ML20204B721
| ML20204B721 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 03/20/1987 |
| From: | Ellis J Citizens Association for Sound Energy |
| To: | TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| References | |
| CON-#187-2886 OL, NUDOCS 8703250135 | |
| Download: ML20204B721 (14) | |
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3/20/87 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00CKETED USNRC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of l
DocketNos.5@!44b b.
I and 50-446 TEXAS UTILITIES ELECTRIC i
CFFICE Cr % C7 7 COMPANY, et al.
l O')CKE h!f;(, Di. '
l (Application for an'"" "
(Comanche Peak Steam Electric l
Operating License)
Station, Units 1 and 2) l CASE'S RESPONSE TO APPLICANTS' INTERROGATORIES TO INTERVENOR (Set No. 1987-5) and MOTION FOR PROTECTIVE ORDER CASE (Citizens Association for Sound Energy), Intervenor herein, hereby files this, its Response to Applicants' 2/24/87 Interrogatories to Intervenor (Set No'. 1987-5) and Motion for Protective Order d/, and requests issuance by this Board of a protective order relieving CASE of any obligation to respond to Applicants' Interrogatories to Intervenor (Set 1987-5).
CASE's objections to Set 1987-5 are similar to our objections to Sets 1 through 3 (see CASE's 2/17/87 Motion for. Protective Order and Memorandum in Support) and for the most part our arguments herein are the same.
In addition to general objections applicable to all or a substantial portion of the interrogatories, CASE also has several specific objections to particular interrogatories. Briefly stated, the general objections are:
1.
The requests are premature and unanswerable by CASE until it has completed its CPRT discovery of the Staff and Applicants, which cannot be f_1/ CASE requested an extention from March 16, 1987, to March 20, 1987, in which to file this response; Applicants had no objections.
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x completed at least until: Applicants unequivocally state that all modifications to the CPRT are complete and published (e g, where is Rev. 4 of the CPRTT). 'This objection is applicable to all interrogatories.
2.
The' requests seek work in progress and thus are premature under the
- law of this case. This objection is applicable to all interrogatories.
3.
Insofar as the interrogatories are deemed to relate to issues of plant design or answers are in whole or in part dependent on implementation of any aspect of the CPRT or corrective action plan, they are premature and cannot be answered until the work has been completed and relevant discovery l
thereon by CASE has been completed. This objection is applicable to all
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interrogatories answers to which depend on implementation. We cannot 3
determine-the extent to which answers depend upon implementation until we have-completed discovery on CPRT adequacy, but it appears that answers to Set 5' depend, at least in part, on implementation. This objection also applies to all interrogatories that relate to design.
4.
The requests in. Set 1987-5 seek to require CASE to prepare studies and~ analyses which it would not otherwise prepare or would not prepare until the Board has ruled on the adequacy of the CPRT and until all Results Reports have been published and discovery on them completed.
5.
To the extent the analyses and positions requested are prepared by l
CASE's attorneys or representative, they are trial preparation materials and l'
l not subject to discovery and/or undiscoverable attorney work product. This l
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objection is applicable to all interrogatories at this time but could change if and when CASE retains experts to develop positions on any of the issues
. as to which discovery is sought.
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F 6.
All of the questions seek to know in variou.s forms what CASE' contends and will be answered by CASE when it so contends in its way, not following an outline specified by Applicants. This objection is applicable to all interrogatories.
Briefly stated, the specific objections are:
- 1. Set 1987-5, Questions I-3, III-3, VIII-3, XXI-3, XXV-3, and XXVIII-3 seek irrelevant information, information already known to Applicants, attorney work product and thinking processes.
~2.
Set 1987-5, Questions I-4, III-4, VIII-4, XXI-4, XXV-4, and XXVIII-4 seek irrelevant information, information already known to Applicants, attorney work product and thinking processes.
lp Discussion The essence of the filed discovery is to find out what positions CASE will take, the bases for the positions, the facts relied upon to support the bases, the experts to be used, their factual findings and opinions, and the bases for their conclusions. The principal objection to this discovery is that it is premature. CASE does not and will not know the answer to the questions propounded until it has completed discovery and of course received full answers to discovery, had time to analyze the data received, and reached its conclusions. At this point, CASE has no final position ready for presentation to this Board, since discovery on the CPRT adequacy, Results Reports, and design issues is not nearly complete. CASE's 3
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preliminary positions d/ are not discoverable because they are irrevelant and constitute opinions based on " work in process" which, at least for this case, it has been determined need not be produced because it is disruptive of ongoing work. Transcript of November 12, 1985, Hearing Before the Board, m, pages 24,257-24,258.
See also Pennsylvania Power and Light Co.
(Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613,12 NRC 317, 338-39 (1980).
(" Simply as a matter of fairness, a licensing board may not waive the discovery rules for one side and not the other....")
For CASE, which does not generate internal documents, the disruption of work is even greater because CASE would have to stop its analytical work to produce answers to discovery which would reflect mid-course positions and supporting data which CASE would not otherwise develop.
In addition, where Applicants were relieved of answering "in process" discovery with literally g/ Throughout this proceeding, CASE has taken " positions" in the course of pleadings or oral arguments. Those positions represented CASE's view at that time based on the information that it had and had reviewed.
