ML20198K626
| ML20198K626 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 05/30/1986 |
| From: | Gad R ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-377, CON-#286-416 OL, NUDOCS 8606040081 | |
| Download: ML20198K626 (56) | |
Text
l' Filed: May 30, 1986.
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UNITED STATES OF AMERICA E NUCLEAR REGULATORY COMMISSION I' before the ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
) Docket Nos. 50-445,OL TEXAS UTILITIES ELECTRIC ) 50-446-OL COMPANY et al. )
)
(Comanche Peak Steam Electric )
Station, Units 1 and 2) )
)
APPLICANTS' RESPONSE TO CASE'S
" MOTION TO COMPEL PRODUCTION OF DOCUMENTS" Under date of May 15, 1986, CASE has filed a motion to compel. On the subject of the motion, CASE devotes so few words as to make it difficult to fathom the arguments advanced; the reader is told little if anything beyond that, as to one set of interrogatories, CASE believes that the requests were "not adequately answered," while as to a second list CASE believes that the requests were "only partially answered." This k
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brevity makes response a difficult proposition.1 Assuming the Board nevertheless entertains the motion,2 1
2 Consider, for instance, that CASE has made no effort to demonstrate that any of the additional information that it has requested informally is relevant, material to an admitted centention, or otherwise would have been proper discovery if it had been propounded formally. Assuming (without conceding) 1 that a motion to compel lies in respect of informal requests for information, at a minimum the movant should shoulder this burden.
In fact, a motion to compel does not lie in respect of informal requests for information. This follows from the words of the regulation (10 C.F.R. -
2.740(f)) as well as from basic principles: in the absence of a filed interrogatory, dccument production request or notice of deposition, there is no opportunity for the recipient to file an objection or to move for a protective order. In addition, wholly apart from legal principles, the purpose of the informal discovery process is to induce the parties to negotiate and to compromise, which includes the withholding of objections that might otherwise be lodged in the spirit of cooperation. If every failed informal negotiation carried the threat of a motion to compel (bypassing the filed request and filed objection stages), there would be a powerful incentive to eschew informal negotiation altogether.
l 2Not only does CASE's brevity on the merits of I its motion add to the burdens of the Applicants in i
attempting to formulate a response, it adds
< significantly to the burdens of the Board in trying to discern the bases for the motion. For this reason alone, the Board might wish to consider denying the
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the Applicants' answer is set forth herein.a INTRODUCTION CASE filed a set of document requests on September 4, 1985. (The "9/4 Requests.") Responses to motion summarily, for failure of the motion to satisfy the requirements of 10 C.F.R. 6 2.740(f) that a motion to compel "shall set forth the nature of the questions or the request, the response or objection of the party upon whom the request was served, and arguments in support of the motion" or even of 10 C.F.R. $ 2.730(a) that motions "shall state with particularity the grounds and the relief sought." (Emphasis added.)
3 CASE's brevity on the merits of its motion stands in contrast to the effort expended on invective directed to counsel for the Applicants. CASE asserts that counsel are pursuing a " strategy" of " withholding of information and the obfuscation of issues." Motion at 2. Counsel is described as having been " effective at producing an inexhaustible supply of roadblocks to CASE's discovery requests." Id. Finally, CASE attaches a diatribe -- of which we cannot even cite the title without committing an impropriety -- with we presume the implied if not the express assertion of present applicability; in that incorporated diatribe opposing counsel are accused of unethical behavior,
" suppression of evidence," " trashing of documents,"
" subornation of perjury," and " conscious falsification of answers to interrogatories," all happening
" regularly and systematically." It would be a relief to know that by this barrage CASE nevertheless "does not intend to and does not impugn the professional integrity of Applicants [s] or [their] counsel" (Motion at 2) if it were possible to take that assertion as other than black humor.
We respectfully suggest that the Board may want to consider whether invective and ad hominem of this those requests were filed on October 9, 1985.
Applicants' objections to those requests were addressed in a pre-hearing conference on November 12, 1985. At that conference the Applicants volunteered to waive objections to several of the requests; the responses were filed on December 12, 1985, and responsive documents were made available for inspection on that date. The Board entered on order on December 23, 1985, addressing the requests that remained in dispute.
sort is consistent with the Commission's Rules of Practice or with this Board's prior pronouncements on .
the subject. See Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-417, 5 NRC 1442 (1977); Northern Indianna Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-204, 7 AEC 835, 837038 (1974). See also Metropolitan Edison Co. (Three Mile Island Nuclear l
Station, Unit 2), ALAB-474, 7 NRC 746, 748-49 (1978)
(applying the same rule to non-lawyers). Finally see also this Board's Memorandum (CASE Motion to Compel of 8/28/85) (September 17, 1985). If, as we suspect, that consideration will yield a negative conclusion, the Board might want to consider how to prevent a recurrence, particularly given that admonitions seem not to be listened to (and certainly not to be heeded). ;
We cannot claim to be grievously wounded, for the point of such barbs is blunted in part by the repetition that robs the thrust of any dramatic impact and in part by dint of the sagacious exhortation to consider the source. Nonetheless, there is much work to be done in this proceeding and there is simply no valid reason why the burdens of counsel, the parties or the Board should
- be added to with this sort of tactic.
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CASE also filed a set of interrogatories on November 15, 1985. (The "11/15 Interrogatories.")
These were responded to on December 9, 1985. A motian to compel with respect to these responses was filed on i January 10, 1986, and denied on February 4, 1986.4 Beginning with the pre-hearing conference, a number of communications occurred between counsel for the Applicants and representatives of CASE, including l certain communications with the apparent author of the pending motion. These communications either took the form of, or were followed by, writings, specifically:
Billie Garde to R. K. Gad III of 1/6/86; R. K. Gad III to Billie Garde of 1/15/86; Billie Garde to R. K. Gad III of 4/7/86; and R. K. Gad III to Billie Garde of 5/22/86.
For the most part, these communications resulted in the alteration or amendment of or substitution of new or different requests for those contained in the filed discovery documents; copies of the correspondence are attached for the information of the Board.
- That motion did not address any of the requests that are the subject of the pending motion.
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ARGUMENT 9/4 Request 1(c). The original request was thus:
"All notes of conversations or summaries or descriptions of conversations since January 1, 1979 between NRC officials recommending or suggesting any management changes, or any dissatisfaction with specific individuals [']
performance or the attitude of management in general."
This was sort of a nonsensical request, since by definition the Applicants would not have been a party to any of the described conversations. CASE was so informed in the filed response and this was (and is) a complete response to the request as filed.
Informally, CASE later sought to modify the request so as to read as follows:
""All notes of conversations or summaries or descriptions of conversations since January 1, 1979 between NRC officials and Texas Utilities and/or Brown 6 Root officials recommending or suggesting any management changes, or any dissatisfaction with specific individuals [']
performance or the attitude of management in general."
(Added material indicated by emphasis.) CASE 1/6/86 Letter at 2. CASE was informed that the Applicants would " treat the reworded interrogatory . . . as a request for informal discovery and respond to the same." Applicants' Letter of 1/15/86. Sometime i 5
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thereafter, CASE was informed orally that a search had d
revealed that no such documents existed. CASE's representative expressed personal disbelief and, with some prompting, advised that what was in mind was a
, meeting that was thought to have occurred at a specified time among specified people. The Applicants agreed to repoll the specified people with this new information. That has been done and CASE has been notified that no such documents exist. Applicants'
- Letter of 5/22/86.
The original request was fully responded to. The subsequent informal request has been fully responded
- to. There is nothing to compel.
J 9/4 Recuest 1(e). The filed request read as follows:
i "A complete, up-to-date list of the present job of any person who was a witness for Brown & Root or Texas Utilities company in NRC operating license hearings or Department of Labor
! wrongful termination proceedings if, at the time l they testified, were deposed or provided i
affidavits, they worked for any of the Applicants (i.e. owners or contractors) or with subcontractors or consultants at the plant."
This was later clarified to read as follows:
"A complete, up-to-date list of the present job of any Texas Utilities or Brown &
Root employee or the contractor personnel in the i
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1-1 NRC operating license hearings, if, at the time l they testified were de posed, or provided with affidavits, they worked for any of the Applicants (i.e. owners or contractors) or with sub-
, contractors or consultants at the plant."
CASE Letter of 1/6/86. (See ASLB Memorandum and Order of 12/23/85 at 1.) Prescinding from the fact that a request to create a document is not a proper request for the inspection and copying of documents and from i the fact that " contractors" are not " Applicants," such j a list was provided. Some time later it was inspected i and, apparently, found compliant. CASE, however, sought to propound a new undertaking, thus:
- 1 "The list you provided was adequate, l unless.it contains outdated information.
