ML20203K093
| ML20203K093 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 08/01/1986 |
| From: | Eggeling W ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20203K088 | List: |
| References | |
| OL, NUDOCS 8608060153 | |
| Download: ML20203K093 (20) | |
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t Filed: August 1, 1986 ,
ND COttu -
UShh UNITED STATES OF AMERICA N '4 p y ,.4 NUCLEAR REGULATORY COMMISSION CL or u before the C /.
ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
) Docket Nos. 50-445-OL TEXAS UTILITIES ELECTRIC ) 50-446-OL COMPANY et al. )
) (Application for an (Comanche Peak Steam Electric ) Operating License)
Station, Units 1 and 2) )
)
APPLICANTS' RESPONSE TO CASE REQUEST FOR PRODUCTION OF DOCUMENTS (JUNE 27, 1986) AND MOTION FOR PROTECTIVE ORDER Pursuant to 10 CFR S 2.741(d), the Applicants 2 hereby respond to the Request for Production of 1Except as specifically indicated to the contrary herein, the term " Applicants" shall reflect the fact that these responses are being provided by Texas Utilities Electric Company, the lead owner of the CPSES project pursuant to TUEC's authority and responsibility to control the licensing of that facility under the terms of the Joint Ownership Agreements. Please see the section regarding " Discovery Regarding Minority Owners of CPSES," infra.
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l Documents filed by CASE on June 27, 1986.
Except as generally or specifically objected to below, the Applicants will produce the documents or things requested either at the offices of the Texas Utilities Generating Co., 400 North Olive Street, Dallas, Texas, at the CPSES site, or at the offices of the Minority Owners or their agents or representatives (whichever is the normal and customary location of the thing to be produced) during normal business hours at a specific time and date reasonably convenient to counsel and representatives of the parties and agreed upon in advance. Arrangements for such inspections may be made by contacting the undersigned counsel.
GENERAL RESPONSES Duplication of Discovery Sought in Another Proceeding.
Applicants have previously voiced their objections to CASE's filing of discovery in this proceeding which merely duplicates discovery filed --
and stayed -- in the construction permit extension proceeding. Continued attempts to conduct discovery in such manner runs afoul of established principles in Federal civil practice that discovery may not be used l
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l "merely to subvert limitations on discovery in another 1 proceeding." Wilk v. American Medical Association, 635 F.2d 1295, 1300 (7th Cir. 1980). Where discovery is
" designed primarily to serve as a vehicle of preparation" for another case, issuance of a protective order limiting such discovery is appropriate. Beard v.
New York Central R.R. Co., 20 F.R.D. 607, 610 (D. Ohio 1957). The instant requests are identical to those filed in the CPA docket. Applicants submit that CASE's approach to discovery flouts the principles described above and imposes additional burdens on Applicants that they should not be forced to bear.
Contrary to CASE's previous assertions, the two dockets are not " companion" proceedings. The issues in the two proceedings are distinctly different, albeit involving the same plant. Whereas some overlap of relevant information is inevitable, in no way can either the scope or nature of the issues be described
- as identical. Indeed, we believe the Commission has made clear its view that the borders of construction permit extension litigable issues are marked primarily by the consideration that construction permit extension cases and operating license cases are not intended to i
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1 overlap into the same areas. Washington Public Power Supply System (WPPSS Nuclear Project Nos. 1 & 2), CLI-82-29, 16 NRC 1221, 1228-29 (1982). Applicants therefore object generally to all the categories in the CASE Request.2 Discovery Relating to CPRT
, To the extent these document requests call for results of CPRT activities: (i) the CPRT Central Files have been and will be produced for inspection and copying in the manner and at the time set forth 5
2We suggest that -- in connection with the motion made hereinafter -- the Board might appropriately protect the interests of all the parties by directing the entry of a protective order sustaining this objection without prejudice to the right of CASE to propound anew any document request that CASE has reviewed and tailored to the issues properly relevant to Contention 5 in this operating license proceeding and to the prior rulings of this Board regarding discovery therein.
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in the Applicants' responses to the interrogatories propounded by CASE under date of 8/27/85; (ii) the CPRT Working Files for action plans that are completed have been produced for inspection and copying by CASE; and (iii) the Working Files for action plans that are still in process will be produced for inspection and copying in the manner and at the time set forth in the same responses. The CASE Requests are therefore all ebiected to generally insofar as they call for any i
other form or timing of discovery of such documents.
i Discovery Regarding Minority Owners of CPSES Under the terms of the Joint Ownership Agreement dated January 2, 1979, as modified and amended, governing Comanche Peak Steam Electric System Project, the Texas Utilities Electric Company ("TUEC") is the designated agent of all the owners of the Project, and has been granted sole authority and responsibility for the design, construction, licensing, operation and maintenance of CPSES Units 1 and 2. As set forth in j that Agreement, TUEC, as Project Manager, is further granted complete possession and control of the Project.
