ML20128D376

Memorandum & Order (Ruling on Applicant Motion to Compel Discovery).* Intervenor Compelled to Answer Listed Interrogatories.Licensee Motion to Compel Otherwise Denied. W/Certificate of Svc.Served on 930202

ML20128D376
Person / Time
Site:	Claiborne
Issue date:	02/02/1993
From:	Cole R, Margulies M, Shon F Atomic Safety and Licensing Board Panel
To:	CITIZENS AGAINST NUCLEAR TRASH, LOUISIANA ENERGY SERVICES
References
CON-#193-13594 92-641-02-ML, 92-641-2-ML, LBP-93-03, LBP-93-3, ML, NUDOCS 9302100127
Download: ML20128D376 (15)

Text

_ _ _ _ _ _ _ _ _ _ _ - _ _-____- - _

/isW 00ChETED

[dN93-3 UNITED STATES OF AMERICA '93 FU) -2 P 2 :29 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD ~

Before Administrative Judges:

Morton B. Margulics, Chairman Richard F. Cole Frederick J. Shon SERVED FEB - 2 E3 In the Matter of Docket No. 70-3070-ML LOUISIANA ENERGY ASLBP No. 91-641-02-ML SERVICES, L.P. (Special Nuclear Material License)

(Claiborne Enrichment Center)

February 2, 1993 MEMORANDUM AND CRDER (Ruling on Applicant's Motion To Comoel Discovery)

We have before us for decision a motion filed by Applicant Louisiana Energy Services, L. P. (LES), dated December 24, 1992, for an order to compel Intervonor Citizens Against Nuclear Trash (CANT) to answer specified questions in " Applicant's Interrogatories to Citizens Against Nuclear Trash's Contentions B, I, J, K, L, M, and Q," dated August 11, 1992.

CANT had responded to the interrogatories in an answer dated December 2, 1992. LES considers CANT's answers to certain questions pertaining to the contentions, except for L and M, to be inadequate because of CANT's claim that its analysis is incomplete, that CANT is awaiting NRC analysis,.

that the information sought is protected by the attorney 9302100127 930202 0 ']/-

, DR ADOCK 0700 i

l work product rule, or the answer is incomplete and evasive, i CANT takes issue with the objections to its responses ann requests that the Licensing Board deny Applicant's motian to compel, i

Discussion i

A. IncomDlete Analysis 1

! (1) Applicant finds objectionable CANT's responses to l l

interrogatories B.1-2, B.1-2.1, B.1-2,2, D 4-2, B.4-3, 0.4-4, B.4-6. B.5-1, J.4-1, J.4-2.a, J.4-2.c, J.4-2.d,.J.4-2.f, J.6-1.b, J.9-3, J.9-4.a, J.9-4.b, K-2.a, and Q-2 that it could not, at this time, respond to the interrogatories t

because the persons who may be testifying with respect to these questions have not yet completed their analysis of the l encompassed issues.

( Applicant contends the foregoing-is not a sufficient l

l ground to support an objection to discovery. _It-asserts that the Commission's rules contemplate that parties' positions may not be complete during discovery.and may evolve during a licensing proceeding. It1 cites-10.C.F.R.

S 2.740(e), which requires the supplementation of discovery responses under certain circumstances,-as acknowledgment of the evolutionary process that requires. parties to supplement their answers if the information is no longer' correct. LES also cites Cleveland Electric Illuminatino Company (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-67, 16 NRC 734, 9

0 t

736 (1982), in which the Licensing Board stated that

"(s]hould applicant develop new, relevant evidence, it would be under a continuing obligation to update its answer."

Applicant contends that an analysis not yet completed is not grounds to withhold information from discovery.

(2) CANT does not dispute that discovery is an evolutionary process that requires parties to supplement their answers as additional information becomes available.

It states that at present CANT has not yet received an analysis from its potential witnesses regarding_many ot the contentions and that CANT does not yet have within its knowledge the information which LES seeks in some of its interrogatories. Intervenor asserts that it will respond to the interrogatories as soon as it has received and developed sufficient data to form a preliminary response. It will then supplement its answers as the analysis of the issues is further refined.

CANT notes that the discovery deadline-for technical issues is not until September 3, 1993,-and for environmental issues, July 11, 1994.- Intervenor_ points out LES hts responded to several of its discovery requests with the statement that Applicant has not selected witnesses:to testify nor has the substance of their testimony _and affidavits been identified.

(3) The Licensing Board finds that the granting of the motion to compel, where CANT acknowledges its responsibility i

l l

4

-4 -

to respond but looks for_ time to comply, would be inappropriate at this time.