! .Therefore, we request that you provide a list which is current as of 1 April 1986 and update it i bi-monthly, as well as one month before any hearings convene."
j CASE Letter of 4/7/86. The Applicants have undertaken I to update the list (if any updating is warranted based
}
on information available to the Applicants) but not to engage in the process of repeatedly doing so.
f Applicants' letter of 5/22/86.
j Presently, there is nothing before the Board, l since CASE has already received what it asked for. If f CASE wants particular information " updated" in the t
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future, its remedy is to propound an interrogatory (or at least a separate request for informal discovery).
- If the present motion is interpreted as a request to I
create a continuous obligation to supply CASE with information, such is de hors the Rules of Practice and should be denied.
9/4 Request 1(g). The original request was in these terms:
"The job evaluations, performance ratings, letters of recommendation or, if appropriate,
- letters of resignation, and any other documents relevant to all personnel changes identified in Items a and c. Where no such document exists but .
the substance of an evaluation, or the basis for
! a resignation of [ sic} termination (transfer, etc.) was provided in the context of a meeting, provide all minutes or notes of those meetings."
This was initially objected to and ruled upon by the j Board. ASLB Memorandum and Order of 12/13/83 at 1-2.
i j It was never addressed in any of CASE's subsequent letters, and it is therefore news to us that CASE has a j problem.5 I
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5 j Applicants have produced the materials described I in the request regarding personnel changes identified
- in the responses to questions 1(a) and 1(c). These 1
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4 9/4 Request 6(d). As original propounded, the request was in these terms:
"All materials developed by the SAFETEAM about allegations of harassment, intimidation,
, threats or influence from any workers including i allegations classified as regarding undesirable work conditions, safety problems and employee pay issues."
I' This was initially objected to and ruled upon by the Board. ASLB Memorandum and order of 12/23/85 at 3. It was never addressed in any of CASE's subsequent letters. Whatever CASE's problem might be, there is
, nothing ripe before the Board at this time.
Applicants have produced for inspection and copying SAFETEAM documents consistent with the Board's ruling in its December 23, 1985, Memorandum and Order (Discovery). Contrary to what CASE may be asserting, changes relate to key management positions at Texas
! Utilities (in Dallas or at the CPSES site) or Brown &
- . Root (at the site) involving the design or construction of Commanche Peak, i.e., positions down to those reporting to a Vice President on the construction, engineering and design side or to the equivalent of a QA Supervisor on the QA side. Additional documents are
- to be transmitted within a week (documents received i from Brown & Root (Houston) as well as a few additional documents from Texas Utilities).
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the Applicants have never understood the Board's Order to have directed the production of all SAFETEAM documents in the literal sense. Rather, the Applicants have construed the order in the context of the dispute that it was resolving, i.e., as to who should determine whether the substance of allegations received by l SAFETEAM related to harassment and intimidation. See Tr. 234203-04 (11/12/85). The Applicants do not believe that the Board intended sub silentio and sua sconte to have altered the existing limitation on
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harassment and intimidation allegations, i.e.,
incidents involving alleged harassment of QC inspectors and which occurred prior to July 1, 1984. Indeed, at the prehearing canference CASE initially indicated that it de= red literally all SAFETEAM documents, but recognized that such a request could conflict with the craft / July 1, 1984, cut-off rule governing litigation of harassment and intimidation allegations. CASE indicated it would formally move to rescind those limitations if the Board so desired. (Tr. 24,169-70.)
After further discussion, however, CASE volunteered in response to a Board question concerning the craft limitation that it "should" and would "in the near 1
l future" file a written motion regarding " lifting a l number of limitations" on the litigation of harassment and intimidation (Tr. 24,173). CASE never filed that motion. Consequently, the only matter in dispute concerning thic request at the time the Board issued j its Memorandum ano order of 12/23/85 was whether j Applicants or CASE wou2d determine which SAFETEAM
] concerns, from among those satisfying the existing limitations, involved mattera relevant to harassment and intimidation. The Board raled for CASE on this s
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! matter and Applicants have complied with the Board's order.
Further, other Board rulings in the Memorandum and Order support Applicants' reading of the Board's
, intent regardirg the status of the craft / July 1, 1984, i
cut-off. Specifically, the Board declined to alter, j without a motion from CASE, the craft / cut-off rule with respect to another request (request 16) which on its i
i face sought all documents related to harassment and intimidation without regard to the existing limitations. (Memorandum and order of 12/23/85 at 5).
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As already noted, CASE did not file that motion.
Accordingly, Applicants have produced SAFETEAM files 4
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4 containing all allegations of incidents involving QC inspectors (without regard to the nature of the concern) which occurred, or (where no date is provided or discernible) appear likely to have occurred, prior j to July 1, 1984.8 11/15 Interrogatory 1. As propounded, the interrogatory read thus:
' Identify all the mechanisms by which a possible failure to fully comply with an NRC rule, regulation, or procedure or any plant
- procedure (hereinafter collectively identified as
' deficiencies' or ' deficiency') at CPSES could 5 Assuming that the Applicants correctly divines the nature of CASE's difficulty, we add that raising the matter at this time is a tad tardy. CASE knew the precise scope of the SAFETEAM documents that the Applicants intended to produce (and understood the Board to have intended be producod) three months ago.
On February 13, 1986, Mr. Horin sent a letter to Ms.
Garde in which, inter alia, he presented a proposed revision to the protective agreement (since executed by CASE and Applicants) and set forth the scope of the SAFETEAM documents to be produced as the Applicants understood how the matter had been resolved. (A copy of that letter is attached.) CASE posed no objection to that scope until (perhaps) now.
In all events,the SAFETEAM documents that CASE requested copies of are being copied and will be sent to CASE by the end of this week. (CASE might have l learned this if, instead of filing this motion, it had simply called Mr. Horin on the telephone.)
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~ have been identified since June 30, 1984, whether i
part of the CPRT or not. In your answer cite with specificity the written procedures, if any, applicable to each mechanism identified. Also, identify each type of written record made with l respect to each mechanism."
1 This interrogatory was objected to in part and, notwithstanding the objection, answered in these terms:
l "The Applicants are unable to answer this interrogatory in the same breadth in which it is framed i.e., 'all the mechanisms by which a possible failure . . . could have been identified . . . .' With respect to established l systems for such identification, the Applicants submit the following information:"
There then followed a list of precedures being -
employed, following which the answer continued:
I "The procedures regarding CPRT are or will be contained in the CPRT Working files for the ISAPs and DSAPs, which will be produced for
! inspection in accordance with the Applicants' l answer to Interrogatory / Request No A-14 of the set propounded by CASE on 8/27/85. Other
, procedures are available for inspection and .'
copying upon request."
l " Applicants' Answers to CASE's Interrogatories to Applicants (November 15, 1985)" filed on December 9, 1985.
In its letter of January 6, 1986, CASE modified l the request as follows:
" Identify all mechanisms by which a possible failure to fully comply with an NRC rule, regulations, or procedure or any plant
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,s procedure (hereinafter collectively identified as
' deficienciesor ' deficiency') at CPSES could have been or was identified since June 30, 1984, i whether part of the CFRT or not. In your answer cite with' specificity the written procedures, if i any, applicable to each mechanism the contractor or sub-contractor who used the mechanism and the current location of the mechanism or forms. Also identify each type of written record made with respect to each mechanism."
This clarification did nothing to resolve the respect in which the Applicants had found the question i initially unanswerable, and CASE was so informed:
The rewording set forth on page 3 of your letter does not respond to, or cure, the problems i with the eriginal interrogatory insofar as the -
interrogatory referred to 'could have been.'
Insofar as the rewording adds 'or was,' we will
- treat this as an additional request for informal discovery and attempt to respond to it, except that we decline to review all vendor files for possible 10 C.F.R. Part 21 notifications, which, as I understand matters, have never been an issue in this case. Work on searching and preparing a i response apart from CPRT will begin
! forthwith . . . . Insofar as the request refers
! (or might refer) to the efforts of the CFRT, the 1
entire working files for the CPRT will be produced in the manner and at the time set forth in our responses to CASE's 8/27/85 interrogatories."
Applicants' Letter of 1/15/86 at 4. Thereafter, CASE i
was informed that the initial list of precedures would remain unchanged as a result of the modified question, and that the output paper would consist of all NCRs or
- cognate documents written during the period in i -
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question, which CASE was free to inspect upon request.
