ML20073S294

Answer to NRC 830420 Motion to Compel Conservation Council of North Carolina to Respond to Discovery.Council Is Willing to Negotiate.Council Unable to Answer All NRC Discovery Requests.W/Certificate of Svc.Related Correspondence

ML20073S294
Person / Time
Site:	Harris
Issue date:	05/02/1983
From:	Runkle J CONSERVATION COUNCIL OF NORTH CAROLINA, RUNKLE, J.D.
To:
References
ISSUANCES-OL, NUDOCS 8305060532
Download: ML20073S294 (10)

Text

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• THE CONSERVATION COUNCIL OF NORTH AS ,

307 Granville Road, Chapel Hill, H.C. 27514 i k 7g j (919) 942 7935 or 9421080 (24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />) ',

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,-3 In the Matter of )

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CAROLINA POWER & LIGHT COMPANY ) Docket No. 50-400-OL AND NC EAS"'ERN MUNICIPAL ) 401-OL POWER AGENCY )

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(Shearon Harris Nuclear Power Plant, )

Units 1 & 2) )

CCNC ANSWER TO NRC "0-' ION TO CODiPEL RESPONSE "O DISCOVERY The Conservation Council feels it must respond to the NRC Staff's Motion to Compel CCNC to Respond to Discovery, dated A'p ril 20, 1983 It was our understanding at the February 24, 1983, prehearing conference, later confirmed by the Memo-randum and Order, dated March 10, 1983, that the Board specifically did not require briefs to be filed in motions to compel discovery.

l However, as the Staff has seen fit to do so in this instance, we exercise our right to answer so that our position becomes clear to the Staff and the Board before an Order is entered into.

Permission to answer the Staff'c motion was requested of Judge Kelley by telephone on April 26, 1983 Judge Kelley g therein directed that an answer be submitted by May 2, 1983 and ,

no gg respond briefly to the Staff's motion. We will also take the mn tv opportunity to change some of our positions in response to the 96 Board's mandate and therefore preclude the Board from the

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Page 2 necessity of ruling on all aspects of the Staff's motion.  ;

Eackground and Necotiation On February 4,1983, the Staff served interrogatories on CCNC relating to CCNC Contentions 4, 12, and 14, along with a request for admission relating to the Applicants' ability to safely shut down the plant. A prehearing conference held on February 24 directed responses to all discovery to be made by March 10, which CCNC complied with. Charles Barth, Staff counsel, then called Mr. Runkle of CCNC on March 22 to discuss those responses which Mr. Barth determined inadequate. Mr. Barth was kind enough to put his views in writing in a letter dated March 23, reiterating his position and giving CCNC the opportunity to reconsider our responses to discovery.

Negotiation continued on April 11 when Mr. Barth again called Mr. Runkle. Excluding initial pleasantries, that phone call consisted of the following exchange Barth: What have you done about the letter I sent? Runkle: I am waiting for responses to my interrogatories to the Applicants. Barth: These things cannot wait forever. (based on notes taken immediately after).

The Staff then filed a Motion to Compel CCNC to Respond to Discovery, dated April 20, 1983 We note further that the I Staff has withdrawn several of his objections to our responses which he had stated in his March 23 letter. We will take the opportunity to reciprocate, particulary in our objection to Interrogatory 13 as we now know what the Staff is after.

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Page 3 Discussion I. Interrogatory 13 (Contentions 4,12, 14)

CCNC objected to Staff's general interrogatory 13 which stated:

Provide the name, telephone number and address of each and every person who answered these inter-rogatories. Where more than one person contributed to an answer, identify all persons who contributed to the answer and indicate her or his contribution.

We based our objection that the information sought was the material prepared by our agents, therefore work-product and privileged.

Interrogatory is redundent when one looks at interrogatories 9 through 12 which ask fundamentally the same question. Our objection of work-product was based on the mistaken impression that the staff wanted the contributions, the internal memos and reports, which our agents prepared for us in anticipation of litigation. " Litigation" in the context of Federal Rule of Civil Procedure 24(b)(3) also includes the discovery process. The facts in the documents prepared for trial are the foundation for the other responses to the Staff's interrogatories as we stated in our respones to Staff's interrogatories 1 through 3 for each contention. We will continue to caintain that this material itself is not discoverable without the showing of " good cause" by either the Applicants or Staff because it includes mental impressions, conslusions, opinions, and the like. '

However, from reading the Motion to Compel on pages 6 and 7, especially at the top of page 7, which states:

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Page 4 We want it clearly established that the Staff general interrogatories 1-13 seek the identity of " persons" supporting the intervenors--whether they can qualify as experts is not now either known or at issue.

