's response to Interrogatories 1 through 4, 11, 15 and 16.1/ For the reasons set forth below, Licensee opposes Decade's motion.

I. Interrogatories 1 Through 4 -

The subject of Interrogatories 1 through 4 -- reactor vessel embrittlement and thermal shock -- is in no way related to the sleeving of steam generator tubes', and is thus totally beyond the scope of this proceeding. Accordingly, Decade has not demonstrated -- nor can it demonstrate -- that the subject of its Interrogatories 1 through 4 "is relevant to the subject matter involved in the proceeding" and that "the information sought appears reasonably calculated to lead to the discovery of admissible evidence." See 10 C.F.R. S2.740(b)(1) and (2)

(emphasis supplied).

" Decade's First Interrogatories and Request for Production of Documents To Licensee On The Demonstration Sleeving 1/ The Motion to Compel is dated March 28, 1982, but is not accompanied by a Certificate of Service, and the postmark on the envelope was blurred. However, also enclosed in the envelope was " Decade's Fecond Supplemental Answer To The ,

Licensee's and Staff's Pirst Interrogatories Relative To Full Scale Sleeving," dated March 27, 1982 but notarized March 29, 1982. Licensee has therefore conservatively assumed that the motion was served on March 29, 1982.

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Program," dated October 23, 1981, included four very similar interrogatories on the subject, to which Licensee objected on the ground that the subject was unrelated to sleeving. At the Board's invitation, Decade attempted to link reactor vessel embrittlement and thermal shock to sleeving. Tr. 565-67.

Unpersuaded by Decade's argument, the Board subsequently expressly rejected Decade's proposed contention, ruling that the voiced concerns were unrelated to the proposed sleeving.

In announcing its decision, the Board noted:

That [the decision] is not to deny that the question of embrittlement is an important one for reactor safety, but it is'to deny that it appropriately appears as part of this proceeding. It does appear as part of an important high level investigation by the Nuclear Regulatory Commission which is ongoing * *

• on an expedited basis.

Tr. 598 [ emphasis supplied]. See also, " Memorandum and Order Authorizing Issuance of A License Amendment Permittimg Return To Power With Up To Six Degraded Tubes Sleeved Rather Than Plugged" (November 5, 1981), at 12.

l Though the Board's oral ruling -- memorialized in its l

j November 5, 1981 Memorandum and Order -- characterized the rejected proposed contention as dealing with " embrittlement,"

Decade had attempted to link thermal shock (as well as embrit-tlement) to sleeving in the context of arguing its proposed contention. See Tr. 565-66. Even in its Motion To Compel, Decade makes the same argument to attempt to relate both reactor vessel embrittlement and thermal shock to sleeving, l

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invoking essentially the same authorities already argued to the Board, and does not -- indeed cannot -- link either embrittle-ment or thermal shock to sleeving any more closely than it did in its original arguments, which the Board rejected.

Decade asserts, at pages 3 to 4 of its Motion, that the Boa'rd's ruling on the relationship between its concerns and sleeving was only a rejection of the proposed contention for purposes of the demonstration program. The plain language of the Board's ruling, including its articulated reasoning --

quoted, in part, above -- indicates that the ruling was not so limited. As the Board implicitly recognized, Decade's ex-pressed concerns are simply unrelated to sleeving, and thus beyond the scope of this proceeding (both with respect to the demonstration and full-scale programs) and outside the juris-diction of the Board.

Such a construction of the Board's ruling is supported by the discussion surrounding the Board's directive to Decade, during the November 5,1981 conference call, to attempt to resolve with Licensee the objections to Decade's demonstration program discovery requests of Licensee. See Tr. 734 ff. The Board clearly distinguished between the " embrittlement" interrogatories ~(which had been implicitly disposed of by the Board's ruling rejecting the proposed contention) and other interrogatories as to which Decade had alleged "the inadequacy of responses." See generally Tr. 735-36, As to the latter, the Board noted that -- although cast as interrogatories on the e

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demonstration program - "some of what (Decade] requested might be relevant in the continuing proceeding." Tr. 783. However, as to the former (the " embrittlement" inte r rog atories) , the Board agreed with counsel for Licensee's observation that the Board's ruling on the proposed contention obviated the need for any further discussion of or action on those interrogatories.

Tr. 736.

Decade's attempts to bring its concerns about embrittle-ment and thermal shock under the umbrella of the Board's broad contention (see Motion, at pages 2-3) are similarly to no avail. The Board had already framed its broad contention prior to its rejection of Decade's proposed contention on these concerns; the Board correctly rejected the proposed contention as impermissibly raising issues beyond even the Board's broad contention.

