ML20077J061

Motion to Compel Discovery Re Original Applicant Responses on 64F,67,G8 & G9

ML20077J061
Person / Time
Site:	Harris
Issue date:	08/08/1983
From:	Eddleman W EDDLEMAN, W.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20077J062	List: ML20077J061 ML20077J068 ML20077J076 ML20077J081
References
82-468-01-OL, 82-468-1-OL, ISSUANCES-OL, NUDOCS 8308120217
Download: ML20077J061 (8)

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DOCKETED us.vc UNITED STATES OF AMERICA

, August 8,1983 NUCLEAR REGULATORY COMMISSION '83 AUG 11 A10 50 CFFRECi SECRt :

00CKE71NG A SEFc BEFORE THE ATOMIC SAFETY AND LICENSING BOARD BRAtci Glenn O. Bright Dr. James H. Carpenter James L. Kelley, Chairman In the Matter of

) Dockets 50 400 OL CAROLINA POWER AND LIGHT CO. et al. ) 50-401 OL (Shearon Harris Nuclear Power Plant, )

Units 1 and 2) ) ASLBP No. 62-h68-01

} OL Motion to Conpel Discovery re Original Applicants ' Resnonses on 6M, 67, and G8 and G9 This motion follows the breakdown on 7-29-83 of negotiations concerning the 5-P7 resnonse of Annlicants re the above. I believe Applicants will take a different view of the timeliness of this (it's 10 days from 7-29): see attached Certificate of Negotiations.

The argunents herein on G-8 and 0-9, by agreement with Annlicants as set out in past (and possibly future) certificates of negotiations and notions to compel, cover those issues (aunropriateness of G-8 and G-9) for other sets also. As noted in the attached certificate of negotiations, timeliness objections to .this notion would not affect the apnlicability (or tineliness) of these arguments to those other sets of . interrogatory responses.

The first unresolved dispute in this set of resnonses (F-27 Applicants' Resnonses re 6hf and 67 (Second SET), is 'e interrpgatories G-8 and G-9 at pages 7-11. I limit ny request to compel now to information which Applicants currently possess, as my understanding 8308120217 830808 e gDR ADOCK 05000;& 9503

of the legal cases cited by counsel O'Neill (Central Hide Rendering ,

at 294{ and UINTA OIL at 50h, e.g. , citations onitted) is that only information they currently possess can be inquired about. Nor do I seek their plans or work product or other privileged information, though Applicants have not directly cited any such privileged information they withhold. I understand such interrogatories (seeking privileged infornation, work product, and the like) are improper, but point out that Apnlicants have propounded sone interrogatories to ne seeking "all facts" which can eoually as well be read as seeking such privileged info as can ny G-8 and G-9.

In any event, I do not seek orivileged informat'on, nor infornation not currently known to Aunlicants.

Apnlicants cite US V. Grinnell, 30 PRD 358 (1962) at 362 as a basis for their objections, but when you look at the specific interrogatories Grinnell finds unreasonable, they are exactly in a forn Apnlicants use in this case: Question; give all reasons for an affirnative answer to the question; E l ve all reasons for an other than affirmative answer to the ouestion.

Moreover, G-8(a ) and (b) go to the past, not every detail of Applicants ' case. This can be seen by reading those interrogatories (see 5-27 response at 7 or interrogatories 4-22). G-9 as written would be objectionable on these grounds but has been delinited (see i above) to conform to the cases as I understand then. Negotiations did not succeed in resolving the innasse under such deliniting.

UINTA Oil, another case Applicants rely on, actually says (see at h95; 226 F Supn 495, (1964)) that interrogatories seeking each and every detail of evidence . . . plaintiffs intended to rely on at trial . . . were objecti'nable as premature." (ennhasis added).

Footnote 7 to the sane decision (p. 497) says that the trial in U iINTA

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011 was nore than 6 nonths away when this decision (re prenaturity of interrogatories ) was reached.

But in this case, the closing deadline for interrogatories (june 30, 1983) is nore than 6 nonths fron the date of hearing.

Continuing interrogatories do not anpcar to be objectionable under any decision Applicants cite (indeed, they use then throughout their interrogatories, see at 2 in any set).

these cuestions

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Thus, the only way for ne to get in (G 9 and g-9) to be answered at all is to file daen by June 30. It surely works no prejudice to Applicants to have then filed earlier, since that sinply gives then nore notice of what I'n asking for. (It also negotiations and gives more time for things likeqthis motion to conpel to be resolved.)

