ML20132A465

Response to Intervenor Motion to Compel Discovery from Applicant & NRC Staff.Motion Opposed Due to Intervenor Failure to Meet Burden Per NRC Regulations.Certificate of Svc Encl.Related Correspondence

ML20132A465
Person / Time
Site:	Braidwood
Issue date:	09/23/1985
From:	Chan E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#385-586 OL, NUDOCS 8509250349
Download: ML20132A465 (12)

Text

(SM ausum cc.wmuom o September 23, 1985 ED ,

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION *d3 ggp BEFORE THE ATOMIC SAFETY AND LICENSING BOARD All :23 Ch 1lTr$, YCh n -

In the Matter of ) -

)

COMMONWEALTH EDIS0N COMPANY ) Docket Nos. 50-4564

}i 50-4570L (Braidwood Station, Units I and 2 NRC STAFF RESPONSE TO INTERVENORS' MOTION TO COMPEL DISCOVERY FROM APPLICANT AND THE NRC STAFF I. INTRODUCTION On September 4,1985, Intervenors Bridget Little Rorem, et al.

("Intervenors") filed a motion to compel answers to certain i

interrogatories from Applicant and Staff. In their motion Intervenors sought responses to Interrogatories 17, 20 and 57. Pursuant to 10 C.F.R. 5 2.730(c), the NRC Staff hereby opposes that portion of "Intervenors' Motion to Compel Discovery From Applicant and the NRC Staff" (" Motion")

which applies to the Staff on the grounds that Intervenors have failed to meet their burden under NRC Regulations. Intervenors failed to demonstrate that (1) the information sought appears reasonably calculated to lead to discovery of admissible evidence or (2) it is relevant to the issues before this Board, or (3) the answers are necessary to a proper decision in the proceeding and (4) are not reasonably obtainable from any other. source. 10 C.F.R. 6 2.720(h) . (2)(ii). In addition to its opposition to Intervenors' Motion, the Staff requ'ests that the Board l

l 8509250349 B50923 PDR ADOCK 05000456 Q PDR T)S 07 - ..

. issue the protective order requested in Staff's July 30, 1985 " Motion for a Protective Order."

II. BACKGROUND On July 2, 1985, Intervenors served "Rorem, et al. Quality Assurance Interrogatories and Requests to Produce, First Set" [QA Interrogatories]

on Applicant Commorwealth Edison Company and the NRC Staff. On the same date Rorem filed "Intervenors' Motion to Require NRC Staff Answers to I

-Interrogatories" [ July Motion]. On July 30, 1985, the NRC Staff filed its objections to certain QA Interrogatories and the July Motion as well as a Motion for a Protective Order concerning each interrogatory to which it had objected. "NRC Staff Objections To Interrogatories And Motion For A Protective Order". [hereinafterObjections]. In its response the Staff stated that, in order to expedite this proceeding, the Staff would attempt to answer certain interrogatories. However, the Staff specifically stated that it did not waive the right to object to any interrogatories it believed merited objection. (Objections at 3).

The Staff has provided responses to those QA Interrogatories to which it did not object. As stated in the Staff's September 3, 1985 status report, based on an August 14, 1985 meeting with Intervenor and Applicant to resolve discovery disputes, the Staff voluntarily agreed to supplement some of its earlier responses and provide responses to several

'1terrogatories to which it had originally objected.

On September 4, 1985, Porem, filed "Intervenors' Motion to Compel Discovery from Applicant and the NRC Staff" seeking a Board order to compel responses to Interrogatories 17, 20 and 57 by the NRC Staff and 1

l t

responses to numerous interrogatories from the Applicant. For the reasons set forth below, the Staff opposes this Motion insofar as it relates to the Staff.

III. DISCUSSION A. Standards for Discovery Against the Staff In general,10 C.F.R. 5 2.740(b)(1) limits discovery to "those matters in controversy which have been identified by . . . the presiding officer in the prehearing order. . . ." The regulations further require that "the information sought appear reasonably calculated to lead to the discovery of admissible evidence." 10 C.F.R. I 2.740(b)(1).

Where the Staff is concerned, " discovery against the Staff is on a 4

different footing" than discovery against other parties. Pennsylvania Power and Light Co., et al. (Susquehanna Steam Electric Station), ALAB-613, 12 NRC 317, 323 (1980). Most Staff records and documents relevant to

, licensing proceedings are by regulation made available for inspection and copying in the NRC.Public Document Room. 10 C.F.R. G 2.790(a).