CASE then requested an estimate of the magnitude of the documents. That information was provided orally and was confirmed in the Applicants' letter of May 22, 1986.
As near as we can tell, the original interrogatory and the subsequent informal requests for I l
information have been responded to fully. As a j consequence, there is nothing to compel.
11/15 Interrogatory 2. The interrogatory, as propounded, reads thus:
" Identify all classes of persons other than full-time employees of TUGCO or Brown and Root who have used any of these mechanisms since June 30, 1984. ' Classes of persons' is intended !
to allow (but not require) this answer to j disregard the name of the particular person but '
is intended to disclose the name of the i organization for which the person worked and the ,
person's or organization's status, i.e., !
independent contractor, consultant, sub- l contractor, etc."
The Applicants answered this interrogatory on December 9, 1985. In its letter of January 6, 1986, CASE propounded a reworded question and noted the following f
objections to the answer that had been provided:
"[T]his question is intended to identify all the individuals, consultants, organizations, sub-contractors who were retained to perform any
evaluations . . ., whether or not they were ultimately hired.
"Further, the answer provided to this question was totally inadequate. CASE does not consider the terms 'certain engineering support' or 'certain quality control inspectors' or 'other support service' to be specific enough."
CASE Letter of 1/6/86 at 4 (emphases added).
CASE was told, in response, that we were unable to see how its rewording had changed anything, and that the additional matters requested would be treated as additional requests and responded to:
"It is not apparent to me where or how the language set forth on page 4 of your letter has ,
changed the substance of the interrogatory.
"With respect to the second paragraph of your discussion on this interrogatory (page 4 of your letter), you are now making a new request; we will treat this as a request for informal discovery and attempt to respond to it. . , .
"With respect to the third paragraph of your discussion of this interrogatory (also page 4), please note that the original interrogatory did not require the specification of function, and we therefore reject any assertion that the response that we filed is insufficiently specific. Nonetheless, I will request that the descriptions of the work being done by the organizations in question be provided in more detail. . . ."
Applicants' Letter of 1/15/86 at 4. CASE apparently accepted that its rewording had added (or cured) nothing, for the total request made in its letter of l
April 7, 1986 is: "Please provide the organization job descriptions promised in your January 15, 1986 letter."
CASE has been informed that we will do so but haven't completed the effort yet. Precisely what is to be compelled eludes us.
11/15 Interrogatory 3. The original interrogatory was thus:
" Describe the procedure (s) that should have been followed during the period June 30, 1984 to the present if a person, other than a full-time employee of TUGCO or Brown and Root, saw a condition at CPSES which they believed may have been a deficiency."
The Applicants answered their inability to respond to this rather uniquely drafted question as framed:
-" The Applicants are unable to answer this interrogatory, with respect to any person other than CPRT and the persons and organizations identified in the answer to Interrogatory No. 2, in the absence of some specification of who the {
supposed person might be. With respect to CPRT )
and such persons, see the response to Interrogatory No. 1."
As was explained to CASE, the problem with this question was that, together with the classes of persons excluded by the terms of the question, the classes of persons previously identified as implementing all of the procedures previously identified constituted the entire set of persons for whom a procedure "should"
have created a duty: CASE had, in effect, asked a question defining a null set. CASE's response shed no light on the problem created by its draftmanship:
" Applicants did not answer this question because it did not initially identify any persons outside of the TUGCO, Brown & Root and the CPRT in response to question 2. Since the class of persons should now be included in a proper response to question 2, please respond to this interrogatory within 15 days.
"As we discussed last Thursday, this interrogatory seeks the procedures (oral or written) by which a person - such as a visitor, an independent contractor, or a consultant to a sub-contractor, or a contractor - retained to develop a bid should be included."
CASE's interpretation of the problem was wrong:
nonetheless, making an effort to make sense out of CASE's letter, the Applicants undertook to provide additional information:
"The suggestion in your letter that the original response to this interrogatory was driven by the fact that 'it did not initially identify any person outside of the TUGOO, Brown &
Root, and the CPRT in response to question 2' is not accurate. Likewise, nothing has convinced me that anything was filed that was other than 'a proper response to question 2' as initially that interrogatory was worded. Therefore, we reject entirely the premises set forth in your letter with respect to this interrogatory.
"Nonetheless, we will undertake to explore whether the additional information set forth in the second paragraph of your discussion of this interrogatory (pages 4-5 of your letter) evokes l
any additional response and, if it does, forward the same in the nature of a response to a request for informal discovery."
Applicants' Letter of 1/15/86 at 5 (emphasis added).
To date, no further response has been evoked. CASE's letter of April 7, 1986, which simply says "Please provide the further clarified information to this request," does nothing to alleviate the confusion.
On this record, the Applicants have no idea what CASE continues to be seeking by way of informal discovery. The Applicants are confident their original ,
answer to the filed interrogatory was sufficient, however, and the motion to compel therefore should be denied.
11/15 Interrogatory 4. Interrogatory No. 4 was, and is, dependent upon Interrogatory No. 3.
11/15 Interrogatory 5. As propounded, this interrogatory read thus:
" Describe in detail how possible deficiencies identified by any mechanism were handled. In particular describe the step by step process from the original identification to final disposition including all steps where discretion or judgment could be used, the criteria for such discretion or judgment, the method by which the exercise of discretion or judgment was documented, the person (s) (or their levels) at which the discretion or judgment was exercised, 4
and any and all written records made from original identification to final disposition."
The original answer was:
"If this interrogatory seeks the procedures by which suspected deviations should be handled, see the response to Interrogatory No.
- 1. If this interrogatory seeks information about how each and every one of the identified suspected deviations has been handled over the course of the construction project, such information is contained in, or could be extracted from an examination, audit or inspection of, the records associated with the procedures identified in response to Interrogatory No. 1 or prior versions thereof, and the burden of deriving or ascertaining such information would be substantially the same for the party serving the interrogatory as for the ,
party served. The Applicants will, upon request, produce such records for the period subsequent to June 30, 1984, at either the offices of Texas Utilities Generating Company, Dallas, Texas, or i,
at Comanche Peak Steam Electric Station, Glen Rose, Texas (depending upon where the records in question are located) at a time mutually convenient to counsel. As to documents from 1
prior to June 30, 1984, the Applicants believe that discovery as to events prior to June 30, 1984 is untimely and therefore object. See objection to Interrogatory No. 1, supra."
In its letter of January 6, 1986, CASE offered this inscrutable comment on this interrogatory:
"To the extent that this answer does not provide for all the information on how possible deficiencies were handled, please update this response with the other responses."
The Applicants replied:
"I do not understand from the statement in your letter what, if anything, is considered inadequate about the response to Interrogatory No. 5 (which we did not discuss orally). Please let me know what your problem is; for the time being (at least), the Applicants will stand on the answers as filed."
Ultimately CASE concluded that the original answer was adequate; it announced an intention to review the entirety of the NCR and cognate paper generated during the entire period of CPSES construction, It inquired about the magnitude of that paper and was told orally that a rough estimate was in ,
excess of 150 4-drawer file cabinets. CASE some time later claimed to have heard a different estimate (though we have been unable to confirm that such is so); in any event, a confirmation of the estimate has since been provided in writing. Applicants' letter of 5/22/86 at 3. There is nothing to compel.
11/15 Interrogatory 7. This interrogatory, as framed, called for the selection of a subset of the persons identified in response to the prior one:
"Of the persons or organizations identified in the answer to question 6, which ones are currently performing any work on one or more of the four identified categories with respect to CPSES?"
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The interrogatory was answered:
"With the exception of Martin Jones, formerly the CPRT Review Team Leader for Electrical, who has resigned (see Transcript of Public Meeting in Granbury, Texas, on November 5, 1985, at 62-63), all of them."
CASE's only objection to this manifestly complete response was one derivative of its non-comprehension of the response to No. 6. CASE Letter of 1/6/86 at 5.
The failure of CASE to articulate a comprehendible objection was communicated to CASE a week later:
"I don't understand what you mean by your assertion that the response to No. 6 was a 'non- -
answer.' The response to No. 6 identified four people or groups of people: Mr. Wells, Mr.
McAfree, Mr. Halstead and the post-6/30/84 retained CPRT contractors. Is what you are looking for a list of the post-6/30/84-retained contractors?"
In its letter of April 7, 1986, CASE requests:
"Please provide a list of the post 6/30/84 - retained CPRT contractors," and CASE has been informed that i
"[t]he list of post-6/30/84 retained CPRT contractors is still being prepared." There is nothing to compel.