UINTA 011 also says factual basis of claims and contentions nry reasonably be inquired (p.505) (This is G-8 entirely, and G-9 asks also for other basis of answers given or facts relied on.)

Moreover, UINTA (also at 505) says that no narrow view of the (discovery) rules is being taken. Much language cited above pp503-50h p in UXINTA shows that by the time of trial, nutual knowledge of all the relevant facts Eathered by the earties is essential to proper litigation (quotingU 329 Us at 507, 67 S Ct at 392, L Ed h51) and thatY by the time of the final pretrial conference, each party nust have access to the detail as well as substance of all the relevant facts in the setting of their intended use at trial". At p 50h, UINTA declares "there can be no rigidity at all in those broad aspects of the exercise of discretion" (re discovery). Read literally, such discretion and the above language enn be seen to show that G8 and G9 are proper interrogatories under the tining constraints on discovery in this NRC proceeding. Federal rules and decisions on procedure can be applied in NRC proceedings

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(Publio Service Co. of Indiana, Marble Hill, ALAB-37h, 5 N9C E17 at 421, additional views of Mr. Farrar, joined in by the entire Boawd).'

But in considering whether to follow such guidance, the Anneal Board has ruled that there should be inquiry into the situation to determine if it is analogous to (that for a federal rule ) and whether the policy rationale underlying the rule is nersuasive. Consumers Dower Co.

Midland, ALAB-379, 5 N9C 565, 588 at n. 13 (1977)). An analbgous test for the situation should be made- for anplying federal court decisions. This Board nade such a test in its recent ruling (5-27-83) on a motion to compel by Apolicants.

Is this situation like those Annlicants cite in their objection to G-8 and G-97 The situation of G-8 (as restricted to. present knowledge and no privileged information) has no analogue in the cases cited by Annlicants. As to G-9 (aniso as restricted in scone, see at 1-2 above), the specific circumstances of this case (the last day for filing interrogatories being 6 months or nore before trial) invalidate the rationale used in UINTA oil: it sinnly isn't applicable to this case, where of necessity such an interrogatory would come 6 nonths or more before trial (and thus be "prenature"). Applicants' cases don't apply because g{ p.

this situation differs. f 6g gbyUINTAat506allowsrephrased,nofe$

snecific interrogatories even for those rejected. This is an option here, though negotiations along thoso lines have not net with success yet.

UINTA at 501 says that objections of breadth and burdensoneness for interrogatories like my G-8 and G-9 isn't appropriate. Relevant questions (G-8 and G-9 ask about facts relevant by definition to this proceeding) are allowed (ibid: "it calls only for relevant informa ti on " ) . The above paragranhs re renhrasing and objections DO apply in this case, in that the reasons for then and their l

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. underlying rationales as stated in the cited decisions, do apply a

here. This is a complex case, analogous in that way to UINTA.

Finally, as to the objection that I an seeking evidence directly, (G-8 and G-9 are net limited to facts Apnlicants will introduce into evidence; documents in evidence are covered by other Eddleman general interrogatories, as are facts known re answers to the interrogatories), Applicants ' own cited case, Fishnan

v. H Riise Gift Shop, 68 FDD 70h (1975), holds only that a motion to use oral deposition instead would be. granted where interrogatories were "used not to obtain information that night lead to discovery of admissble evidence but rather in a naked attempt to procure evidence directly." citing Federal Rules of Civil Procedure 26(a),(c )(3), 28 USCA.

Were denositions nove appropriate, I would not, of course, object to using then.

• See other connent, p.8, relating to p.h above.

SPECIFIC INTERROGATORIES Annlicants' attorney Baxter has agreed to check to see if the supplementa O'Neill and I discussed June 1 re these answers have been sent. He'll call me if they have. As ncted in ny certificate of negotiations, I can 't locate any; I recall receiving nothing not noted in that certificate (atta che d) .

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I would ask that if Applicants have not nade such a sunplement, l they be compelled to sunnlement as they had ag*eed. Othevxwise, l

l it should not nake nuch sense to negotiate with them, si*. ce their commitments could be readily avoided by failing to produce what was agreed on to be produced.

I do not agree with Apelicants' view that a question relevant to the contention is nobted by their present intent to remove the valve from their IF-300 shipping cask. They can change their ninds.