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l The responses to these Document Requests are, therefore, except where otherwise specifically noted, those of the Project Manager TUEC. In the few instances where the CASE Request seems specifically to seek documents possessed only by the " Minority Owners of the Project," (viz., CASE Requests Nos. 1 and 2),
the responses of Brazos Electric Power Cooperative, Inc., Tex-La Electric Cooperative of Texas, Inc. and Texas Municipal Power Agency thereto are identified and set forth, and those responses, including their respective invocations and assertions of privilege and attorney work product, are the responses of each such owner so identified and set forth.
Motion for Protective Order To the extent required under the Commission's Rules of Practice, the Applicants move for a protective order in accordance with the objections and responses that follow.
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, SPECIFIC RESPONSES i
l Without waiving their foregoing General Objections or Motion for Protective Order, but rather 1
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expressly incorporating them in the responses to each individual Request hereinafter, Applicants set forth their Specific Responses as follows.
Request No. 1.
i The Project Manager, TUEC,has no documents such ,
as are described by Request No. 1.
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i The responses of the Minority owners, Brazos Electric Power Cooperative, Inc. ("Brazos"), Texas
! Municipal Power Agency ("TMPA"), and Tex-La Electric l Cooperative of Texas, Inc. (" Tex-La"), are' set forth in Appendices A, B and C hereto.
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Request No. 2.
The Project Manager, TUEC,has no documents such I
as are described by Request No. 2.
The responses of the Minority Owners, Brazos Electric Power Cooperative, Inc. ("Brazos"), Texas Municipal Power Agency ("TMPA"), and Tex-La Electric j Cooperative of Texas, Inc. (" Tex-La"), are set forth in
! Appendices A, B and C hereto.
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Request No. 3.
There are no documents responsive to this request, inasmuch as the quoted statement of TUGCO management was not based upon any particular document r
(or known group of documents) but rather was the product of all the facts and concerns that had recently come to management's attention.
To the extent this Request is intended globally to categorize all documents which may contain information relevant to the knowledge and opinion of management as expressed in the quoted statement, Applicants object on the grounds that it is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. It would encompass as well all the internal communications to, by, and between counsel and representatives of the Applicants with regard to their plans to complete a licensable facility and to conduct these proceedings before this Board. If so intended, it is therefore i objected to on this ground as well, i
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Recuest No. 4.
Applicants object to this Request in its entirety on the grounds that it is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. The Applicants further object to producing the documents described by this Request to the extent that the only possible evidentiary value of the information sought would be in connection with the CPA docket. The Request is therefore contrary to the discovery suspension orders j issued by this Board and by the Appeal Board in that docket.
Applicants further object to this request on the j ground that broad general discovery such as is posed by this request is no longer authorized. The Board long ago precluded such general fishing expeditions,3 aSee Memorandum and Order (Scheduling Matters),
, December 28, 1983, at 3. Therein the Board noted that discovery was open, in fact was reopened in that Order, only with respect to "any new information filed in response to matters previously left open by the decisions of the Board."
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J limiting discovery to certain discrete areas which were to be refined on a case-by-case basis.* Wholesale discovery on any and all topics related to Coraanche Peak design and construction, as comprised within this request and its predicate, is no longer authorized in this proceeding. See also Applicants' Objections to CASE Interrogatory No. 2 (July 2, 1986), at pp. 4-7.
Recuest No. 5.
Applicants object to producing the documents described by this Request on the ground that the only l
possible evidentiary value of the information sought would be in connection with the CPA docket. The Request is therefore contrary to the discovery suspension orders issued by this Board and by the
- Appeal Board in that docket.
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- Discovery subsequent to the December 28, 1983, i scheduling order has been authorized principally with respect to Applicants Plan to respond to the Memorandum and Order (Quality Assurance for Design), harassment i and intimidation, the MAC Report, " Credibility" issues i and the CPRT.
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Request ro. 6.
Applicants object to producing the documents described by this Request on the ground that -- to the extent the reference to all minutes of meetings of the Owners' Committee at which assessments of the status of the plant were presented includes all portions of those minutes -- the documents sought contain material which can have no relevance to any issue remaining within the admitted Contention No. 5.
Applicants further object to producing the documents described by this Request to the extent the evidentiary value of the information sought would be useful only in connection with the CPA docket. The Request is therefore contrary to the discovery suspension orders issued by this Board and by the Appeal Board in that docket.