TheAppealBoardinSusquehannacitingCommissionpolicyandprocedure1/

observed that "[t]he contemplation is that these 'should reasonably i

disclose the basis for the staff's position' thereby reducing any need i

1/ 10 C.F.R. Part 2, Appendix A.IV.(d) states in pertinent part:

In general, staff documents that are relevant to a proceeding will be publicly available as a matter of course unless there is a compelling justifica-tion for their nondisclosure.

t

for formal discovery." Susquehanna, ALAB-613 supra at 313. In further-ance of this policy Commission regulations governing discovery against the Staff require a "findino by the presiding officer that answers to the

' interrogatories'are necessary to a proper decision in the proceeding and that answers to the interrogatories are not reasonably obtainable from any other source" before the Staff is required to answer written inter-rogatories. 10 C.F.R. I 2.720(h)(2)(ii).

Commission regulations require that motions to compel discovery must set forth (1) the nature of the questions or the request, (2) the response or objection of the party upon whom the request was served and (3) arguments in support of the motion. 10 C.F.R. 5 2.740(f)(1). It is i

well established that the moving party has the burden of proving that its

motion should be granted. Consolidated Edison Co. (Indian Point Station, Units 1, 2 and 3), CLI-77-2, 5 NRC 13, 14 (1977).

B. NRC Staff Objection to Specific Interrogatory 20 and Lack of Argument by Intervenors are Sufficient to Justify Denial of Intervenors' Motion and Issuance of a Protective Order In its July 30, 1985 Objection, the Staff objected to answering Interrogatory 20 2/ stating that "this information is directly known to 2/ Interrogatory 20 reads:

Please identify in detail all documents, including correspondence, reports, minutes of meetings or notes of oral conversations, reflecting disagree-i ments, disputes or differences of opinion between j Quality Control Inspectors and their supervisors or (FOOTNOTE CONTINUED ON NEXT PAGE) 1

l . .

t

Applicant, who is therefore the appropriate source for the requested i information." (Objectionat8). The Staff reasoned that "the l

information sought pertains to Applicant's organizations and activities."

(Objectionat3). "Therefore, the information requested should be readily known to Applicant." M. "[T]he infonnation sought is reasonably available from sources other than the Staff, namely the Applicant or publicly available NRC inspection reports . . . and the t

Staff objects to [it] on that basis." M.

I In the introductory portion of their Motion, Intervenors assert that  !

l the Staff's objection to Interrogatory 20 is " invalid." Motion at 3.

~

Intervenars' Motion does not set forth the nature of the interrogatory as required by 10 C.F.R. 6 2.740(f)(1). Not a single supporting argument is presented by Intervenors in support of their position. The basis for Intervenors' belief that the Staff objection is invalid remains unknown to all but the Intervenors. In short Intervenors have failed to demon-strate that the answer to Interrogatory 20 is either "necessary to a proper decision in this proceeding" and that the information is "not reasonably obtainable from any other source." 10 C.F.R. 52.720(h)(2)(ii).

1 l

i i

^

(FOOTNOTE CONTINUED FROM PREVICUS PAGE)

Commonwealth Edison or its contractors' management.

Include the subject, date, names of persons involved and resolution foe each instance so -

l reflected.

l u

(

-. -. . - _ - - . , ~ - . . _ _ , - . - _. .

Thus, Intervenors, the moving party, have not met their burden of proof and the motion to compel discovery of Interrogatory 20 should be denied and a protective order entered.

C. NRC Staff Objections to Specific Interrogatories 17 and 57 are Sufficient to Overcome Intervenors' Assertions that the Interrogatories Raise Mixed Questions of Fact and Law and that the Responses Would Focus the Issues in the Case

1. I_nterrogatory 17 The Staff objected to answering Interrogatory 17 I stating ~that it was not the appropriate source for the requested information. (Objection at 7). The Staff reasoned that Intervenors had not demonstrated that the answer was both necessary to a proper decision in the proceeding and not reasonably cbtainable from any other :,ource. (Objection at 2).

Intervenors contend that Interrogatory 17 raises questions of the

" application of law to fact," (Motion at 6) and as such -- quoting the Advisory Committee Note to Rule 33(b) of the Federal Rules of Civil Pro-cedure - "can be most useful in narrowing and sharpening the issues..."

(Motion at 6). Intervenors' quote from the Advisory Comittee goes on to say that " interrogatories may not extend to issues of ' pure law,' i.e.,

legal issues unrelated to the facts of the case." I d_.