11/15 Interrogatory 8. As propounded, this interrogatory was thus:
"of the persons or organizations identified in the answer to question 6 other than those listed in the answer to question 7, which ones are currently doing any work with respect to
= .
CPSES? Briefly describe the work they are doing.
Exclude any individual who is now an employee of Brown and Root or TUGCO but identify approximately how many persons are in this category."
The answer was straightforward: "See answer to Interrogatory No. 6." CASE noted the following objections to this answer:
" Applicants have not answered this question at all. After identification of named individuals or organizations above, respond to this question (i.e. brief job description).
Also, the question asks for the Applicant to identify the number of persons excluded from the answer - that is, the number of Brown & Root and TUGCO employees."
CASE Letter of 1/6/86 at 5. As to the latter point,
- CASE was cor ect; the enumeration was overlooked:
"The response to this interrogatory was truncated; it should have said 'See response to Interrogatories Nos. 2 and 6.' . . . You are correct in noting that the request for a quantification of the number of TUGCO and Brown &
Root personnel who are or have been engaged in implementing any of the procedures identified in response to Interrogatory No. I was overlooked.
I am, however, disinclined to commission someone to do an apparently pointless count of what could prove to be a large number of people unless you can supply some particular relevance. Would you accept an approximation? To what degree of
' precision? At what point in time should the count or approximation be made?"
Applicants' Letter of 1/15/86 at 6-7. CASE's only answer to these questions came three months later in
the April 7, 1986 letter, as follows: "We will accept at this time.an approximation, as of 1 April 1986, of the number of TUGCO, Brown & Root, and other contractor personnel who are or have been engaged in implementing any of the identification of deficiency procedures."
CASE Letter of 4/7/86 at 2. The requested approximation was provided in the May 22, 1986 letter.
Other Relevant Information. We point out to the Board that, since the November, 1985, prehearing conference, the Applicants have provided more than 4,800 pages of materials requested by CASE (for which copying bills in excess of $500.00 remain outstanding and unpaid). In addition, a smaller (and unrecorded) number of pages of copied material have been provided without charge. None of the documents that were stated by the Applicants to be available for inspection and copying upon request, dating back to the time of the prehearing conference (and slightly before) were inspected until after the first of the year; certain documents ordered by the Board to be made available as of December 12, 1985, were not inspected by CASE until March 12, 1986 (exactly three months later); and the materials constituting the Working Files for the first 1
five CPRT Action Plans, which were announced for availability on April 4, 1986, were not inspected until April 21st (the day before the prehearing conference).
The foregoing hardly seems to paint a picture of an intervenor being prevented from moving forward due to the inability to obtain discovery.
The Requested Sanction. At the foot of its motion, CASE requests, in addition to an order compelling discovery, that sanctions be imposed.
Without discussion or explanation, indeed, CASE urges that "the sanction should be production of copies of -
all documents from this point forward without imposing any copying charge on CASE." Motion at 4. In context, this request is frivolous.
First, as the foregoing discussion makes clear, there is no basis for an order compelling discovery.
The failure of CASE to sustain the point that the Applicants have failed to discharge any obligation imposed upon them under the Rules of Practice is fatal to any request for sanctions.
Second, sanctions, to the extent available under NRC practice, lie to enforce compliance with Board orders, not with discovery requests propounded by
l parties; sanctions are not available unless and until an order to compel has first been entered and violated.
10 CFR $ 2.707. See also Rochester Gas & Electric Corp. (R. E. Ginna Nuclear Plant, Unit 1), LBP-83-73, 18 NRC 1231, 1238 (1983) ("No discovery rules have been violated, much less in defiance of a Board order").
Third, it is the burden of one who moves for i
sanctions to at least discuss the applicable standards, including the Commission's Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981), and the cases deciding such questions. See Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-86-4, 23 NRC (February 10, 1986).
CASE has not even attempted any such assessment.
Finally, even in a case (which the present situation does not even remotely approach) in which sanctions would be appropriate, the shifting of I
litigation costs to be incurred in the future is not an open option. The Rules of the Commission require that, in response to any request for the production of documents that CASE has filed or may in the future 4
file, the Applicants need only produce documents for inspection and copying. 10 CFR S 2.741(a)(1), (d).
Pennsylvania Power & Licht Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 331 (1980). This Board has no jurisdiction to alter or amend that rule.
CONCLUSION For all of the foregoing reasons, the motion to compel should be_ denied. There is nothing before the Board in terms of unfulfilled discovery obligations, nor does the record support any assertion of dilatoriness on the part of the Applicants. For the most part the requests for informal information have been of borderline relevance and, on occasion, of borderline comprehendibility. The requested remedy, moreover, is not only un'upported s by any failure on the part of the Applicants, nor even related to any possible past failure; in addition, it is a remedy that 4
i
_ . _ _ ~ _ _ . . . . _ . . . . . _ . _ . _ _ _ .
this Board is without jurisdiction to order. In sum, the pending motion is frivolous.
Respectively submitted, Nicholas S. Reynolds William A. Horin BISHOP, LIBERMAN, COOK PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Suite 700 Washington, DC 20036
. (202) 857-9800 Robert A. Wooldridge WORSHAM, FORSYTHE, SAMPELS &
WOOLDRIDGE 2001 Bryan Tower, Suite 3200 Dallas, TX 75201 -
(214) 979-3000 Roy P. Lessy, Jr.
MORGAN, LEWIS & BOCKIUS 1800 M Street, N.W.
Washington, DC 20036 (202) 872-5000 Thomas G. Dignan, Jr.
R. K. Gad III ROPES & GRAY 225 Franklin Street Boston, MA 02110 (617) 423-6100 By i
- c. CIU R. K. Gad III Dated: May 30, 1986 1
i 1
)
CERTIFICATE OF SERVICE I, Robert K. Gad III one of the attorneys for the Applicants herein, hereby certify that on May 30, 1986, I made sesvice of the within " Applicants' Response to CASE's ' Motion to Compel Production of Documents'" by mailing copies thereof, postage prepaid, to:
Peter B. Bloch, Esquire Mr. James E. Cummins Chairman Resident Inspector Administrative Judge Comanche Peak S.E.S.
Atomic Safety and Licensing c/o U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory P.O. Box 38 Commission Glen Rose, Texas 76043 Washington, D.C. 20555 Dr. Walter H. Jordan Mr. William L. Clements Administrative Judge Docketing & Services Branch 881 W. Outer Drive U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Washington, D.C. 20555 Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Stuart A. Treby, Esquire Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S. Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C. 20555
4 Renea Hicks, Esquire '
Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel P.O. Box 12548,' Capitol Station U.S. Nuclear Regulatory Commission Austin, Texas 78711 Washington, D.C. 20555 Anthony Roisman, Esquire Joseph Gallo, Esquire Executive Director Isham, Lincoln & Beale Trial Lawyers for Public Justice 1120 Connecticut Avenue, N.W.
2000 P Street, N.W., Suite 611 Suite 840 Washington, D.C. 20036 Washington, D.C. 20036 Dr. Kenneth A. McCollom Mr. Lanny A. Sinkin Administrative Judge Christic Institute 1107 West Knapp 1324 North Capitol Street Stillwater, Oklahoma 74075 Washington, D.C. 20002 Ms. Billie Pirner Garde Mr. Robert D. Martin Citizens Clinic Director Regional Administrator, Government Accountability Project Region IV 1901 Que Street, N.W. U.S. Nuclear Regulatory Commission Washington, D.C. 20009 Suite 1000 ,
611 Ryan Plaza Drive Arlington, Texas 76011 Elizabeth B. Johnson Geary S. Mizuno, Esquire Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P.O. Box X, Building 3500 U.S. Nuclear Regulatory Commission 4 Oak Ridge, Tennessee 37830 Washington, D.C. 20555 Nancy Williams Cygna Energy Services, Inc.
101 California Street Suite 1000 San Francisco, California 94111 Co (T3 n)
Robert K. Gad III
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b /I.1% t' g Ropes & GRAY 225 FR AN KLIN STREET BOSTON, MASSACHUSETTS O2110
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itLEComtal '6171423 2377 *a5aihGTON O O 20037 i6if 42 3 ' 8 ai -2 C2, *29 8 60 0 inttamatiON AL Si? 423 6905 iCLCCC*iCR '2C2. 429 iG29 Ms. Billie P. Garde Trial Lawyers for Public Justice 2000 P Street, N.W. 611 Washington, D.C. 20036 Re: Comanche Peak Steam Electric Station Docket Nos. 50-445 & 50-446
Dear Billie:
Thank you for yours of April 7th, in response to .
which please be advised as follows:
Item 1(c) (9/4/85 Set)
I am informed that all of the people to be surveyed on this item have responded that there are no notes or summaries of which they are aware regarding any meetings or discussions between TUGCO and the NRC wherein the subject of key management changes was discussed.
