ML20076M241

Motion to Compel California Governor Deukmejian Answers to 830610 Interrogatories.Certificate of Svc Encl.Related Correspondence

ML20076M241
Person / Time
Site:	Diablo Canyon
Issue date:	07/12/1983
From:	Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8307200203
Download: ML20076M241 (15)

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VI.7..Y w-1 UNITED STATES OF AMERICA C C 'M 2 NUCLEAR REGULATORY COMMISSION O

JUL 181983 .-i S'*- #4 ca.e de 9 ......,ms.

4 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 5 -

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7 In the Matter of )

8 ) Docket No. 50-275 O.L.

PACIFIC GAS AND ELECTRIC COMPANY ) Docket No. 50-323 0.L.

9 )

Diablo Canyon Nuclear Power Plant ) (Reopened Hearing --

10 Units Nos. 1 and 2 ) Design Quality

) Assurance)

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12 13 14 MOTION TO COMPEL ANSWERS TO INTERROGATORIES 15 TO GOVERNOR DEUKMEJIAN 16 17 18 Pursuant to 10 CFR $ 2.740(f)(1), Licensee moves 19 the presiding member of this' Board, and members thereof, for 20 an order compelling Governor Deukmejian to answer the

• l 21 interrogatories' set forth below. Said interrogatories to I 22 Governor Deukmejian were served by Licensee on June 10, 23 1983 and were responded to by Governor Deukmejian by service 24 by mail on June 27, 1983. Without obtaining a protective 25 order pursuant to 10 CFR 2. 74'0 ( f) (1) , Governor Deukmejian 26 jff ,,

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l 1 failed to answer or answered in an unresponsive manner the

. 2 said interrogatories set forth below. "In the absence of a 3 motion for a protective order, a Board may not excuse 4 failures to respond to discovery requests regardless of how 5 objectionable the . discovery may be." Illinois Power 6 Company, et. al. (Clinton. Power Station, Unit 1) LBP-81-61, 7 14 NRC 1735 (1981).

8 INTERROGATORIES 9 INTERROGATORY NO. 3:

10 Identify all examinations, reviews, studies, 11 analyses, or the like, conducted, initiated, or anticipate'd 12 to be conducted by or for you sincE September 1981 relating 13 in whole or part to design quality assurance or design 14 activities at Diablo Canyon. As to each such study, 15 analysis, or the like, state:

16 (a) The date of preparation or anticipated 17 preparation.

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(b) The name of each and every person who 19 has or will contribute to the effort.

20 (c) The cohtribution of each person 21 identified in your answer to 3(b).

22 ANSWER TO INTERROGATORY NO. 3:

23 The Governor objects to this interrogatory insofar 24 as it requests materials prepared in preparation for 25 litigation, without making the showing required by 10 CFR 26 ///

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1 2.740(b)(2). This objection does not necessarily imply the

. 2 existence of any such material.

3 Excluding any possible examinations, reviews, 4 studies, or analyses prepared for litigation, no such 5 materials have been prepared, except such reviews of PG&E's 6 quality assuranc.e program.as are described in the affidavits 7 filed by the Governor in this case, during his period of-8 participation in this case. No future reviews are presently 9 planned except for possible reviews for litigation purposes.

10 ARGUMENT 11 10 CFR 2.740(b)(1) specifies that a party may 12 obtain discovery regarding any matter, not privileged, which 13 is relevant to the subject matter. In Interrogatory 3, 14 Licensee has asked for information to identify what 15 reports, studies or analyses have been conducted.

16 Information as to the existence, identity, or author of any 17 ' report, study or analysis is not production of that study, 18 analysis"or report. The protection of 10 CFR 2.740(b)(2) 19 extends only to discovery of " documents and tangible 20 things." Wright & Miller,' Federal Practice and Procedure, 21 Civil 5 2024.

22 Further, before the Governor may claim privilege 23 of certain documents, he must identify what those documents 24 are. Otherwise this board cannot ascertain whether that 25 which is not produced actually is privileged as claimed.

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1 INTERROGATORY NO. 5:

. 2 Identify each and every structure at Diablo Canyon 3 that you believe to be "important-to-safety", but which is 4 not classified as design Class I. As to each such structure 5 identified, state: .

6 (a) The bases for your opinion that the 7 structure should be considered "important-to-safety".

8 (b) Each regulation which, in your opinion, 9 requires each such structure to be classified as 10 "important-to-safety".

11 (c) The date upon which each such regulation 12 required each such structure to be'so classified.