The Staff contends that Interrogatory 17 does not relate to any questions of fact which are ripe for discovery. Indeed, Interrogatory 17 3/ Interrogatory 17 reads:

Please describe in detail tne circumstances and procedures, if any, under which Quality Control inspection criteria may be waived.

i is so broad and ambiguous that the Staff is unable to determine what exactly is being asked. In the Staff's view the interrogatory does not even mention Braidwood. Any response to such a vague interrogatory cannot be necessary to a proper decision in this proceeding.

In addition to propounding an incomprehensible interroCatory, 1 1

Intervenors mischaracterize the Staff's objection. Although Intervenors'  !

Motion discusses recent expansion of Rule 33(b) of the Federal Rules of i

Civil Procedure concerning mixed questions of law and fact, Intervenors j l do not attempt to demonstrate that any question of fact concernir.g the i

application of inspection criteria at Braidwood exists. The stringency 1 of the application of the criteria and "the circumstances and procedures .

I for waiver of such criteria (Motion at 5) appear to be pure legal ques- i tions and not questions of fact. Even if Interrogatory 17 were inter-preted to raise an issue of fact, the Intervenors have not demonstrated how the interrogatory narrows and. sharpens the issues.

j Pursuant to the Commission's regulations at 10 C.F.R. 9 2.740(b)(1),

j the party seeking discovery of information which would not be admissible i

j as evidence has the burden of demonstrating that the information sought t

is reasonably calculated to lead to the discovery of admissible evidence.

, See Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 J and2),LBP-82-33,15NRC887,890-91(1982); Illinois Power Company j (Clinton Power Station, Unit 1), LBP-81-61, 15 NRC 1735, 1741 (1981).

i Intervenors failed to demonstrate that any informatirn elicited would be reasonably calculated to lead to discovery of admissible evidence.

Furthermore, Intervenors do not present any argument as to why the 1

l i

. . - - - , . -, .-- . - , -, . - , - - . - - - , - . , - . , . - - _ . - - - . ~ . _ - . _ . , . - - . - , . . - . - - - . .

response is necessary to a proper decision. Intervenors simply assert without any supporting argument that the circumstances under which inspection criteria $/ are waived or applied are " plainly relevant and discoverable subjects."

Even if Interrogatory 17 was sufficiently narrowed and imbued with reasonable specificity and could be reasonably calculated to lead to 1

admissible evidence, Intervenors failed to meet their burden to demon-strate that-the information was not reasonably obtainable from any other I source. Intervenors' arguments are insufficient to overcome the Staff's 1

i objection to Interrogatory 17 and the Motion to compel discovery of

! Interrogatory 17 should be denied and a protective order entered.

i I i

l 2. Interrogatory 57 ,

The Staff's objection to Interrogatory 57 5/ was grounded on its belief that it was (1) not recessary to a proper decision in this pro-

ceeding, (2) irrelevant, (3) not reasonably calculated to lead to the "

discovery of admissible evidence, and (4) seeking a legal opinion on the ,

-4/ While Intervenors attempt to define the term " inspection criterie" by "like terms" in 10 C.F.R. Part 50, Appendix B an examination of Appendix B, Criterion V and X by the Staff did not clarify this i term.

6

, 5/ Interrogatory 57 reads:

4 In what respects are NRC requirements understood to '

i be either minimum or maximum requirements with

] regard to the design and construction of Braidwood? -

i Please explain in detail and identify any documents which reflect this answer.

9 I

i l

. i scope of NRC requirements without any showing as to the relevance'of such i legal opinion to the admitted contention. (Objection at 12),

i In support cf their Motion, Intervenors once again assert that the l

interrogatory raises a mixed question of fact and law and is thus within l the scope of discovery as embodied in Federal Rule 33(b). Intervenors do not suggest what the question of fact might be nor do they present any

, argun.ent to the effect that the answer is necessary to a proper decision in this proceeding. 10 C.F.R. % 2.720(h)(2)(ii). Once again, the l interrogatory does not even mention the Braidwood Station or any of the factual allegations contained in the quality assurance contention. j Although Intervenors generally contend that " responses to these i

interrogatories will significantly advance the conduct of this proceeding i by focusing and narrowing the issue in dispute", (Motion at 5), ,

Intervenors neglect to provide or discuss the basis for this contention, j Intervenors interpret the question as a request for "information on the respects in which NRC requirements are understood . . . to be either i maximum . . . or minimum requirements . . . a description of the margin of error for deficient workmanship . . . and the relationship between  ;

l

! site imposed acceptance criteria and NRC requirements, where different."

i j Intervenors describe a scenario and claim their entitlement "to probe 4 this anticipated defense through discovery" (Motion at 9) without

discussing how this might be relevant to the issues before the Board or  !