The Applicants further object to producing the
. documents described by this Request on the ground that ,
they are comprised of and reflect exchanges of information, communications and deliberations which report upon and formulate the status, projections, tactics and strategy of the Joint Owners' effort to i
obtain a license to operate the Comanche Peak Steam Electric Station. As such, those communications and deliberations comprise trial preparation materials within the meaning of 10 CFR $ 2.740(b)(2). Cf. Home Ins. Co. v. Ballenger Corp. 74 F.R.D. 93, 101 (N.D. Ga.
1977); Spaulding v. Denton, 68 F.R.D. 342, 346 (D. Del.
1975). They are therefore not properly the subject of discovery by an adversary in the proceeding regarding which the deliberations and communications were necessarily undertaken -- without that adversary having first made a showing that he has substantial need of the materials in preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Id.
CASE has yet even to attempt to make such a showing.5 5We submit that it will be very difficult for CASE to do so, inasmuch as all the facts properly obtainable by CASE and that might be contained in communications between the Joint Owners of Comanche Peak are, or were, fully available to CASE through alternative means which do not jeopardize the integrity of the deliberative processes vouchsafed against intrusion by 6 2.740(b)(2). Indeed, CASE has already had virtually unlimited and repeated discovery opportunities regarding these facts insofar as they may be relevant to the remaining issues within the admitted Contention No. 5. See notes, 3-4, supra.
The Applicants further object to producing the documents described by this Request on the ground that to the extent that they record or reflect the views, knowledge, opinions or advice of the Applicants' attorneys, or any of them, they constitute either privileged attorney / client communications or attorney work product materials which are immune from such discovery. See Upjohn Co. v. United States, 449 U.S.
383 (1981).
Respectfully submitted, Thomas G. Dighan r. l R. K. Gad III William S. Eggel g ROPES & GRAY 225 Franklin Street Boston, MA 02110 (617) 423-6100 D
1 APPENDIX A i
I Brasos response to CASE's 6/27/86 discovery request NRC 50-445-oL
- 1. All documents in the possession of any of the owners of comanche Peak SIS that were generated in the course of the
" monitoring program . . . undertaken by Tex-La in connection with Comanche Peak," including but not limited to all assessments, independent assessments, evaluations, interim reporte, notes of meetings, and raw data generated. See (Burchette's speech]
Brases aleotric Power Cooperative, Inc. will produce for inspection and copying, at its eeneral office at 2404 LaSalle Avenue, Waco, Texas, at such times during regular business hours as may be mutually agreed upon by the parties or their representatives, the following documents in its possessions
- a. All reports provided by southern magineering ca. and by GDS Associates, Inc. in conjunction with the monitoring program referenced in the question.
- b. All other documents, not subject to privilege, generated in the course of said monitorieg program.
- 2. To the extent any monitoring, independent assessment, or evaluations were conducted by other minority owners of comanche all the documents as identified in Request #1 Peak above,atgenerated any time,by these independent assessments, monitoring, o,r evaluations.
Insofar as this question relates to the southern Engineering-eDs nosooistes monitoring program, Brason's response to Question 1 is appliamble here. Brasos so interprets the question. Brasos has otherwise relied on TURC and the'NRC for information respecting the status of the plant.
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APPENDIX B
- 1. All documents in the possession of any of the owners of Comanche Peak Steam Elect!1c Station that were gen-ersted in the course of the " monitoring program . . . under'-
taken by Tex-La in connection with Comanche Peak," including but not limited to all ansessments, independent assessments, evaluations, interim reports, notes of ' meeting, and raw dats generated. See " Permits / Licenses: The Minority owners' Responsibilities The Function of Legal Counsel," presented by William H. Burchette, General Counsel, Tex-La Electric Coopera-tive of Texas, Inc., before the NRECA Committee on Joint Owner-ship Meeting, May 209-21, 1986, p. 5, hereafter "Burchette Speech" (copy attached).
Please include all documents (1) between the persons conducting the assessment, monitoring, and evaluation and the persons requesting such assessment, monitoring, and evaluation; (2) between the persons requesting such assessment, monitoring, and evaluation and other persons within Tex-La; and (3) between any person employed by, representing, or providing contracting or consulting services to Texas Utilities Electric Company or any of this parents, subsidiaries, or predecessors in interest and any perso,n at Tex-La with respect to such assessment, moni-toring, or evaluation.
l RESPONSE: Teias Municipal Power Agency ("TMpA") has l
no such. documents.