13 ANSWER TO INTERROGATORY NO. 5:

14 No answer can presently be given to this 15 interrogatory at this time. Section 3.2 of the Final Safety 16 Analysis Report (FSAR) is now being reviewed , but each and 17 every structure that is important to safety cannot be 18 determined because of the lack of identification in the FSAR 19 ef each and every component and system meeting NRC 20 regulatory criteria for classification as important to 21 safety. This response will be seasonably supplemented at 22 such time, if any, as such a determination can be made.

23 In an attempt to be fully responsive to this 24 interrogatory, , the fo'llowing, which will be considered in l

l 25 making the review described above, are identified:

l 26 (a) The FSAR; i

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1 (b) Relevant NRC regulations, guidelines, and 2 regulatory guidance documents; 3 (c) The NRC Standard Review Plan; 4 (d) The Diablo Cany on plant technical 5 specifications';

6 (e) The Diablo Canyon emergency o'perating 7 procedures; 8 (f) The preliminary EG&G report entitled 9 " Identification and Ranking of Nuclear Plant 10 Structures, Systems, and Components, and Graded Quality 11 Assurance Guidelines -- Draft" prepared for the NRC, 12 and bearing the number EGG-EA-6109; 13 (g) Information supplied by PG&E in response to 14 interrogatories and requests to produce documents.

15 INTERROGATORY NO.~6:

16 Identify specifically each and every system at

. .17 ' Diablo Canyon that you believe to be "important-to-safety",

~ 18 but which' is not classified as design Class I. As to each

'19 such system identified, statb: ,

. 20 (a) The bases for your opinion that each 21 such system sh'ould be considered ' "important-to-safety" .

L22 (b) Each regulation which, in your opinion, 23 requires each such system to be classified as 24 "important-to-safety".

25 (c) The date upon which each such regulation 26 required each such system to be so classified. ,

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1 ANSWER TO INTERROGATORY NO. 6:

. 2 This interrogatory cannot be answered at this 3 time. Section 3.2 of the Final Safety Analysis Report 4 (FSAR) is now being reviewed, but each and every system that 5 is important to safety cannot yet be determined because of 6 the lack of identification in the FSAR of each and every 7 component and system meeting NRC regulatory criteria for 8 classification as important to safety. This response will 9 be seasonably supplemented at such time, if any, such a 10 determination can be made.

11 In an attempt to be fully responsive to this

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12 interrogatory, the following, which will be considered in 13 making the review described above, are identified:

14 (a) The FSAR; 15 (b) Relevant NRC regulations, guidelines, and 16 regulatory guidance documents; 17 (c) The NRC Standard Review Plan; 18 '(d) The Diablo Canyon plant technical 19

• specifications; 20 (e) The Diablo ' Canyon emergency operating 21 procedures';

22 (f) The preliminary EG&G report entitled l

23 uIdentification and Ranking of Nuclear Plant

[ 24 Structures, Systems, and Components, and Graded Quality 25 Assurance Guidelines -- Draft" prepared for the NRC, l 26 and bearing the number EGG-EA-6109; ,.

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1 (g) Information supplied by PG&E in response to 2 interrogatories and . requests to produce documents.

3 INTERROGATORY NO. 7:

4 Identify specifically each and every component at 5 Diablo Canyon that 7fou believe to be "important-to-safety",

6 but which is not classified as design Class I. As to each' 7 such component identified, state:

8 (a) The bases for your opinion that each 9 such component should be considered "important-to-safety".

10 (b) Each regulation which, in your opinion, 11 requires each such component .to be classified as 4

12 "important-to-safety".

13 (c) The date upon which each such regulation 14 required each such component to be so classified.

15 ANSWER TO INTERROGATORY NO. 7:

- 16 This interrogatory cannot be answered at this 17 ' time. Section . 3.2 of the Final Safety Analysis Report l 18 (FSAR) is' being reviewed, but each and every component that

19 is -important to safety cann6t yet be determined because of 20 the lack of identification' in the FSAR of each . and every i

21 . component and system meeting NRC regulatory criteria for a

22 classification as important to safety. This response will- '

i l i 23 be seasonably- supplemented at' such time, if any, such a 24 ' determination can be made. .

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~-9 1 In an attempt to be fully responsive to this

. 2 interrogatory, the following, which will be considered in 3 making the review described above, are identified:

4 (a) The FSAR; 5 (b) Relevant NRC regulations, guidelines, and 6 regulatory guidance documents; 4

7 (c) The NRC Standard Review Plan; 8 (d) The Diablo Canyon plant technical 9 specifications; 10 (e) The Diablo Canyon emergency operating 11 procedures; 12 (f) The preliminary Ed&G report entitled 13 " Identification and Ranking of Nuclear Plant 14 Structures, Systems, and Components, and Graded Quality 15 Assurance Guidelines -- Draft" prepared for the NRC, I6 and bearing the number EGG-EA-6109; 17 (g) Information supplied by PG&E in response to 18 inteYrogatories and requests to produce documents.