] reasonably calculated to lead to the discovery of admissible evidence.

l 10C.F.R.52.740(b)(1).

1 The Staff believes that Interrogatory 57 calls for a legal opinion I which is in no way related to the admitted contention and is thus rot  ;

1

4 properly a subject of discovery. Even if this was not an issue of pure '

1 j law, Intervenors have not met their burden of proof to demonstrate how i

Interrogatory 57 is related to a matter in controversy or that it narrows 2

- sharpens the issues or how a response would be reasonably calculated i

to lead to discovery of admissible evidence. In short, Intervenors have 4

not met their burden as the moving party to overcome the Staff's objec-

tions. Thus, their Motion should be denied and a protective order

! entered.

i i III. CONCLUSION t

l For the reasons discussed above, Intervenors have not met their burden under the Commission's regulations to overcome the Staff's objec- r i

l tions to Interrogatories 17, 20 and 57. Intervenor's Motion to Compel should be denied in its entirety and Staff's Motion for Protective Order for Interrogatories 17, 20 and 57 should be granted.

Respectfully submitted, 4 .

i Elaine I. Chan Counsel for NRC Staff Dated at Bethesda, Maryland i i

this 23rd day of September,1985

1 I

s I

i i

4

- -- . _ _ . - _ _ - . -- -- _ - _ - _ - - _ _ ~ _ - _ .

UNITED STATES OF AMERICA  !

NUCLEAR REGULATORY COMMISSION 3

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i

In the Matter of )

! )

i COMMONWEALTH EDISON COMPANY Docket Nos. 50-456 50-457 i (Braidwood Station, Units I and 2 CERTIFICATE OF SERVICE i I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENORS' l

MOTION TO COMPEL DISCOVERY FROM APPLICANT AND THE NRC STAFF" in the I above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 23rd day of September,1985:

Herbert Grossman, Esq., Chairman

• Commonwealth Edison Company Administrative Judge ATTN: Cordell Reed Atomic Safety and Licensing Board Assistant Vice President U.S. Nuclear Regulatory Commission P.O. Box 767 Washington, DC 20555 Chicago, IL 60690 Dr. A. Dixon Callihan Region III, ,

Administrative Judge U.S. Nuclear Regulatory Commission 102 Oak Lane Office of Inspection & Enforcement Oak Ridge, TN 37830 799 Roosevelt Road Dr. Richard F. Cole

• Joseph Gallo, Esq.

Administrative Judge Isham, Lincoln & Beale Atomic Safety and Licensing Board Suite 840

U.S. Nuclear Regulatory Commission 1120 Connecticut Avenue, N.W.

Washington, DC 20555 Washington, DC 20036 4

Rebecca J. Lauer, Esq. Lawrence Brenner, Esq., Chairman *

, Istam, Lincoln & Beale Administrative Judge

! Three First National Plaza Atomic Safety and Licensing Board i

. Suite 5200 U.S. Nuclear Regulatory Commissicn l Chicago, IL 60602 Washington, DC 20555 k

f

- ,, ._ % -m , - -.-

_ _ _ , . . <--y, , , - - - , , , , - - - , , - , _ , , . . . . . _ _ < . . , ,

, e i

Ms. Bridget Little Rorem C. Allen. Bock, Esq.

4 117 North Linden Street P.O. Box 342 Essex, IL 60935 Urbana, Il 61801 l Douglass W. Cassel, Jr., Esq. Atomic Safety and Licensing Board

, Timothy Wright, Esq. Panel

• 109 North Dearborn Street U.S. Nuclear Regulatory Commission Suite 1300 Washington, DC 20555 Chicago, IL 60602 Atomic Safety and Licensing Appeal Erie Jcnes, Director Board Panel

• Illinois Emergency Services U.S. Nuclear Regulatory Commission

and Disaster Agency Washington, DC 20555

, 110 East Adams Springfield, IL 62705 Docketing and Service Section*

Office of the Secretary Lorraine Creek U.S. Nuclear Regulatory Commission Route 1, Box 182 Washington, DC 20555 Manteno, IL 60950 i

H. Joseph'F.lynn, Esq.

Associate General Counsel FEMA 500 C Street, S.W., Suite 480 Washington, DC 20740 Elaine I. Chan i Counsel for NRC Staff i

i i

l I

i i

i

, . _ , . , - - - - ~ ,- , ,,..-..,,n , , - , - . , . . - , . , , , , , , , - , - . . p - -..J. , - . .