ML20204B605
| ML20204B605 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 03/19/1987 |
| From: | Gad R ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2863 OL, NUDOCS 8703250107 | |
| Download: ML20204B605 (6) | |
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00CMETED Filed: March 1/, 198 AISNRC 1? M@ 23 P3:31 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CFFIC.r. _ _ _ _,'.TA;d
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00CKET'im; 4 gyg before the BRAHCd ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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Docket Nos. 50-445-OL
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50-446-OL TEXAS UTILITIES GENERATING
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COMPANY et al.
)
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(Application for an (Comanche' Peak Steam Electric
)
Operating License)
Station, Units 1 and 2
)
)
APPLICANTS' OBJECTION TO ASLB MEMORANDUM AND ORDER (CPRT Interrogatories Set 12)
Pursuant-to 10 C.F.R 9 2.752, the Applicants respect-fully object to the Board's " Memorandum and Order (CPRT Interrogatories Set 12)" in the respects and for the reasons hereinafter set forth.
Interrogatory No. 7(a)
Interrogatory No. 7 contained two subparts.
Sub-part (a) by its terms and context called for an unqualified "yes" or "no."
Subpart (b) required, in the event of a "yes" answer to subpart (a), the answert to a question judged by the Applicants to be unanswerable because its premise made no sense.
1"[Iln precise detail C.4SE CPRT In ter-rogatories - Set 12, Interrogatory 7(b).
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- The Applicants answered subpart (a)
"Yes."
The-Applicants then answered subpart (b) to the best of their ability, given the imperfections in the question.
In its Motion to Compel,' CASE sought no t-elief in respect of subpart (a) of Interrogatory No.
7.
' CASE did complain.about the response to subpart (b),
but only on the ground that the answer assertedly lacked the requisite precise detail."2 This objection could only relate'to subpart-(b) of Interrogatory No. 7 given the wording of the interrogatories, and CASE made clear its complaint was addressed'to subpart (b): "As further clarifi-
."3 cation, our concern in 7.6 is:
In its Nemorandum and Order the Board pronounced the Applicants' answer to subpart (a) inadequate:
"We find that Applicants did not adequate re-spond[] to the initial question, particularly with respect to the population that is being sampled."
Nemorandum and Order at 6 (emphasis added).
The Board then appears to propound several new and additional questions to the Applicants:
"Is the sample solely of work that was completed prior
.to the commencement of the CPRT?
Prior to the Techni-2" Applicants have not responded in the precise detail uhich case is seeking."
CASE's Nation to Compel Applicants to Provide Complete Answers to CASE's 9/18/86 CPRT Discovery
-- 12 Sampling, " filed 1/21/87, at 27.
ild. (emphasis added).
Note that CASE urged in its Nation to Compel not that subpart (b) were answered, but that the Applicants be ordered to answer questions different from the question it had propounded.
This is a misuse of the discovery process not legitimated by repetition. -
Li.
cal Review Teams'.(TRT's) work?
Does it' include or exclude repairs made-in response to the TRT or-CPRT findings?"
Id.
Finally, the Board ordered the Applicants to answer the additional questions propounded by CASE in its Notion to Compel.'
The Applicants respectfully submit that by this Order the Board has committed three different errors:
First, the Board has " allowed" a motion to compel that was not filed.
CASE made no objection to the response to
.subpart'(a).
Thus, the Applicants were never put on notice that the adequacy of that response was being considered by the Board, nor, of course, were the Applicants afforded an opportunity to respond to any objection or concerns regard-ing the propriety or sufficiency of their answer to that subpart.
Second, the Board has sanctioned CASE's abusive use of the motion to compel as a device for propounding questions in-addition to and different from the interrogatories with which the Applicants were served (and long after the time for-propounding these interrogatories had elapsed).
It is axiomatic that the motion to compel lies only in the case of non-responsive answers.5 It necessarily follows that the 4"We also refer Applicants to the clarification provided by CASE in its motion to compel and we ask that Applicants respond fully."
Id.
510 C.F.R.
9 2.740(f)(1):
"I f a party upon whom a request for answers to interrogatories is served fa i ls to respond or objects to the request, the party
+
A extent of the power'to adjudicate motions to compel is limited to ordering answers to questions "in accordance with the request."*
The motion to compel is not properly used as a vehicle for propounding interrogatories borne of after-thought, and CASE may not properly be permitted to achieve that purpose and result.
Third and most troubling of ali, in ordering the Applicants to answer questions propounded by the Board rather than by-CASE, the Board's Nemorandum and Order makes it appear that the Board has adjudged this aspect of the t
Notion to Compel based not on the responsiveness of answers l-l to questions as framed, but on the basis of the Board's 1
judgments about what information should be made available in order to assess the adequacy of the response to Contention 5 on which the Applicants are presently working.
Prescinding from the total lack of nexus between such judgments and the literal tenor of the prior interrogatories, in so doing the Board's Nemorandum and Order has the effect of creating the impression that it is monitoring and substantively reviewing the exchange of discovery with a view to formulating judgments about the resolution of Contention 5 and the adequacy of the Applicants' proof in opposition to that contention.
Matters exchanged in discovery are not submitting the request may move the presiding officer for an order compelling a response in accordance with the reques t. "
(Emphasis added.)
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4 evidence -- and their substance is therefore not before the tribunal -- until the evidentiary hearing is convened and then unless and until a given: discovery response has been offered and received into evidence.
E.g.,
8 Wright &
MLLler, Federal Practice and Procedure 38, N 2007..The fact of the matter is that we are not now in hearing and the
. Applicants have not yet offered their proof.
For the foregoing reasons, the Applicants object to the order compelling further responses to Interrogatory No.
7.
Respectfully submitted, TEXAS UTILITIES ELECTRIC COMPANY For the owners of CPSES By its attorneys, f
^
u'-
3 Thomas G.
Dignan, Jr.
R.
K.
Gad III William S.
Eggeling Kathryn A.
Selleck l
Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 5-
i i
000KETED USNRC CERTIFICATE OF SERVICE 17 MM 23 P3 :31 I,
R. K.-Gad III, one of the attorneys for the Applicants I mkqhk.[g"it[k[
herein, hereby certify that on March 19, 1987, BRANCH the within document 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 Ms. Billie Pirner Garde Administrative Judge Midwest Office 881 W.
Outer Drive 3424 N. Marcos Lane Oak Ridge, Tennessee 37830 Appleton, WI 54911 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 Lawrence J.
Chandler, 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 r
4
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s 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 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 Elizabeth B. Johnson Geary S. Mizuno, Esq.
Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P.O.
Box X, Building 3500 U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Washington, D.C.
20555 Nancy Williams Cygna Energy Services, Inc.
101 California Street Suite 1000 San Francisco, California 94111
.h R.
K.
Gad III j