19 7.RGUMENT (Interrogatories 5, 6, and 7) 20 In Answer to Inthrrogatory No. 8, the Governor 21 sets forth the' claimed expertise of Rich'ard Hubbard upon 22 whose affidavits his motion to reopen is based. If Mr.

23 Hubbard is the expert that he is claimed to be then he 24 should have no.diffictilty identifying what sturcture, system 25 or component is "important to safety" as specified in the 26 interrogatory. Regardless of whether any analysis of the 9

'O 1 FSAR or any other document listed may be finally complete,

. 2 Mr. Hubbard should be capable of providing answers at this 3 time based upon his claimed extensive knowledge of nuclear 4 power plants. The response of the Governor is a veiled 5 attempt to hide from Licensee and the Board what the 6 Governor's posit. ion is in this regard.

7 Mr. Hubbard in his affidavits has made certain-8 allegations related to matters "important to safety, " and 9 " safety related." In order to prepare for its case Licensee 10 needs to understand the extent of and the meaning of such 11 allegations. Information necessary for preparation of the 12 case is discoverable. M re Folding Carton Anti-trust 13 Litigation 83 FRD 256, 259 (N.D.Ill. 1979), Flour Mills of 14 America v. Pace 75 FRD 676, 680 (E.D.Okla. 1977), See 15 4 Moore's Federal Practice Section.33.14.

16 INTERROGATORY NO. 14:

17 List each ITR, with revision number, that you have 18 reviewed'to date. As to each ITR, state specifically:

19 ,(a) Each fact stated therein with which you 20 disagree.

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-(b ) The specific page(s) of each ITR where 22 the fact (s) set forth in your answer to 14(a) is located.

23 (c) Each conclusion or opinion stated 24 therein with which yoth disagree.

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1 (d) The specific page(s) of each ITR where l 2 the conclusion (s) or opinion (s) set forth in your answer to 3 14(c) is located.

4 (e) The specific bases for your disagreement j 5 with each such fact, conclusion or opinion.

6 ANSWER TO INTERROGATORY NO. 14:

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} 7 Thusfar, ITR numbers 18 (Rev. 1), 20 (Rev. 2), 21 8 (Rev. 1), 22 (Rev. 1), 23 (Rev. 1), and 24 (Rev. 1) have 1

9 been reviewed on a preliminary basis. This review is still 10 continuing, and until it is completed, those statements, 11 conclusions, or opinions in each ITR to which exception is 12 taken cannot be identified.

13 ARGUMENT 14 Licensee is clearly entitled to know what portions 15 of any ITR that the Governor takes issue with. If in fact 16 there is any material change after preliminary review, then, 17 as provided in 10 CFR 2.740(e), the Governor may file a 18 supplemental response. If in fact, the Governor has no 19 opposition to any ITRs reviewed to date, then Licensee and 20 this Board are entitled to' know that fact. A part? may 21 inquire into matters that relate to his own case. Cook 22 Paint and Varnish Co. v. Cook Chemical Co. 8 FRD 93, 96 23 (W.D.Mo. 1948), 4 Moore's Federal Practice $ 33.14.

24 Interrogatories seeking to elicit what a party's 25 contentions will be at the time of trial are not 26 objectionable since responses will help narrow the issues t'o s

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1 be tried. Anderson v. United Air Lines 49 F.R.D. 144, 148 2 -(S.D.NY 1969), Meese v. Eaton Mfg. C_o . 35 F.R.D. 162, 165 3 (N.D. Ohio 1964).

4 INTERROGATORY NO. 16:

5 State specifically all direct personal knowledge 6 that you have regarding: -

7 (a) The design of Diablo Canyon.

8 (b) The design quality assurance programs 9 for Diablo Canyon.

10 (c) How such direct personal knowledge was 11 acquired.

o 12 ANSWER TO INTERROGATORY NO. 16:

13 The- Governor's attorneys, consultants, and 14 employees have varying degrees of personal knowledge of the 15 design and quality assurance of the Diablo Canyon facility 16 based on tours of the facility at which PG&E or Bechtel 17 . employees were present, and on review of documents, 18 meetings ,- and testimony pertaining to such design and 19 quality assurance. The degree of personal knowledge of any 20 person depends upon the number and completeness of' tours

• 21 taken or meetings attended, and the volume of documents and 22 testimony read by each person.

23 ARGUMENT 24 The-response of the Governor is a non-response.

25 Licensee asked for a specific statement of direct personal

, 26 knowledge of the Governor or those he relies upon in his e

1 1 motion. If there is no direct personal knowledge, Licensee

. 2 is entitled to such information as such goes directly to the 3 weight of the Governor's contentions. Cook Paint and 4 Varnish Co. v. Cook Chemical Co. 8 FRD 93, 96 (W.D.Mo.