Decade has devoted a large part of its Motion to stri-dently voicing its concern over embrittlement and thermal shock. Decade has not, however, provided any link between this concern and the proposed Point Beach sleeving. Because Decade has not linked embrittlement and thermal shock to sleeving, Decade has not demonstrated -- and cannot demonstrate -- that the subject of its Interrogatories 1 through 4 "is relevant to the subject matter involved in the proceeding" and that "the information sought appears reasonably calculated to lead to the discovery of admissible evidence," as required by 10 C.F.R.

l S2.740(b)(1) and (2). Accordingly,"its Motion To Compel responses to Interrogatories 1 through 4 should be denied.

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II. Interrogatory 11 By Interrogatory 11, Decade sought "the names, last known address and job title of all persons who were employed by the Licensee or its contractors or subcontractors to perform the fall 19.81 demonstration sleeving program." Licensee objected to the interrogatory on a number of grounds.

First, the wholesale and indiscriminate disclosure 6f the names and addresses of all who participated in the sleeving demonstration program would constitute an undue invasion of personal privacy. By publicly disclosing the requested information, Licensee would be exposing more than fifty individuals (as well as the families of those individuals) to potential annoyance, embarassment, intimidation, oppression, and reprisals, such as harassing and threatening phone calls and vandalism. The nuclear industry differs from most other industrial endeavors in that it is surrounded in cont'roversy often involving strong feeling and emotionalism.

Decade completely ignores the potential for such harass-ment and oppression from invasion of the personal privacy of the individuals whose names it seeks. Decade naively assumes that the invasion of privacy involved would be limited to the

" voluntary, polite interview [s]" which it would seek with "[a]

select number" of the individuals whose identity and occupa-tional affiliation it seeks to reveal. In fact, Decade would have no control over the potential. consequences of such an b

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invasion of privacy once the names were publicly revealed.

Even assuming, arguendo, the truth of Decade's assertion that its proposed infringement on their personal privacy of the subject individuals "is actually significantly less violative of their privacy than that which they have already been subjected to as a condition of employment," such a comparison is of no moment.1/ The extent of the intrusions on personal privacy to which an individual may voluntarily and knowingly expose himself for compensation cannot in and of itself justify the involuntary exposure of that individual to potential annoyance, embarassment, intimidation and oppression of any mag nitude . (In the instant case, of course, there is a substantial potential for such annoyance, embarassment, intimidation, oppression and reprisals) .

The disclosure of personal information such as that sought here should be compelled only where the probative value of the requested information outweighs the potential for annoyance, embarassment, intimidation and oppression which would result from the disclosure. In the instant case, the Board clearly l 2/ Though Decade's broadly-framed interrogatory is not limited to the identities of the temporary workers partici-pating in the sleeving demonstration program, it is apparently the " channel head workers" in which Decade is most interested.

These workers have an even greater expectation of privacy in their identities and af filiations with Licensee's activities than do the permanent employees of Licensee and its con-tractors, since the duration of one's employment (as a practical matter) greatly influences the extent to which one reasonably expects the fact of that employment to become public knowledge.

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has the discretion to deny Decade's motion for disclonure of the requested information. See, e.g., Talev v. Reinhardt, 662 F.2d 888, 898 n.100 (D.C. Cir. 1981) (defendant not required to publicly disclose identities of foreign born employees of Voice of America due to potential for reprisals against such employees' relatives).

The Commission itself has specifically recognized the interests of workers who have been exposed to radiation not to be publicly identified. See, for example, 10 C.F.R.

SS9.5(a)(6) and 9.6 which exempt from public disclosure under the Freedom of Information Act Commission records which are

"[pl ersonnel and medical files and similar files, the disclo-sure of which would constitute a clearly unwarranted invasion of personal privacy." In particular, the Commission regula-tions exempt "[f]iles containing the names of individuals who have received exposure to radiation," 10 C.F.R. 59.5(a)(6)(i)

(emphasis supplied). In the instant case, Decade is asking primarily for the names of workers who have been working in the proximity of channel head radiation levels.1!

3/ It is of interest to note that the only reason Licensee is in possession of the names of the channel head workers (who were not Licensee's employees) is because of the personnel radiation exposure records which the Licensee is required to maintain and forward to the NRC; had Decade made a F.O.I.A.

request to the Commission for the names, it would have been confronted by the Commission's specific disclosure exemption.

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To attempt to justify the invasion of privacy attendant to Decade's proposed discovery, Decade simply alludes broadly to

" severe quality assurance" problems at another plant, and alleges that "[t]o determine the adequacy of the Licensee's l

written procedures to overcome these limitations, it is necessary to perform an independent evaluation of the actual on-the-job experience."A/ Decade has completely failed to provide any information whatsoever to suggest that interviews of the individuals whose identities it seeks to disclose would produce allegations of the type which surf aced at the other

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facility to which Decade refers.