CANT does not dispute the need to respond to the interrogatories. It raises the question of when,-a matter c

not addressed by LES. We recognize that some time may be required to respond to the new matters raised in the interrogatories. That occurs where Applicant had amended its application or provided additional information and bases its interrogatories on that material.

We do not see the need for the sama amount of time to respond to interrogatories B.5-1, J.4-2.c, J.4-2.f, J.9-4.a, ~

and J.9-4.b, where they seek information regarding the contentions as filed by CANT. CANT had to perform a preliminary analysis to formulate its contentions and should be in a position to respond to those interrogatories in a-quicker fashion than for those based on additional submittals.

The proceeding should move forward in a timely manner.

The parties will be given an: opportunity to establish a schedule for responding to the: interrogatories. Should they be unable to establish a-schedule, we will set one after considering their positions on the matter.

D. Awaitina NRC Analysis (1) Applicant requests that the Licensing Board order Intervenor to answer interrogatories I.1-b through I.11-b that relate to Contention I which alleges that the LES

-S-application is incomplete in eleven specified areas. LES asserts that Intervenor bas 9d its contention on an NRC Staff letter that requested additional information. Applicant states that it provided the requested information to Staff 4

and Intervenors, and it has updated the application. It claims it is entitled to know why CANT now considers'the license application to be incomplete. Proper responses would permit it to prepare for the hearing and to begin procedure and design development based on commitments in the application. Applicant asserts that CANT's response to the interrogatories that it " continues to evaluate this aspect of contention I, and is also waiting for the NRC Staff's evaluation" is inadequate.

LES claims that it appears that CANT is waiting for Staff to define issues and is trying to avoid the late filed contention standard in 10 C.F.R. S . 2. 714 ( a ) ( 1) -, It also views CANT's action as an attempt to use Staff studies as a sort of pre-complaint discovery tool. LES also objects'to the response that-CANT is continuing to evaluate the subject matter of the interrogatories on the grounds that'a claim of continuing evaluation is not sufficient for withholding information from discovery, a matter it objected to under A (1) above.

(2) CANT disagrees with LES's interpretation of its response. Intervenor states it was merely indicating that it had no formulated analysis yet to offer, and that as part l

l

.. _ _ _ _ - _ - - - _ _ _ - _ - _ _ _ - - _ _ _ - _ _ _ _ - _ _ _ - - - a

of the evolutionary discovery process, ultimately CANT may be factoring in details which surface in Staff reports as part of CANT's analysis. CANT denies that it is waiting for the Staff to define the-issues or that it was attempting to employ Staff studies as a sort of pre-complaint discovery.

l It points to the fact that it has eight admitted contentions as disproving the allegations.

(3) The Board finds that the Licensing Board need not compel CANT to respond to the specified intcirrogatories at ,)

this time. CANT recognizes its obligation to respond to the interrogatories independent of when Staff completes its studies. As with A.(1) above, it becomes.a matter of-when a timely response is due. That should be worked out in the same manner as the preceding dispute.

C. Attorney Work Product (1) Applicant objects to CANT's refusal to answer interrogatories 3.5-1, J.4-2.c, J.4-2.d, J.4-2.f, J.6-1.b, J.9-3, J.9-4.a, J.9-4.b, K-2.a and Q-2 on the grounds that Applicant seeks to discover the legal theories of CANT's

~

attorneys. LES states the interrogatories seek a fact or citation to a regulation or regulatory guidance and not the attorney's legal theories.

LES relies on the requirements of 10 C.F.R.

S 2.714 (a) (2) and (b) (2) (ii) , which require that contentions be supported by-facts or expert opinion on which a petitioner intends to rely, together witn references to

1

-7 -

specific sources on which petitioner intends to rely to establish those facts or expert opinions. Applicant contends that tbn interrogatories asking for facts and citations to specific regulations and regulatory guidarco are proper and should be responded to.

For each of the specified interrogatories, Applicant points out that its inquiries extended to the facts and citations CANT relies on to support the contentions.

, (2) CANT defends i"s refusal to respond to the interrogatories on the grounds that Applicant seeks the

mental impressions of the party's attorneys which is protected by the attorney work product rule. It relies on Hickman v. Tavlor, 329 U. S. 495, 511 (1947) for the proposition that "(pjroper preparation of a client's case

demands that (the lawyer) assemble information, sift what he considers to be relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference."

CANT uses interrogatory J.4-2.f as an example of LES clearly asking CANT to reveal mental impressions of its

attorneys when it asks for the " analysis" CANT's attorneys used to reach the legal conclusion tr.at the costs of the project outweigh the benefits. CANT claims this is a pattern repeated throughout the interrogatories.