5 1948); 4 Moore's Federal Practice S 33.14. If the 6 " Governor's attorneys, consultants, and employees have 7 varying degrees of personal knowledge of the design and 8 quality assurance of the Diablo Canyon facility . . . ,

" as 9 claimed in the non-responsive answer, then the Licensee is 10 entitled to know precisely, as asked, what that personal 11 knowledge is. To say, as the Governor does, that we have'

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9 1 " varying degrees" of such knowledge simply ignores the

. 2 question.

3 4 Respectfully submitted, j

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ROBERT OHLBACH PHILIP A. CRANE, JR.

6 RICHARD F. LOCKE Pacific Gas and Electric Company 7 P.O. Box 7442 San Francisco, California 94120 8 (415) 781-4211 9 ARTHUR C. GEHR Snell & Wilmer 10 3100 Valley Center Phoenix, Arizona 85073 11 (602) 257-7288 12 BRUCE NORTON Norton, Burke, Berry & French, P.C.

13 P.O. Box 10569 Phoenix, Arizona 85064 14 (602) 955-2446 15 Attorneys for Pacific Gas and Electric Company 17 h 18 By ) k Bruce Norton 19 -

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DATED: July 12, 1983.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4 '

In the Matter of ) '6N PACIFIC GAS AND ELECTRIC COMPANY ,)

) 3, Docket No. 507275 W \

gy

) Docket No. 50432 Diablo Canyon Nuclear Power Plant,-) r3 8 983 > [*7 Units 1 and 2 ) M 12

). Q m m s.c.cy;;;gus-CERTIFICATE OF SERVICE The foregoing document (s) of Pacific Gas and Electric Company has (have) been served today on the following by deposit in the United States mail, properly stamped and addressed:

Judge John F. Wolf - Mrs." Sandra A. Silver Chairman 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission Washington DC 20555 Mr. Gordon Silver 1760 Alisal Street

' Judge Glenn O. Bright San Luis Obispo CA 93401 Atomic Safety and Licensing Board US Nuclear. Regulatory Commission John Phillips, Esq.

Washington DC 20555 Joel Reynolds, Esq.

Center for Law in the Public Interest Judge Jerry R. Kline 10951-W. Pico Blvd. - Suite 300 Atomic Safety and Licensing Board Los Angeles CA 90064 US Nuclear Regulatory Commission Washington DC 20555 David F. Fleischaker, Esq.

P. O. Box 1178 s Mrs. Elizabeth Apfelberg Oklahoma City OK 73101 c/o Betsy Umhoffer 1493 Southwood Arthur C. Gehr, Esq.

San Luis Obispo CA 93401 Snell & Wilmer 3100 Valley Bank Center Janice E. Kerr, Esq. Phoenix AZ 85073 Public Utilities Commission State of California

• Bruce Norton, Esq.

5246 State Building Norton, Burke, Berry & Fre.nch, P.C.

350 McAllister Street P. O. Box 10569 San Francisco CA 94102 ,

Phoenix AZ 85064 ,

l Mrs. Raye Fleming Chairman 1920 Mattie Road Atomic Safety and Licensing Shell Beach CA 93449 Board Panel US Nuclear Regulatory Commission Mr. Frederick Eissler Washington DC 20555 Scenic Shoreline Preservation

, Conference, Inc. .

4623 More Mesa Drive -

Santa Barbara CA 93105 l

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Chairman -

Judge Thomas S. Moore 2 Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing US, Nuclear Regulatory Commission Appeal Board Washington DC 20555 US Nuclear Regulatory Commission Washington ~ DC 20555 Secretary US Nuclear Regulatory Commission Judge W. Reed Johnson Washington DC 20555 Atomic Safety and Licensing Appeal Board Attn: Docketing and Service US Nuclear Regulatory Commission Section Washington DC 20555 Lawrence J. Chandler, Esq. Judge John H'. Buck Jack R. Goldberg, Esq. Atomic Safety and Licensing

• US Nuclear Regulatory Commission Appeal Board Office of Executive Legal Director. US Nuclear Regulatory Commission Washington DC 20555 Washington DC 20555 Mr. Richard B. Hubbard Michael J. Strumwasser MHB. Technical Associates Susan L. Durbin 1723 Hamilton Avenue, Suite K Peter H. Kaufman San Jose CA 95125 3580 Wilshire Blvd. Suite 800 Los Angeles CA 90010 Mr. Carl Neiberger Telegram Tribune

. P. O. Box 112 San Luis Obispo CA 93402 4

Date: July 12, 1983 -

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P4cific Gas /and Electric Company

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