Item 1(e) (9/4/85 Set)
I have requested that the list previously provided be updated, and you will be informed if there is any supplemental information. We decline to commit to continuous updating, however.
Item 1(f) (9/4/85 Set)
Insofar as I am aware, the documents produced in Dallas were the documents set aside for production as set forth in our response to this document request, which was accomplished at or within a few days after the date of the response. As you know, no request to inspect these documents was made by CASE until months thereafter. We are neither obliged to, nor have we '
committed to, continuously monitor documents set aside for production for currency (i.e., to maintain what
Ropcc & GaAY Ms. Billie P. Garde May 22, 1986 amounts to two sets of files), and we are not responsible for any respect in which documents that are set aside and then not reviewed for months may become obsolete in the meantime. In any event, I have requested that copies of any additional CPRT purchase orders or supplements be prepared, with the same redactions as previously, and you may inspect the same upon 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> notice to me at any time after 10 days from the date of this letter.
Item 1(g) (9/4/85 Set)
This item was not the subject of any discussion in either your letter of 1/6/86 or mine of 1/15/86. It does appear to be dealt with in the Board's Order of December 23, 1985, and is, as you are aware, a matter on which Bill Horin has the lead. I therefore suggest that you raise with Bill any respects in which you feel that production under this item has not been as .
required.
Item 1 (11/15/85 Set)
I am informed the that the materials that I described in my letter of March 27, 1986, approximate 8 looseleaf notebooks of about 3" in thickness. These remain available for CASE's inspection and copying; I need about one business day's notice of your intention to arrive at the site for the inspection.
Item 2 (11/15/85 Set)
I have no response to this one yet.
Item 3 (11/15/85 Set)
I have no response to this one yet.
RoPro & GnAv Ms. Billie P. Garde May 22, 1986 Item 4 (11/15/85 Set) 1 Until the work on the prior one is completed, it cannot be determined what response is appropriate for this one.
Item 5 (11/15/85 Set)
As you are aware, the documentation you refer to consists of all of the NRC's and cognate documents written in respect of CPSES construction since the commencement of that construction many years ago. Any estimate of the magnitude of this documents is just an estimate, since no attempt has been made to survey the documentation with precision. I am informed that the best guess of knowledgeable people is that there are approximately 524 4-drawer file cabinets plus approximately 13 4-foot, 3-shelf bookshelves plus ,
approximately 454 LF of other shelves containing the materials in question. I believe that this is consistent with the rough estimates that I provided you earlier.
Please note that in providing this information, we are not agreeing that the entirety of NCR's represents appropriate discovery at this time.
Item 7 (11/15/85 Set)
The list of the post-6/30/84 retained CPRT contractors is still being prepared.
Item 8 (11/15/85 Set)
I am told that there are approximately 8300 people involved in one way or another in the implementation of the procedures in question. This is, of course, an estimate.
e
I J
RoPEG & G AAv Ms. Billie P. Garde May 22, 1986 ,
CPRT ISAP VII.c Checklists ,
l Your request that we "[p] lease provide copies of the checklists in their entirety . . ." is a bit cryptic in view of your recent declination to accept the conditions under which these checklists were offered to you. Upon being advised in writing of your acceptance of the conditions, the checklists will be provided forthwith (subject, in the case of providing copies directly, to there being in place an agreement on copying costs, a matter of which I am not presently
, aware).
Other CPRT Checklists As I previously advised, we had been willing to undertake the effort to accumulate a set of DAP checklists for CASE's inspection, subject to the same -
conditions. Upon being advised of your acceptance of the conditions, we will resume that effort. The timing will be what I set forth in my letter to you of March 27, 1986 (with adjustments for the fact that we ceased the efforts after your declination).
With respect to any other ISAP, please advise for which ISAP you wish in-process production of checklists. As you know, the results reports on many of the TRT-related ISAPs are in the process of being reviewed, approved and published, and, particularly in view of the effort offered in respect of the DAP checklists, I am disinclined to incur the costs of an expedited in-process production of something that will shortly be available in finished form. Upon being advised of which ISAPs you have in mind, I will endeavor to ascertain the expected publication date of the Results Report and make a judgment.
Very t l' k s . _ _
R. K. Gad I RKG/ajp bec: Robert A. Wooldridge, Esq.
Ms. Susan S. Palmer Mr. Terry G. Tyler Mr. John W. Beck
vc U ..
TRML LAWYERS FOR NBUC JUSTICE. P.C.
COUN5tLLOR.5 AT law SUITE 611 2000 P STREET. NORTHWEST WASHINGTON. D C. 20036 (202)463 8600 ANTHONY z nOt5 MAN (ALCUThi DiatCTOR AtTHutsaVANT staff ATTORNEY 94LUE CARDE
- Din 1CTOR. ENVitONMENT AL WHISTLLSLOwtR NtOIECT sAnsAaA rRATT OFFICE MANACUt RATHu1N CUMetRSATCH SECRITARY April 7, 1986 i
R. K. Gad, III Ropes & Gray 225 Franklin Street Boston, MA 02110 Re: Comanche Peak Steam Electric Station Docket Nos. 50-445/446-oL .
Dear Mr. Gad:
This is in response to outstanding issues in your January 15, 198,6 and March 27, 1986 letter and other issues related to recently released documents. Please provide responses promptly.
Request for Document Production (9/4/85)
Request 1(c) - Please provide the results of your renewed search as soon as it is completed.
Request 1(e) - The list you provided was adequate, unless it contains outdated information. Therefore, we request that you provide a list which is current as of 1 April 1986 and update it bi-monthly, as well as one month before any hearings convene.
Request 1(f) - Does your March 27, 1986 mean that the documents were not produced last month in Dallas for your review? If so, why not? Please provide a set of supplemental / superceding purchase orders.
Request 1(g) Describe the process which was followed in deciding which documents were responsive to 1(g). Based on our review, the materials provided could not represent the entirety of those we requested.
_ - . _ _ - ._. . - . - - . . ._. = . _ . -
i.
! Interrogatories (11/15/85)
Interrogatory 1.- For planning purposes please inform us how many l notebooks, of what size, these documents are contained in.
Interrogatory 2 - Please provide the organizational job descriptions promised in your January 1,5, 1986 letter.
- Interrogatory 3 - Please provide the further clarified information to this request.
Interrogatory 4 - Please provide the further clarified information to this request.
Interrogatory 5 - As previously requested, please provide a more complete description of the material available in response to this question. I was told that the deficiency paper filled between 150 (Mr. Gad's information) and 1500 (Mr. Tyler's in formation) four-drawer file cabinets all over the site.
Obviously CASE cannot develop an approach to organizing discovery
' for these documents without some idea of how many file cabinets full of paper is involved. .
Interrogatory 7 - Please provide a list of post 6/30/84 - '
retained CPRT contractors.
Interrogatory 8 - We will accept at this time an approximation, as of 1 April 1966, of the number TUGCo, Brown & Root, and other contractor personnel who are or have been engaged in implementing any of the identification of deficiency procedures.
Other issues i ISAP VIII(c) Checklists: Provide copies of the checklists in their entirety to CASE pursuant to the copying agreement between Mrs. Ellis and Mr. Wooldridge. (Please check with Mrs. Ellis on the details of production and copying. )
All checklists: Provide complete set promptly.
l Please provide copies at this time of all of the discovery documents made available to CASE during our visit to
- TU, except for all the contracting documents provided. These contracting documents will be sought later. Include in the document production those SAFETEAM files that I isolated for 4 copying.
i
TCE-2 R o P ts & G R AY 22S FR ANKLIN STREET BOSTON M ASSACHUS ETTS O2110 ei7 42Fei 0 ,,,,,_ y s c.c. so-s ea **:s * = == s sa.:= e ss
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January 15, 19 8 6 .c,c ; , ,, , , ,,,. g ,
Ms. Sillie Pirner Garde Director, Environmental Whistleblower Project Trial Lawyers for Public Justice, P.C.
2000 ? Street, Northwest, Suite 611 Washington, D.C. 20036 Re: Comanche Peak Steam Electric Station Docket Nos. 50-445-CL & -446-OL
Dear Billie:
In response to your letter of January 6, 1986:
- 1. CPRT-Generated Deviation Pacer. We have earlier, at your request, supplied you with a sample of the NCR's generated by the CPSES project in response to CPRT-generated " deviation paper," together with the
" deviation paper" that generated each MOR. You have requested the same documents for additional NCR's and we will produce them.