As long as interrogatory 13 is read to include only those persons who " support" our positions, we will attempt to answer have it. We however/not faced a situation such as Mr. Eddleman describes in his Answer to Applicants' Motion to Compel, dated April 25,1983, where persons provided information with the understanding that their names would not be revealed.

A broad reading of interrogatory 13 runs afoul of Rule 26(b)(4)(3) which protects the contributions of experts or other similar witnesses which a party does not expect to call as a witness at trial. This is done in order to protect a party because such an expert is likely to be adverse. This problem is adressed more fully in a recent memorandum and order, Public Service Comnany of New Hamushire (Seabrook), ASLEP 82 471-02-01, issued on March 24, 1983, and referred to by Mr. Eddleman in i his April 25, 1983, Answer to Applicants' Motion to Compel.

We mention this ruling at this point because the Staff's Motion to Compel in this instance addresses the Ager case, Ager v. Hosnital, l 662 F. 2d 496 (10 Cir., 1980), without giving its holding that l

"once the identities of retained or specially employed experts are disclosed, the protective provisions of the rule concerning

! facts known or opinions held by such experts are subverted." Id.

at 503. The Seabrook decision endorses this position.

Further, the Staff relies on the Susouahanna decision which allowed interrogatories fairly similar to those asked by the Staff.

Page 5 Susquehanna can not be read to say that general interrogatories must be answered even if there are legitimate objections to them.

If the Staff limits the scope of their question to those " persons" which we relied on to answer the interrogatories, then we will do so, even if it repeats our responses to the proceeding four interrogatories, as follows:

Interrogatory 13 (Contention 4)--No person supplied any of the information in the answers to these interrogatories. We will notify the Staff if and when we have enough information from the Applicants through discovery; at that point, we will have an expert to review the information and provide the analysis to answer the above questions fully.

Interrogatory 13 (Contention 12)--Dan Besse prepared a written report on the subject of the Jordan Dam Break which was used to answer interrogatories under Contention 12. His address and phone are given in response to Interrogatory 10 under this contention.

Interrogatory 13 (Contention 14)--Cecil Frost prepared a written report on the subject of Hydrilla which was used to answer interrogatories under Contention 14 His address and phone are given in response to Interrogatory 10 under this contention.

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Page 6 II. Interrogatories 23, 24, 26, 28, 29 30, 33, 36, 37 (Contention 12)

Contention 12 states that the Applicant has not considered

- the effects of the Jordan Dam break, and that such a break potentially could have a severe adverse impact on the SENPP.

Our purpose for Contention 12 is to gather information from the Applicants through discovery in order to determine what those effects are. The Staff finds our delay until we have that information unacceptable.

The Staff finds our assertion that dams do not fail to be meaningless. We would like todraw an analogy of the " hypo-thetical" dambreak to the equally " hypothetical" earthquake.

Seismic analysis begins with the possibility that an earthquake may happen, especially if the plant is on a fault. Analogous is a large earthen dam sitting on a river upstream from the intake channel and cooling reservoir of the nuclear power plant.

Analysis is not made when and how the earthquake will occur but whether the plan can safely withstand the pressures an earthquake would create. It makes no difference how the dam will break (and hopefull it never will). Our assertion is that I the Applicant had better determine if their plant can withstand the flood.

It was extremely difficult for us to analyze the effects of the dambreak until the crucial information was received from the Applicants through discovery. We cannot take pressure readings over two years in each of the dan structures that the Applicants control. The Staff's insistence that their interroga-l l tories must be answered before we have necessary information to l

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make a detailed analysis is intolerable. Often intervenors must do the Applicants' job for them. Several of the interroga-tories the Staff submitted to CCNC could have generated much fuller data if those same interrogatories had been submitted to the Applicants.

At this point we must allow our responses to stand as we cannot provide responses to the Staff without reponses from the A pplicants .