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1 In the absence of an irreversible connitnent to take the valve off, .'

and le ave it off, questions about the valve are relevant. This - 1 ann 11es to answers such as 6h-1(a), pp 11-12, 6k-2(b) and fc11owing, e.g. c(i) and c(ii) all p.13 For 63-3(b)(vi) and (c) (pp 15-16) the full nethod including thernal response curves, pressure curves and so on should be given in response to each answer. Apnlicants' counsel was to check on this and get back to no. ,

6h-h Answer to (c ) should be a temperature. The answer given is sonewhat evasive. (e) and (f) of the same questien (p.17) should be answered as long as the valve is on the cask.

Answers to 6h-6(d)(e)(f)(g) and (h) are relevant to the contention and should be answered. " intent" to chnnge the situation doesn't absolve Applicants of the duty to answer questions about the situation. (e.g. , of the valve on Un e cask, or cask valves).

64-7(a) As noted in certificate of negotiations, I accept Arp11 cants ' resnonse to this.

64-9(c)(d)(e)(f) pp 20-21, Applicants feel are irrelevant but do not state a reason. The sinilerity of cask valves to others (and the similarity of requirenents) are relevant to the issue of valve failure on a shipping cask. If requirenents are the sane, the lack of additional requirenents on valves subjected to the I

vibrations and accidents of transit is questionable and relevant.

As to valves s ticking open, that's the natter of the con tention and you can't get nore relevant. Basis of answers is relevant when the questions are relevant (seek relevant information).

Apnlicants' "not applicable" statenent without basis, I inauired and found it was the renoval of the valve. As shown above, this basis is invalid since the valve isn't renoved, just intended to be.

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. ~7- l RE CONTENTION 67 interrogatories 67-2 (pp 22-23 of 5-27 resnonse). Applicants object that what their enployees, officers and consultants nay have done about the terns, formation, etc of the Southeast Interstate LOW-Level Radioactive Waste Managenent Connact is irrelevant.

I db. ink that, knowing what they did, I could discover admissible evidence: Why did they seek to influence its terns (if they did), and what did they seek to gain? Did they set teens or conditions which might be unsafe for the nurlic, or establish structures renoved from nublic control, to gain advantage of chean low-level radioactive waste disposal or assurance that they could use the disnosal in spite of possible violations by CP&L (e.g.

disnosing or of dainning and transnort requirements,pburying as "LLW" items which are not low-level, but nore radioactive? etc.

If the truthful answer is "We did noth?.ng", then Applicants could have just said that. Without an answer to my snecific questions in this fairly detailed intevrogatory, I can 't get any closer to admissible evidence.

6 7 - 14 (pp 24-25, Apnlicants object to answering (I think their handling of Brunswick waste does show what kind of onevation they run and could lead to evidence regarding violations of shipping regulations etc that affect CP&L's ability to disuose Such of Low-Level radwaste.A A violation by the Conrany could affect the ability of any of its plants to ship LLW to a given site.

LLW sites have cut off entire compan$es from access, due to violations.

Apolicants should provide the docunents requested in (b). Since they answer (c) Yes also$ tb$fr s ould provide docunents asked for in (d) .

With this infornation, I can then pursue admissible evidence as to CP&L waste (LLW) shipnent practices and LLW housekeening that can affect their ability to use LLW disposal facilities.

A violation of (1) shipning or packing regulat$ ons, or ,'

(2) a violation related to incroperly disnosing of certain .

items as LLR when they are not, can clearly cut off site access for a utility. Look at the TMI "LLW" rejection at Hanford WA (by Governor of Washington State), anplied to GPU generally; PG&E, I think it was, lost access to Beatty NV for a leak; I think the sane may have happened to Con. Ed. of Illinois, for an incroner shipment.

• Additional connent re distinction of Aprlicants' cases from ny G-8 and G-9: If Applicants are relying on something they haven't told ne about, I should be able to Eet access to tne fact they rely on (re a contention ) without having to (effectively) guess exactly or almost exactly what that fact is.

The facts they have relied on (asked by G-8) are surely relevant if they differ fron present positions of Applicants. What they now rely on (G-9)(as delinited pp 1-2 above) is also relevant.

As noted above, broadness, burdensoneness and relevancy object 6cns won 't fly under Anplicants ' own cases. It is unreasonable to ask me to exactly hit a hidden needle in their haystack of information; it is not unreasonable to ask then to identify the needles (what they have or do rely on) in that haystack of available facts.

CONCLUSION j

For the reasons stated above, I respectfully renuest the Board to compel Apnlicants to provide supnlenentation of answers as nego-i tiated, and to further answer as to the natters discussed above, insofar as compelling such resconses is reasonable and proper.

l I apologi::e for any legal errors herein, as I an not e and can't handle these notions based on exnerience.

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