Our position is that all documents that we produce on discovery will be produced for CASE's inspection, either in Dallas or Glen Rose (depending on logistics)
(and, in future cases, perhaps at some other place if that is where the documents are kept in the ordinary course of business). With respect to any produced documents, if CASE wants copies we will arrange for the copying (we don't intend to reliquish possession of cr ginal documents) at CASE's expense. :n the case of the sample NCRs described above, you requested to be furnished with copies directly and we c = plied; the bill for the copying has, incidentally, not yet been paid.
The additional documents will be supplied in reasonable increments more or less weekly. You have
Royce & GRAY
- 7. s . 31..:e ? rner Gardo January 15, 1986 requested (at leas: f:r the ::re being) that we g:
ahead and have copies made, at CASE's expense, and we have agreed :: de so. Each package of documents will contain a copying bill, and I expect these to be paid.
You have stated that your agreement to these terms regarding place cf prcduction and burden of ccpying costs is without prejudice to CASE's later assertion that it is entitled : s:mething different. I have no problem with the "without prejudice" part; as I read the rules, it seems fairly clear to me that CASE is not entitled to anything different.
Cur original agreement to provide this informal discovery was based on the three conditions set forth in my letter to ycu dated November 25, 1985, to which on CASE's behalf you agreed. Further like production is on the same cond lens, to which I believe your have again on CASE's behalf agreed. If I am in error about your agreement to the cond::: ens, pleasc advise me promptly. .
(These conditions were: First, that our providing infermal in-process CFRT discovery will not be used to support any attempt at reconsideration, modification or other adjustment of the Licensing Board's ruling on that subject of November 12, 1985; sec:nd, that we are not in a position to keep these documents current, in the even cf any revisions or modifica:: ens; and third, that CASE will engage in no " follow-up" discovery on CFRT documents.)
- 2. Instructions. I do not accept the summary or character: cations you offer of our discussion of the "Instrue:: ens" contained in e:ther of the two sets of discovery. Suffice it to say that we believe that we have in both cases provided what is required by the Rules of Practice, and I think a debate about either the function of putting " Instructions" in a set of interrogatories or whether your " Instructions" are consistent or inconsistent with the Rules of Practice is pointless.
4 l
i
Also, please respond to CASE's March 21st letter raising other questions with regard to discovery.
Sincerely, Billie Garde cc: Juanita Ellis 4
Ropco & GaAv Ms. Sill:e ? rner Gardo January 15, 1986 response will be available by January 21st. Insofar as the request refers (or might refer) to the efforts of the CPRT, the entire working files for the CPRT will be produced in the manner and at thq time set forth in our responses to CASE's 8/27/85 interrogatories.
With respect to the last paragraph of your discussion regarding this interrogatory (page 4) of your letter, please note that the request as phrased calls for an answer (namely an " identification"), not the production of documents. I suggest that you might wish to call for the production of documents after you see the response, except that you should feel free to request the production of any of the documents identified in the answer on file to this intarrogatory (as supplemented) whenever you wish.
- 8. Interrocatory No. 2 (11/15/85 Set). It is not apparent to me where or how the language set forth on page 4 of your letter has changed the substance of the interrogatory. .
With respect to the second paragraph of your discussion on this interrogatory (page 4 of your letter), you are now making a new request; we will treat this as a request for informal discovery and attempt to respond to it. I do not kr.ow whether the response will be available by January 21st.
With respect to the third paragraph af your discussion of this interrogatory (also age 4), please note that the original interrogatory d : not require the specification of function, and we therefore reject any assertion that the response that we filed is insufficiently specific. Nonetheless, I will request that the descriptions of the work begin done by the organizations in question be provided in more detail.
I expect that this information can be provided by January 21st.
- 9. Interrocatory No. 3 (11/15/85 Set). The suggestion in your letter that the original response to this interrogatory was driven by the fact that "it did
Ronco & GRAv Ms. 3:llie ?:rner Garde January 15, 1986 not initially identify any persons outside of the TUCCO, Brown & Root, and the CPRT in response to question 2" is not accurate. Likewise, nothing has convinced me that anything was filed that was other than "a proper response to question 2" as initially that interrogatory was worded. Therefore, we reject entirely the premises set forth in your letter with respect to this interrogatory.
Nonetheless, we will undertake to explore whether the additional information set forth in the second paragraph of your discussion of this interrogatory (pages 4-5 of your letter) evokes any additional response and, if it does, forward the same in the nature of a response to a request for informal discovery. I do not know whether this response can be made by January 21st.
- 10. Interrogatorv No. 4 (11/15/85) Set. In the event that, in the process of recanvassing on the ,
request for additional information relative to interrogatory No. 3 Identifies any such contractors or potential contractors, and if any such persons were supposed t,o have followed any specfic procedures for reporting of potential deviations to the Applicants, and if the Applicants have information to the effect that any of those specific procedures were not followed (all during the period subsequent to June 30, 1984), we will provide that information to you in the nature of a response to a request for informal discovery. The timing of this response will depend upon the results of that recanvassing.
- 11. Interrogatory No. 5 (11/15/85 Set). I do not understand from the statement in your letter what, if anything, is considered inadequate about the response to Interrogatory No. 5 (which we did not discuss orally). Please let me know what your problem is; for the time being (at least), the Applicants will stand on the answer as filed.
- 12. Interrogatorv No. 6 (11/15/85 Set). I do not understand the basis for your assertion that "[tlhe
Porte & GRAY Ms. 3i1110 Firner Cardo January 15, 1986 response to this question is incomplete." On the telephone I told you how this rather poorly drafted question was interpreted by the Applicants and you did not suggest that we had interpreted it incorrectly.
What you asserted was that you did not believe that the snswer was accurate, which is something I cannot do anything about. Since the proper interpretation of the intended question was responded to, I see no point in asking anyone to respond again. If you have something specific in mind as the basis for your suggestion of incompleteness, please let me know what it is so that I can try to get you the information you want; a generalized assertion of incompleteness, however, is of no heln whatsoever.
- 13. Interrogatory No. 7 (11/15/85 Set). I don't understand what you mean by your assertion that the recponse to Nc. 6 was a "non-anstter." The response to No. 6 identified four people or groups of people: Mr.
Wells, Mr. McAfee, Mr. Halstead and the post-6/30/84-retained CPRT contractors. Is what you are looking for a list of the post-6/30/84-retained CPRT contractors? .
- 14. Interrogatorv No. 8 (11/15/85 Set). The response to this interrogatory was truncated; it should have said "See response to Interrogatories Nos. 2 and 6." Unless the recanvas described above identifies someone overlooked who employed any of the procedures ennumerated in the response to Interrogatory Do. 1, this answer stands. If you want some particular additional details about Messrs. Wells, McAfee or Halstead, please set forth a specific question.
You are correct in noting that the request for a quantification of the number of TUGCO and Brown & Root personnel who are or have been engaged in irplementing any of the procedures identified in response to Interrogatory No. I was overlooked. I am, however, disinclined to commission someone to do an apparently pointless count of what could prove to be a large number of people unless you can supply some particular relevance. Would you accept an approximation? To what
~
~
C3 ort 0 6 @0AV Ms. Sillie Firner Garde January 15, 1986 i
degree of pre::si n? A what p n: in time should the count or approximation be made?
- 15. In-Process Discovery of CFRT. Since you have now filed a motion to compel, I see no point in further discussion on this matter.
Very truly yours, R. K. Gad III RKG/ajp cc: Robert A. Wooldridge, Esquire William A. Horin, Esquire bec:Mr. John W. Beck Mr. Terry G. Tyler Ms. Susan Palmer Thomas G. Dignan, Jr., Esquire William S. Eggeling, Esquire -
.s 1
6
TRIAL. LAWYERS FOR NBUC JUSTICE. P.C.
COUN5tLLosL5 CT LAW o SulTE 61t 2000 P STREET. NORTHWT.5T A%rso%v z aOisuAs WASHINGTON OC. 20036 (202)463 8600 LMCufM DeatCTOa AttHutlevANT staff ATTOa.Nty SILUL CARDL DittCTOst LtMRONMLNTAL wwSfLIALOwt4 PRO;tCT SAasARA reAff OFF<t MANACit KATHutN CuMetRAATCH stCatTARY January 6, 1986 Robert K. Gad III, Esquire Ropes and Gray 225 Franklin Street Boston, MA 02110 .