Those positions were taken in order to protect CASE's ability to adequately pursue the issues and/or to advise Staff, Applicants, or the Board (as a courtesy and voluntarily) of CASE's then current position.
The only " positions" of CASE that could possibly be proper subjects for discovery are final positions upon which CASE will rely in this proceeding and those CASE has not yet developed on the subjects identified by Applicants. We are confident that there will be some generic flaws in the CPRT but we do not yet know which ones or why. We are confident that some of the Results Reports' conclusions will not be sustainable, but we do not yet know which ones or why.
Our confidence that there will be some flaws stems from our own judgments about Applicants' real commitment to do the job right based on their past performance and the initial deficiencies that we have identified in the CPRT.
See Preliminary Review of the Comanche Peak Response Team Program Plan (Dkt. 2), attached to August 15, 1985, letter from Billie Garde to the Hearing Board; CASE's 8/14/85 First Critique of Applicants' Comanche Peak Response Team (CPRT) Plan.
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l hundreds (maybe thousands) of people working on the -development of their case and thus avoided producing documents that actually already existed, CASE has only a small handful of people and diversion of any one of them to answer "in process" discovery would result in diversion of a substantial percentage of CASE's person-power devoted to this case.
It is particularly inappropriate for Applicants to seek the information in these interrogatories in light of their own performance in providing CASE with the data from which answers to the discovery could be provided., While in recent weeks Applicants have begun to produce a significantly increased flow or available data in some areas, this recent " data dump" has, as CASE warned it would, come only after more than a year of hypertechnical objections and wrangling over virtually every discovery request and has strained, well beyond its capacity, CASE's ability to quickly absorb the information. This newly released data relating to prior discovery received
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in the midst of the receipt of answers to CPRT adequacy discovery from Staff and Applicants and preparation for CPRT adequacy depositions is an obvious I
tactical maneuver. CASE cannot legally be made the victim of Applicants' information availability isanipulation. Much of the data now being produced in relation to just-released Results Reports and in response to earlier CASE discovery is old data, dated a year ago or earlier.
See Attachment A to l
CASE's 2/17/87 Motion for Protective Order and Memorandum in Support for examples. Applicants had the capacity to make this available when it was generated and at all times since it was generated.
Its sudden arrival as a prelude to the massive discovery request contained in Set 1987-5 is an all j
too obvious ploy.
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The discovery also assumes that, separate and apart from CASE's attorneys and representative, there is a cadre of CASE staff who, like Applicants' staf f, analyze and develop substantive positions that are then subjected to lawyer review and thus that there is a body of opinion and analysis not prepared for litigation and not prepared by lawyers or rep re sentative. That is largely an incorrect assumption. Virtually all the work on the CPRT, Results Reports, design, and other issues is done by the CASE attorneys and representative solely for the purpose of trial preparation. Experts will be involved, if at all, only at the last stages of the preparation of documents for filing, or preparation of the case for trial or summary disposition (with the recent meeting between CASE's at-this-time non-testifying expert Jack Doyle and Applicants (Stone & Webster) on March 12 through 14, 1987, falling in the category of an unusual f
cooperative effort of Applicants and CASE to discuss some of the complex and t
technical design issues in this case).
No substantive documents are produced by CASE or its consultants that are not draf ts or final versions of filed pleadings or documents sent to the Staff or otherwise made public.
Thus the answer to the pending discovery, if given now, would necessarily require the impermissible divulging by CASE of the mental processes and analyses of its attorneys and representative.
Applicants' discovery is also inherently inappropriate in the context of this proceeding. The reality is that, as CASE develops its position on particular issues, CASE immediately discloses that position either in requests to the Staf f (e.g., Preliminary Review of the Comanche Peak Response Team Program Plan (Dkt. 2), attached to August 15, 1985, letter 6
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1 from Billie Garde to the liearing Board; Preliminary Analysis of Issue
' Specific Action Plan 1.a.4, Agreement Between Drawings and Field Terminations, attached to May 2,1986, letter f rom Billie Garde to Vincent =
Noonan) or pleadings with this Board such as the expected summary disposition motions on CPRT adequacy. CASE has also attempted to cooperate by providing Applicants with on-the-spot preliminary assessments b'y' CASE's at-this-time non-testifying expert, Jack Doyle, of Stone & Webster's design efforts during the March 12 through 14, 1987,. meeting. We have also gone beyond what might have been required in responding to Applicants' Set 1987-7 (see especially pages 7. and 8 of CASE's 3/20/87 Response to Applicants'
. Interrogatories to Intervenor (Set No. 1987-7) and Motion for Protective Order, being sent in this same mail).
But for preparing issues for. trial or for presentation' to the Staff, there is no CASE work on Comanche Peak.
Unlike Applicants, who may prepare analyses both for licensing purposes and for other purposes and who must prepare information to satisfy the Staff and this Board independent of CASE and its contentions, CASE has no information that is not directly tied to the presentation of its case in the various NRC fora. When CASE has a final position, Applicants will be one of the first to know it.