Indeed, all information of record to date about sleeving at Point Beach indicates that "no persons (were) observed or reported to have violated any of the plant's rules or proce-dures in the performance of the demonstration sleeving program." See " Licensee's Response To Decade's First Interrogatories and Request For Production of Documents On The Full Scale Sleeving Program" (March 1, 1982), at 10-11. In light of its utter failure to justify the proposed intrusion on personal privacy, Decade should be relegated to the alternative and proper avenues of discovery available to it.E! See Wright 4/ The implication that Licensee's quality assurance program for sleeving relies exclusively on written procedures is contradicted by the extensive evidence of record in this proceeding. See, e.g., Tr. 610-19.

5/ For example, Decade may properly propound requests similar to Interrogatory 12 to Licensee and", upon the required showing, to the Staff. Alernatively, Decade could place a notice in

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& Miller, Federal Practice and Procedure S2036 (1970)(limits on discovery grow more formidable as showing of need decreases).

However, even if Decade's proposed discovery involved no intrusion whatsoever on personal privacy, its generalized request for the identities of all involved in the demonstration program would still constitute an impermissible fishing expedition, since there has been no indication whatsoever of inadequate training, workmanship or quality control / quality assurance in connection with the sleeving demonstration program at Point Beach.

It is well established that discovery cannot be used to find facts to support an unarticulated claim. See, e.g., Kadar Corp. v. Milbury, 549 F.2d 230, 233 n.2 (1st Cir. 1977); Cohen

v. Illinois Institute of Technology, 524 F.2d 818, 827 (7th Cir. 1975), cert. denied, 425 U.S. 943 (1976); McLaughlin v.

Copeland, 455 F. Supp. 749, 753 (D. Del. 1978), aff'd, 595 F.2d 1213 (3d Cir. 1979). The use of facile discovery techniques to circumvent this accepted proscription was rejected in Segan v.

Dreyfus Corp., 513 F.2d 695 (2d Cir. 1975). There, plaintiff made a generalized assertion of fraudulent conduct, then attempted through discovery to uncover specific fraudulent transactions upon which to base his claim. The Court of

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the local media requesting that persons who participated in the demonstration-program and wish to volunteer information or be interviewed contact Decade.

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d Appeals properly upheld the District Court order denying plaintiff's motion to compel discovery. Here, Decade has advanced a generalized contention (based on allegations of activity at another facility) -- for which it has yet to provide even a shred of support with respect to Point Beach --

which it now attempts to use as a toehold to uncover facts to support new claims.

In the total absence of any indication whatsoever of inadequate training, workmanship or quality control / quality assurance in connection with the sleeving demonstration program at Point Beach, Decade's proposed discovery constitutes an impermissible fishing expedition, an abuse of the discovery process which should not be countenanced by the Board. This is particularly true where, as here, the proposed discovery would involve an invasion of personal privacy and significant i

potential annoyance, embarassment, intimidation and oppression.

Decade's Motion To Compel a response to Interrogatory 11 should be denied.

Decade has asked, in the alternative, that the Board

" commission an independent investigator to interview a random 1

sample of individuals who worked on the demonstration project."

None of the foregoing reasons for nondisclosure of names because of invasion of privacy and relevance are any the less applicable to such a course of action. Moreover, Licensee questions the appropriateness and legality of such an investi-l gation, which would essentially con ~stitute NRC funding of an l

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4 intervenor who is attempting to circumvent the Commission's 1

legitimate discovery limitations. Accordingly, Decade's alternative request should also be denied.

III. Interrogatories 15 and 16 The subject of Interrogatories 15 and 16 -- leaking plugs

-- is in no way related to the sleeving of steam generator j tubes, and is thus totally outside the scope of this pro-ceeding. Decade does not even attempt to relate its allega-tions about leaking plugs to sleeving. Instead, Decade recites a series of alleged fruitless attempts to focus Staff resources on Decade's concerns about leaking plugs, proposes to litigate those concerns in this proceeding, and admonishes the Board on its moral obligation as an arm of an administrative agency charged with protecting the public health and safety.

l Without commenting on the merits of Decade's concerns l

l about leaking plugs, suffice it to say that Decade is simply seeking relief in the wrong forum. The mere availability of a forum before this Board does not permit Decade to inject into this p,roceeding concerns which apparently even Decade concedes are unrelated to sleeving, which is the subject of the license amendment request pending before the Board. See generally

" Memorandum and Order Concerning The Admission of A Party and Its Contentions" (October 13, 1981), at 6.

Accordingly, because the subject of Interrogatories 15 and 16 is wholly unrelated to sleeving, the discovery sought is

impermissible, and Decade's Motion To Compel responses to those interrogatories should be denied.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE 1 s B Pr e > '

W uce W. Churchill, P.C.

Delissa A. Ridgway Counsel for Licensee 1800 M Street, N.W.

Washington, D.C. 20036 Dated: April 12, 1982 5

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