LES asked CANT the following in J.4 '.f:

A

l 1

i In contention J you state that "(ojn the wholo,

, the costs of the project far outweigh the benefits j of the proposed action." What bases, facts and

annivsis were used to reach this conclusion?

(Emphasis added)

Intervonor considers an inapposite to discovery Applicant's reliance on Commission requirements that

! contentions be supported by cortain facts and references to 1

l specific rules and regulations to have contentions admitted in the first instanco.

l (3) The Licensing Board finds that the motion to j compel, insofar as CANT refuses to respond to the l interrogatorios on the groundo of protection under the 1

attornoy work product rule, should be granted.

The attorney work product rule is contained in

, 10 C.F.R. S 2.740(b) (2) and providos as follows:

1 (2) Trial nrocaration mat.gtialg. A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (b) (1) of this section and prepared in anticipation of or for the hearing by or for another party's representative _(including his attorney, consultant, nuroty, indemnitor, insuror, or agent) only upon a showing-that the party seeking discovery has substantial nood of the materials in the preparation of this case and that he le_ unable without undue hardship.to obtain:the substantial equivalent of the materials by other.means. In ordering discovery of such materials when the required showing has been made, the presiding officer shall protect against disclostare of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding.

The rulu was adopted from Rulo 26(b) (3) of the Federal Rules of Civil procedure. Where an NRC rule of practice is

+ - ...,w- -:-r e m, -

l based on a Federal Rule of Civil Proceduro, judicial 4

interpretations of that federal rulo can servo os guidance for the interpretation of the analogous rule. Public Service comoany of New Hamoshire, et al. (Soabrook Station, i

Units 1 and 2), LDP-03-17, 17 NRC 490, 494-95 (1983). Egg also Lena Island Lichtina Comoany (Sh r*+am Duclear Power

{ Station, Unit 1), LDP-82-82, 16 URC 1144, 1159-62 (1982).

The purpose of the rule has been described as to protect "(sjubject matter that relatos to the preparation, stratogy, and appraisal of the strengths and weaknossos of an action, or to the activition of the attorneys involved,

" 4 Moore's rather than to the undorlying evidence .. . .

Federal Practico (2d ed. 1991), 1 26.64(1) at 26-349.

t Where a party asserts a privilogo in objecting to a discovery request the burdon is upon the objecting party to establish the existance of the privilogo. A more assortion t

l by the intervenor that the material withhold constitutes l attorney work product is insufficient to moot that burdon.

Public Service at 495.

That is the case we have at hand. CANT moroly-i proclaims that movant socks papers which bear on the thoory of the case and litigation strategy, but its allegation romains unsubstantiated.

It is proper to inquire-into the foundation of an intervenor's own contention. In Public Service at 493-94, 1

where the inquiry requested any " study, calculation or l

1 s *

l. .

i-i i

analysis" on which an answer to a specific inquiry was l

I based,-the Licensing Board stated, "(ijnterrogato*ies which inquirs into the basis of a contention serve the dual 1 ~l purposes of narrowing the issues and preventing surprise at

) '

1

trial." The Licensing-Board went on to find that the -l h

intervencr had failed to meet its burden of showing that the )

l material it sought to withhold was protected under 10 C.F.R.  ;

i l - 5 2.740(b) (2) .

! In Kerr-McGee chemical Cornoration (West Chicago Raro l Eartha Facility) , - LDP-86-4, 23 NP.C-75,'82 (1986), tho l

i Licensing Board stated:

! i l However,:a review of the. interrogatories in

! question reveals that the: majority of themiask for j information which is basic to an-understanding'of 1 the People's position in.the proceeding.. We agree l with the proposition-put forward by counsel for

, Kerr-McGee.at the-September 11--prehearing-i conference (see Tr. 324-28) that, having raised l

these important issues, the People have an-j obligation to participato meaningfully in.their i resolution.

l CANT hasinot shownLthat the interrogatories'do~not seek .

~

[ the underlying evidencefand law that form the foundation for ,

the contentions but rather the "menta'lfimpressions, i.

conclusions, opinions or11egalLtheories of-an attorney or ,

l other representative of a party concerning the proceeding."

[

The support for CANT's claim that thesten

interrogatories: seek attorney work product is the language-l' appearing in only one, J~4-2'.'f,5where'LES" asks "(w) hat L ]!

bases, facts, and analysis _ were :used to reach this, 1

l

(- _ _

+

.a _a a. __:-.,,_ _ . . - , , . - , ..u._ .._c.._...__.;..._.,_,,

_ - _ . . . .- -. . . ._ - - - - _ .- - - -- - - _ . - . - =

1 .

conclusion?"  ? ANT stated "LES is clearly asking CANT to reveal mental impressions of its attorneys when it asks for l the "analysos" CANT's attorneys used to reach the legal 1 conclusion that the costs of the project outweigh the bonofits.