I I
Dear Bob:
This letter is to confirm our discussions regarding I discovery matters of the last three weeks.
In regard to the CPRT-related deficiency paper, you m
~ , [
i indicated in our conversation of December 24, 1985, that you f would make the CPRT deficiency material available, first that material that covers from 1 July 1985 to present and then the pre-July 1985 material under our present agreement.
As I told you on December 30, 1985, it is our preference that you make copies of the material available to us in r Washington, DC (as with the initial production of 30 last month) .
i If at some future time that arrangement is inconvenient either ,
1 party should feel free to discuss modifying the arrangements. l l
REQUEST FOR DOCUMENT PRODUCTION In regard to the September 4, 1985, Request for Document I
Production, we discussed on Jannuary 2, 1985, the problems and ,
solutions outlined below. !
According to the December 9, 1985, response, Applicants have ignored or modified the instructions set forth on pages 1-3' l of CASE's request, as follows:
(
l Instruction 1 - CASE requests all pertinent information known to Applicant, their officers, directors or employees, their agents, advisors, or counsel. This request is to include all CPRT/SRT documents.
The term " employees" is to be' construed in the broad sense of the word, including specifically (but not limited to): Texas l
Utilities, et al., Brown & Root, Gibbs & Hill, Ebasco, Cygna, O.B. Cannon, Cresap, McCormick l
and Paget, any consultants or subcontractors, l and anyone else performing work or services on l behalf of the Applicants or their agents or l subcontractors and anyone else performing work i or services on behalf of the Applicants or their agents or subcontractors. The term employee refers to all employees performing work for the Applicant, whether or not the Applicant intends to rely upon the information .
in meeting its regulatory requirements.
My understanding is that Applicant has modified the instruction to (1) not include any CPRT/SRT documents at this time because of the pre-hearing conference " agreement" on in process documentation; (2) contacted only those personnel, (employees, officers, directors, etc.) as an allegedly knowledgeable mediary has identified. Neither the identity of the mediary nor of the individual (s) or organizations respnnding to the question is identified in any of the responses.
l l Instruction 4 - This instruction requested information l from the minority owners of Comanche Peak. This was ignored completely as to the corporate files of the minority owners because everything the minority owners would have in their files, would have come from the Applicants.
Request 1.c. The language of question 1.c is clarified as follows:
l All notes of conversation or summaries or descriptions of conversations since January 1, ,, , .
1979 between NRC officials and Texas u L Utilities and/or Brown & Root officials _ ., l recommending or suggesting any management , ,
changes, or any dissatisfaction with specific ""
individual's performance on the attitude of management in general.
t We will expect answers to this question within 15 days of receipt U' of this letter.
Request 1.e. The language of this question is clarified and changed as follows:
A complete, up-to-dato list of the present job of any Texas Utilities or Brown & Root .
employee or the contractor personnel in the ' '
NRC operating license hearings, if, at the time they testified were de posed, or provided with affidavits, they worked for any of the Applicants (i.e. owners or contractors) or with sub-con *ractors or consultants at the plant.
We will expect answers to this question within 15 days of receipt 't s of this letter.
Request 1.f. Request 1. f . is clarified to provide classes of documents beyond the contracts.
"All documents" should be defined as
- 1. letters of initial contact
- 2. telecommunication memorandum 'O >
- 3. handwritten letters
- 4. letter of understanding
- 5. letters of intent
- 6. initial analysis *
- 7. statement of protocol
- 8. statement of scope
- 9. preliminary bids
- 10. memorandum of meetings
- 11. minutes of meetings CASE expects a response to this item within 15 days of the date of this letter. .
Recuest 10.h. CASE understands that Appendix Y of Revision 3 of 6 the CPRT Program Plan will be responsive to this request. If it ,
is not, CASE will file a motion to compel at that time.
l i
November 15, 1985 INTERROGATORIES Interrogatory 1- This question is clarified as follows:
Identify all mechanisms by which a possible failure to fully comply with an NRC ,
rule, regulation, or procedure or any plant -
procedure (hereinafter collectively identified as " deficiencies" or " deficiency") at CPSES 'd^ '
could have been or was identified since June -
- 30, 1984, whether part of the CPRT or not. In g your answer cite with specificity the written procedures, if any, applicable to each r mechanism the contractor or sub-contractor who ,.
used the mechanism and the current location of the mechanisms or forms. Also identify each f #'$ .
l l
_4_
type of written record made with respect to each mechanism.
For the purpose of clarification this question is intended to , ,
elicit information from all sub-contractors, contractors, and cr' vendors on the Approved Vendors List.
It is not acceptable to wait for the CPRT working files 5 4 for the ' procedures' or checklists that are currently in use by J; the CPRT.
CASE will expect all procedures, including the ,
checklists, to be made available for inspection and copying during the next 15 days.
Interrogatory 2 is clarified as follows:
Identify all classes of persons other than -
full time employees of TUGCO or Brown and Root l f' ' ' a who handled any of these mechanisms since June 30, 1984. " Classer of persons" is intended to allow (but not require) the name of a particular person. It is intended to disclose the name of all organizations or individuals which have been retained by the Appplicant, whether or not they are currently retained, who provided an opinion, made observations about t'he plant, or formally used any of the mechan-isms identified in question 1.
As I explained to you in our conversation on January 2, _
1985 this question is intended to identify all the individuals, ,
consultants, organizations, sub-contractors who were retained to / .' o -'
perform any evaluations regarding possible deficiencies in construction or design at the plant, whether or not they were
}. ' ,
ultimately hired.
Further, the answer provided to this question was totally inadequate. CASE does not consider the terms "certain engineering support" or "certain quality control inspectors" or "other support services" to be specific enough.
We request that the answer be expanded to include the clarifications identified above, and we expect an answer within 15 days.
Interrogatory 3 - Applicants did not answer this question because it did not initially identify any persons outside of the TUGCO, Brown & Root, and the CPRT in response to question 2. Since the
' class of persons should now be included in a proper response to question 2, please respond to this interrogatory within 15 days.
As we discussed last Thursday, this interrogatory seeks the procedures (oral or written) by which a person - such as a visitor, an independent contractor, or a consultant to a sub-
contractor, or a contractor - retained to develop a bid should be included.
Interrogatory 4 - Applicant provided response on the basis that it knew of no such persons. In light of the clarification, Applicant should now respond within 15 days. &
?
Interrogatory 5 - To the extent that this answer does not-provide for all the information on how possible deficiencies were handled, please update this response with the other responses.
Interrogatory 6 - The response to this question is incomplete.
Provide the names of the contractors referred to in the December 9, 1985, answer and any other persons or contractors with whom the Applicants have discussed the subjects identified in 6(a-d).
We will expect an answer within 15 days of receipt of this letter.
Interrogatory 7 - The answer given is inadequate since the phrase "all of them" refers back to the non-answer to interrogatory #6. -
Identify by name or organization all the individuals or contractors which are responsive to interrogatory #6. We will
- expect this answer within 15 days of receipt of this letter.
Interrogatory 8 - Applicants have no~. answered this question at all. After identification of named individuals or organizations above, respond to this question (i.e. brief job description).
Also, the question asks for the Applicant to identify the number of persons excluded from the answer - that is, the number of Brown & Root and TUGCO employees.
I hope that the above clarifications remove any misunderstanding you may have had about the questions in CASE's September 4, 1985, Document Request and the November 15, 1985, Interrogatories.
On the following issues I 'elieve we each have firm positions which will require resolution by the Board.
If you believe that any of the following issues are resolvable without the Board, please contact me before 4pm on Tuesday, January 7, 1986. Likewise, if you do not intend to answer any of the clarifications, please notify me before 4pm on January 7, 1986.
Unresolvable Discutes ,
Document Requests (re: CPRT) - Timeleness of production of CP".T procedures (i.e., attribute inspection checklists) . ,
(Requests Ba&b).
_r_
~.
Interrogatories-(re: Expert status of CPRT of ficials) -
- I:.munity from discovery (Int. 12-14).
j- -
j Please contact me upon your review of this letter, but i no later than 4pm on Tuesday, Jan. 7, 1986, so that my motion to
. compel can reflect accurately our agreements and disagreements on
- the status of discovery.