III. Interrogatories 60 43 (Contention 14)

Again, we must again rely on our responses, many of which incorporate our responses to the Applicants by reference. It was our understanding from our March 22 phone call with Mr. Barth that incorporation of our responses to Applicants was acceptable to them. We therefore find their demand for "an answer, not a reference to someting else" on page 8, paragraph 1, of their motion to compel to be uncalled for. Regardless, if the Staff has as their main concern the identity of the intake valves in question, we will answer that as follows:

Interrogatorv 40--All of' the valves which either allow water from the reservoir into the plant itself or which touch that water are subject to clogging by hydrilla.

l The remainder of the interrogatories under this contention ,

i l are again in most part contingent upon responses given us by the Applicants. The Applicants should know the location, size, and water speed of these valves and the same interrogatories l .

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s Page 8 sent to us,1f sent to the Applicants would j reap a bigger harvest.

Further, the specifications of the valves are no doubt in the FSAR.

s IV. Oath The oath was included on page 15 of our response to the Staff, dated f.Carch 10, 1983 If the Staff did not receive that page I apologize and will send them a copy of that page immediately.

If possible I would like that oath to cover the responses to interrogatories which are included in this filing.

V. Request for Admission We find the Staff's position in regards to their request for admission to be over-extended. Their request for admission is on one of the issues we will litigate in this matter. We do not find the Staff's assertion that "(t)he Harris Westinghouse PdR units are so designed as to be able to be brought to cold shutdown without using the main condensers," (page 8, third paragraph) to be reassuring.

We could have denied the admission for various reasons--

the Jordan Dam break, hydrilla infestation, or the Applicants' general incompetence, for example--which could prevent cold shut-down. We did not do so until we have received responses from the Applicants to prevent the possibility of denying the statement and then reversing our position if our later analysis proved our initial position to be false.

Nowhere in the regulations does it state that from the moment a contention is initially submitted the intervenor's whole case l

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Page 9 must be in final form, ready for the hearing. The Staff's insistence that we are derelict in our obligation if we do not have our full case prepared now, at least eight months before the first hearing, is regrettable.

Conclusion We are willing to negotiate and certainly will share the responsibility for the failure of this round of negotiations to be resolved. We will not be able to answer all of the Staff's interrogatories and requests for admission until we manage to get information we need from the Applicants.

Respectfully submitted, John Runkle Attorney-at-Law Conservation Council of NC May 2, 1983 Attachment--Service List 0

. . o CERTIFICATE OF SERVICE I hereby certify that copies of this filing were served this- 2^d day of diAy , 1982,bydepositintheU.S.

mail, first class, postage prepaid, or by hand-delivery, to

. the following:

James L. Kelley Ruthanne G. Miller Atomic Safety and Licensing Board Atomic Safety and Licensing US Nuclear Regulatory Cormdssion Board Panel ishington, D.C. 20555 US Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Glenn O. Bright same address Dr. Phyllis Lotchin

- 108 Bridle Run Dr. James H. Carpenter Chapel Hill, NC 27514 same address Karen E. Long, Esq.

Charles A. Barth.

Office of Executive legal Director Public Staff, Utility Commission PO Box 991 US Nuclear Regulatory Commission Raleigh, NC 27602 Washington, D.C. 20555 Bradley W. Jones, Esq.

Docketing and Service Section -

US-NRC, Region II Office of the Secretary 101 Marrietta Street US Nuclear Regulatory Concission Atlanta, GA 30303 Washington, D.C. 20555 Daniel F. Read Richard E. Jones Chapel Hill Anti-Nuclear Group Vice President and Senior Counsel Carolina Power & Light Company FC Box 524 Chapel Hill, NC 2751h PO Box 1551 Raleigh, NC 27602 M. Travis Payne George F. Trowbridge Edelstein and Payne ,

Shaw, Pittman, Potts & Crowbridge OC tox 12643 1800 M Street, N.W.

Raleigh, NC 27605 .

Washington, D.C . 2003a.

Dr. Richard D. Wilson 729 Hunter Street l

Apex, NC 27502 i

! Wells Eddleman J6Kn Runkle, J.D.

718-A Iredell Street Conservation Council of North Durham, NC 27705 Carolina

, Patricia and Slater Newman Citizens Against Nuclear Power f

2309,Weymouth Court Raleign, NC 27612 gggg An5yge b %h l

600tifh YD (e!nft 63 C es R d Efoh16hd)>UOV4V[

Raleigh, NC 27606 l

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