- 2. To the extent any monitoring, independent assess-ment, or evaluations were conducted by other minority owners of
comanche Peak at any time, all the documents as identified in Request #1, above, generated by these independent assessments, monitoring, or evaluations.
RESPONSE: TMPA is currently engaged in litigation in i
two District Courts in the state of Texas arising out of TMPA's ownership interest in Comanche Peak, and TMPA has engaged the services of attorneys to represent it in such litigation. In connection with the litigation, TMPA's attorneys have and are analyzing various aspects of Comanche Peak. Any information or documents that may exist regarding any such ef forts were, and are being, prepared by TMPA's attorneys in anticipation of and in connection with the litigation, as part of a comprehensive analysis of TMPA's rights and obligations respecting Comanche Peak. Any such information or documents, accordingly, are privileged or constitute the work product of TMPA's attorneys and are not subject to discovery.
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APPENDIX C Tex-La Response to CASE Request for Production of Documents -
Dated June 27, 1986
- 1. All documents in the possession of any of the owners of Comanche Peak Steam Electric Station that were generated in the course of the " monitoring program . . . undertaken by Tex-La in connection with Comanche Peak," including but not limited to al1 assessments, independent assessments, evaluations, interim reports, notes of meeting, and raw data generated. See
- " Permits / Licenses
- The Minority owners' Responsibilities The l Function of Legal Counsel," presented by William H. Burchette, i
l General Counsel, Tex-La Electric Cooperative of Texas, Inc.,
before the NRECA Committee on Joint Ownership Meeting, May i 209-21, 1986, p. 5, hereafter "Burchette Speech" (copy attached). '
Please include all documents (1) between the persons conducting the assessment, monitoring, and evaluation; (2)
! between the persons requesting such assessment, monitoring, and evaluation and other persons within Tex-La; and (3) between any person employed by, representing, or providing contracting or consulting services to Texas Utilities Electric Company or any of its parents, subsidiaries, or predecessors in interest and any person at Tex-La with respect to such assessment, monitoring, or evaluation.
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RESPONSE: The documents requested, to the extent not privileged, are available for inspection and copying at the offices of GD8 Associates, Inc., 2525 Cumberland Parkway, Suite 450, Atlanta, Georgia 30339, on five days' prior notice to Foster De Reitses, Heron, Burchette, Ruckert & Rothwell,1025 Thomas Jefferson Street, N.W., suite 700, Washington, D.C.
20007, telephone (202) 337-7700. Tex-La will withhold, as privileged, any communications between Tex-La and its attorneys based on the attorney-client privilege, any attorney work
! product, and any documents or writings prepared by Tex-La's consultants in anticipation of litigation.
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- 2. To the extent any monitoring, independent assessment, or I evaluations were conducted by other minority owners of Comanche Peak at any time, all the documents as identified in Request
- 1, above, generated by these independent assessments, l
monitoring, or evaluations.
I RESPONSE: Tex-La does not possess any of the documents described in Request No. 2.
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CERTIFICATE OF SERVICE I, William S. Eggeling, one of the attorneys for the Applicants herein, hereby certify that on August 1, 1986, I made service of the within " Applicants' Response to CASE Request for Production of Documents (June 27, 1986) and Motion for Protective Order" 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 l 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 l U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C. 20555 f
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Renea Hicks, Esquire Ellen Ginsberg, Esquire-Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel P.O. Box 12548, Oapitol Station U.S. Nuclear Regulatory Commission Austin, Texas 78711 Washington, D.C. 20555 Anthony Roisman, Esquire Mr. Lanny A. Sinkin Executive Director Christic Institute Trial Lawyers for Public Justice 1324 North Capitol Street 2000 P Street, N.W., suite 611 Washington, D.C. 20002 Washington, D.C. 20036 Dr. Kenneth A. McCollom Mr. Robert D. Martin Administrative Judge Regional Administrator 1107 West Knapp Region IV Stillwater, Oklahoma 74075 U.S. Nuclear Regulatory Commission Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 Ms. Billie Pirner Garde Geary S. Mizuno, Esq.
Citizens Clinic Director Office of the Executive Government Accountability Project Legal Director 1901 Que Street, N.W. U.S. Nuclear Regulatory Commission Washington, D.C. 20009 Maryland National Bank Bldg.
Room 10105 7735 Old Georgetown Road Be the sda , Maryland 20814 Elizabeth B. Johnson Administrative Judge Oak Ridge National Laboratory P.O. Box X, Building 3500 Oak Ridge, Tennessee 37830 Nancy Williams Cygna Energy Services, Inc.
101 California Street Suite 1000 San Francisco, California 94111
. ir William S. Egge
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