] Sincerely, E CC , f ( % (,-
Billie P. Garde
! Representative of CASE 4
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9 Lfiro n Sam orrects o, BISHOP, LIBERMAN. COOK. PURCELL & REYNOLDS 880C SevENTEthTM ST ACCT. N. W.
wa 5 Mth 0 TON. D C 30036 1
tacal est-seco sh h tw ,oma sinMon. Lestamam 6 CQQR va6ta secate ah%aw us iis s avtN u t CF TME a** t meCa t TL6tcoast a (rosi e st-s e es i February 13, 1986 c- .- e s- ,e .oon.
(flE) 704-O'C 0 Tsor= . m e, Ms. Billie Garde Trial Lawyers for - aws o. tef e.a6 Public Justice, P.C. '
2000 P Street, N.W.
suite 611 Washington, D.C. 20009 Subj: Texas Utilities Electric Company, et al.
(Comanche Peak Steam Electric Station Units 1 & 2); Docket Nos. 50-445 and 50-446
Dear Billie:
information concerning Applicants provide herewith further for Document Production, their response to CASE's 9/4/85 Request pursuant to the Memorandum and Order (Discovery), dated December 23, 1985. We have identified some materials responsive These documents to the gs requests addressed in the Memorandum and Order _. There are noted below. Some file searches are still ongoing.
are'also a few questions we wish to discuss with respect to some of these requests, rinally, there is a procedural matter which should be addressed prior to production of some documents. This is also discussed below.
l The procedural question to be addressed concerns the application of the existing protective order issued by the Board to the documents to be produced pursuant to the Board'sInorder set forth in the December 23, 1985, Memorandum and Order.
particular, the Board ordered that Applicants produce documents job performances and status in concerning response tocertain request employees'"
1.g., subject to the protective order However, that previously entered into by the parties."
protective order addresses only the non-disclosure of the ldentities of certain witnesses or prospective witnesses The Board's to whom express pledges of confidentiality were made.
present directive requires the production of information as to which certain rights of privacy exist, even thoughThus, no express the
" pledge" of confidentiality may have been made.
protective order must be revised if it is clearly to To apply this end, to theI 1
material the Board has now directed be produced. The proposed have enclosed a draft " Revised ProtectiveThere Order".
are no deletions revisions are bracketed and underlined. I suggest you give me a call from the original protective order.
/~' to discuss any questions you may have regarding the revisions.
o A Once we agree on language, we can transmit the order to the Board for execution.
With respect to the individual requests, Applicants we have the will following points. Regarding request 6.d.,
produce the SAFETEAM material at the site where SAFETEAM files are maintained. Consistent with the Memorandum and Order, the nature of the Applicants will without includeregard materials regardless to Applicants' ofconcern, assessment ofi.e._,
Further, the concern's relevance to harassment or intimidation.
pending a Board ruling changing the " ground rules" for litigation of HITS allegations, Applicants will make available material developed by the SAFETEAM regarding concerns posed by or about QC Inspectors which involved incidents or circumstancos occurring orior to July 1, 1984. Applicants note that while SAFETEAM materials are normally prepared in a manner precluding identification of an individual raising a concern, occasionally notes and documentation in SAFETEAM files contain information from which a concernee may be identified. In keeping with it SAFETEAM's assurance to individuals reporting concerns that will do its test to preserve confidentiality of the identity of such persons, Applicants will delete from the SAFETEAM records to be provided all references to the name of or personallyinformation identifiable Additionally, the integrity of the SAFETEAM program requires confidential treatment of the SArETEAM materials that are
/~' provided. Applicants expect the SAFETEAM materials to be included within the scope of the protective order, as directed by the Board in the Memorandum and order, to prevent disclosure of potentially identifying information.
With respect to requests 12.a and b., Tony committed at the prehearing conference to coordinate with Mrs. Ellis to determine whether these requests are To duplicative date we have ofnot herheard previously from you filed on requests. (Tr. 24,210.) as was noted at the prehearing conference, this. In addition, Applicants transmitted the MAC Reports to 16,which 1985,you fromrefer Mr. in request 12.b. by letter dated September Mrs. Ellis Wooldridge to the Docket-1 Board and service list.Please let me know whether should have copies of those reports. if so, which you consider these questions to remain I also note that open and, request 12.d. overlaps man portions thereof.of Mrs. Ellis's prior requests concerning outside Secondstudies Set of First Set Question 10, Comanche Peak. (See e.g.,
Questions 11-14.)~~Nevertheless, Applicants are in the process of conducting an additional file search.
Further, concerning the portion of request would13 directed refer you to atathe post construction verification process, I in response to question procedure previously transmitted to CASE" Post Construction 32 of CASE's 17th set (QI-QP-ll.3-40, That Inspection of Electrical Equipment and Raceways").
/~' procedure governs the specific post construction verification
1 4
1 f~% Applicants suggest activities review relatedthat to procedure the T-shirt incident.
(we can provide subsequent that CASE revisions if you wish) to focus the request. As framed, the request is not sufficiently clear to focus our efforts.
With respect to request 14.b., we have identified documents ;
responsive to this request. (This request overlaps requestThese 14.a.
The documents are actually responsive to both requests.)
will be made available in accordance with the procedures Documents relating described in our December 12, 1985, response.
to the CPRT review of liner plates will be produced with other CPRT documents in accordance with the applicable procedures.
Finally, regarding request 15.a., included with the documents Applicants have identified to date are Applicants' letters to the NRC responding to certain questions raised concerning the coatings program. These documents are already available in the NRC PDR in Washington. The Texas Utilities' letter numbers and dates are, as follows:
TXX-4262 August 21, 1984 TXX-4260 August 14, 1984 TXX-4249 August 10, 1984 -
TXX-4232 July 20, 1984 TxX-4225 July 16, 1984 Txx-4201 June 22, 1984 fg With respect to the requests not directly identified addresseddocuments.
any responsive above, Applicants have thus far not Please give me a call to discuss these matters.
Sincerely,
\ ~
L Willi m A. Horin Enclosure cc: Robert A. Wooldridge R. K. Gad III
O Draft February 12, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
) Docket Nos. 50-445 and TEXAS UTILITIES ELECTRIC ) 50-446 COMPANY, ET AL. )
) (Application for (Comanche Peak Steam Electric ) Operating Licenses)
Station, Units 1 and 2) )
REVISED PROTECTIVE ORDER .
It has come to the attention of the Board that several
/~' potential witnesses and other individuals who may have knowledge of i~ssues in this proceeding have been granted pledges of confidentiality by the Applicants and the Intervenor. Applicants have interviewed or otherwise requested information from their employees regarding certain matters and in doing so have made pledges of confidentiality to them not to release their identity. (Applicants also maintain in their files information regarding these or other employees as to which Applicants and/or the subject employees have certain rights of privacy.] Intervenor has advised Applicants of various witnesses, the identities of whom it feels bound not to disclose because it has obtained information from them on a confidential basis. Both parties feel bound by their pledges D
P o
I~h of confidentiality (and/or existing rights of privacy) even though release.of the identities of [or other information regarding] these individuals may be necessary for the development of a full record.
In view of the foregoing and at the request of the Parties, it is hereby ORDERED that:
- 1. The party who made a pledge of confidentiality (or who possesses information as to which rights of privacy exist] shall reveal to the other parties in this proceeding the identity of [or information regarding) an individual to whom the pledge was made [or privacy rights exist), provided those parties sign the or
' Statement of Non-disclosure attached to this Order, is an NRC employee subject to the internal -
requirements of NRC Manual Appendix 2101, concerning the treatment of protected information;
- 2. The party on whose behalf a Statement of Non-
/N disclosure is executed shall, prior to the execution of that Statement, notify the party that pledged confidentiality [or possesses information as to which privacy rights exist) its intention to execute such a Statement, including in this notice the identity of the. individual intending to execute the Statement.
The party so notified shall have the opportunity to object to he execution of the Statement of Non-disclosure, provided such objection is made as quickly as possible, but in any event, no later than 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> after receipt of such notices
- 3. The parties to whom disclosure is made shall not disclose the identity of the individual (or such information as to which rights of privacy existl, unless. required by law, except for purposes of preparing their case in this proceeding and then only when the person to whom disclosure is made acknowledges his obligation to be bound by the terms of this Protective Order by executing the attached Statement of Non-disclosure;
^
- 4. The parties shall maintain a separate service list 4 identifying the individuals who receive documents subject to this Protective Order. These documents shall be identified as subject to this Protective p Order;
O D. 5. Persons who receive information subject to this Protective Order shall use it solely in connection with thiu proceeding;
- 6. Any person who has reason to believe that documents including protected information have been lost or misplaced or any person who has reason to believe that the terms and conditions of this PrLcective Order have been violated shall notify the Board.
It is so ORDERED. .
PETER BLOCH O
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