Intervenor would have us believe the more request for an analysis means Applicant is cooking attorney work 4

product. It providos no basis to equato the request for an analysis with a roquest for attorney work product and thorofore we find CANT's position to be without merit. The same conclusion is reached for the other nino i

intorrogatorios where no " analysis" was sought. The rolovant portion of the motion to compel shall be granted.

CANT, as part of its response to the ton interrogatories, also based its failure to respond on the i

grounds that it did not yet have an analysis-in hand to offer to LES. This again is not a refusal to respond but

{ involves the issue of when a responso shall bo mado. There is no nood for an order at this time to compel CANT to respond as to this aspect. This matter will be handled as part of the need,for scheduling responses.

D. Incomplete And Evasive Answer (1)- Applicant objects to CANT's response to interrogatory J.3-2 as constituting an incomplete and evasive answer. In answering _the intorrogatory, CANT stated 4

-Yo*

1 1

l LES should see the answer to interrogatory J.3-1. That answer was not responsive to J.3-2.

(2) Intervenor state, the referenco it made to the answer to interrogatory J.3-1 was a typographical error.

CANT intended to refer back to a responso which invoked the attorney work product rulo, and also noted that CA!1T did not yet have a formulated analysis to respond to the intorrogatory.

(3) The Licensing Doard grants the motion to compel a response to interrogatory J.3-2 for tho same reasons and to the same extent as was dono under C.(3) above.

ORDER Based upon all of the forogoing, it is hereby ordered that:

1. CANT is compollod to answer interrogatories D.5-1,

.J.3-1, J.4-2.c, J 4-2.d, J.4-2.f, J.6-1.b, J.9-3, J.9-4.a, J.9-4.b, K-2.a and Q-2;

2. The motion to compel is othorwiso denied;

3. All interrogatorios which are the subject of the motion shall be answered by CANT in accordance with a schedule to be further ordered by the Licensing: Board;

4. LES and CANT shall confer regarding.the establishment of a schedule;

5. Should they not be successful in establishing a schedule mutually agreed upon, they shall separately notify

13 -

1 a L;co 91ng Board in writing of their proforred

.ciaduling, with their reasons, by the close of business February 17, 1993.

6. Parties may file responses to the othorc' filings within savon days thoroafter.

T!!E ATOMIC SAFETY A!!D LICE!1SIllG DOARD

/ W wo l%t o Morton B. Margulies, phairmar Cl!IEF ADMIllISTRATIVE LAW JUDGE

, 'dw Ricnard F. Colo ADMI!IISTRATIVE JUDGE C v Fro orick Jd. Shon ADMIllISTRATIVE JUDGE J

Bethesda, Maryland February 2, 1993

UNITED STATES 0F AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of LOUISlANA ENERGY SERVICES, L.P. Docket No.(s) 70-3070-ML (Claiborne Enrichment Center SNM License)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing HEMO & ORD MOT TO COMPEL DISC have been served upon the following persons by U.S. mail, first class, except as otherwise noted and ir, accordance with the requirements of 10 CFR Sec. 2.712.

Office of Commission Appellate Administrative Judge Adjudication Morton B. Marguilies Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge Richard F. Cole Frederick J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Sherwin E. Turk, Esq. Diane Curran, Esquire Office of the General Counsel Harmon, Curri,n & Tousley U.S. NJclear Regulatory Commission 2001 S Street, N.W., Suite 430 Washington, DC 20555 Washington, DC 20009 Peter G. LeRoy W. H. Arnold Licensing Manager President LES - c/o Duke Engineering and Lousiana Energy Services, L.P. Services, Inc.

600 New Hampshire Ave., N.W. PO Box 1004 Washington, DC 20037 Charlotte, NC 28201 Ronald Wascom J. Michael McGarry, Ill, Esq. Deputy Assistant Secretary Counsel for LES Office of Air Quality & Rad. Protection Winston & Strawn Dept. of Environmental Quality 1400 L Street, NW. P.O. Box 82135 Washington, DC, 20005 Baton Rouge, LA 70884

l

' l l

l i 1 DocketNo.(s)70-3070-ML l

HEMO & ORD M0T TO COMPEL DISC i

< Dated at Rockville, Md. this '

f:,

2 day of February 1993 j

g e .

Office of the Secretary of the Commission q

i i

t i

k j' f

f 3

l -

4

. - , - . . . ,