See also Attachment B to CASE's 2/17/87 Motion for Protective Order and Memorandum in Support.
Finally, ss to CASE's general objections, the entirety of Set 1987-5 requests CASE to now conduct analyses and reach conclusions with respect to Results Reports that CASE has no intention or' capacity for fully pursuing at this time.
Our limited resources are now focussed on the CPRT plan 7
adequacy, CPRT and design issues. There is a process in place and a schedule proposed by CASE by which we can expeditiously file motions for summary disposition on Applicants' CPRT Plan as it relates to construction (see transcript of 3/9/87 telephone conference call), assuming Applicants cooperate in ceinpleting their responses to CASE's discovery promptly and work out an agreeable schedule with CASE regarding depositions. We do not expect to turn any significant portion of our attention to the Results Reports, at least until the CPRT plan adequacy issue has been briefed by us and the final Results Reports, particularly VII.C., have been issued. Thus, to answer Set 1987-5 at this time would require CASE to prepare analyses that, at least for now, it woald not be preparing. Applicents are of course not entitled to require CASE to create documents or do analyses merely to answer discovery.
See Applicants' 7/28/86 Responses to CASE's 6/30/86 Interrogatories and Request for Documents and Motion for Protective Order,
- p. 8; and Applicants' 12/12/86 Response to CASE's " Motion to Compel Answers to Sets 3-7," p. 5.
Paragraphs 1 and 2 of our specific objections (p. 3, supra) relate to the two following interrogatories, which are frequently repeated in Set 5:
"3.
Prior to answering this set of Interrogatories, has the Intervenor reviewed the Working File for the results report in question?
"4.
Has the Intervenor propounded any Interrogatories regarding the Results Report in question in order to obtain any information it believes to be necessary so as to make its re. view of the Working File complete?"
Applicants have no independent right to know what documents produced by it CASE has reviewed or what discovery CASE has conducted on Applicant-issued 8
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documents.
Those answers would neither produce admissible evidence not lead to admissible evidence. They seek instead to probe into the manner by which CASE prepares and will try its case.
In addition, Applicants already know the answer. They monitor document requests and reviews made by CASE, requiring CASE to identify each document it seeks to review and keeping track of all copies made.
In fact, Footnote 5, pages 8 and 9, of Applicants' 3/2/87 Motion to Compel Answers to Interrogatories Sets 1987-1,2,3, lists the dates of inspection by CASE of the Working Files for the Results Reports asked about in Applicants' previous interrogatories.
Applicants also know what discovery CASE has filed against it.
This is confirmed by Footnote 6, page 9, of Applicants' 3/2/87 Motion to Compel Answers to Interrogatories Sets 1987-1,2,3.
These two sets of questions (totalling twelve separate questions) are inappropriate for discovery.
CONCLUSION Applicants' discovery in its entirety is objectionable and CASE seeks a protective order with respect to all of Set 1987-5. We cannot at this time identify which, if any, of the specific questions could be answered without running afoul of the limitation on requiring production of attorney work product and mental impressions.
Once the relevant discovery by CASE is complete, and CASE has completed its analysis of the data, CASE will know if independent non-lawyer or non-representative analyses have been done that may be discoverable. At that time, CASE will also, as it has in the past, be stating most of its position and bases in the form of appropriate pleadings.
If such pleadings are not filed, but CASE has completed its analyses. Applicants can at that eine, but not now, file discovery requests 9
which will of course be subject to the normal objections as to relevancy, inappropriate inquiry of experts, attorney work product, and the like.
In addition, to the extent CASE's pleadings disclose positions and bases not previously known to Applicants, we will be generous in allowing Applicants sufficient time to respond to the pleadings, provided the delay is not so long as to prejudice CASE's rights. In short, when the time is ripe.
Applicants will receive the essence of that which it now seeks, to the extent it would ever be discoverable, and CASE should be permanently protected from answering the present requests.
At the appropriate time, Applicants can file new discovery requests to address the questions to which it is entitled to have answers.
On numerous occasions this Board has assured CASE that, once CASE receives data from Applicants, particularly given the delay in producing the data, CASE will have suf ficient time (comparable to the time it would have had if the data had been produced when it first came into existence) to analyze the data, conduct discovery on the data, and develop positions. The Applicants' discovery directly conflicts with that Board assurance, and CASE should not be required to answer any of the discovery.
Respectfully submitted,
[(Mrs.)JuanitaEllis, President CASE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texss 75224 214/946-9446 Filed: March 20, 1987 10
l STATE OF TEXAS )
Juanita Ellis, being duly sworn, deposes and says:
That she is President of CASE (Citizens Association for Sound Energy),
and knows the contents of the foregoing document:
CASE's 3/20/87 Response to Applicants' Interrogatories to Intervenor (Set No.1987-5) and Motion for Protective Order and that the same is true and correct to the best of her knowledge and belief.
0n ~W fk%
(
) Juanita Ellis, Presideht (Citizens Association for Sound Energy)
SWORN T0 and Subscribed before me on this ##
day of MM
, 19 /'7
-- w 2M Notary Public My.Comission Expires: =8//r//f (SEAL)s The original of this page is being mailed under separate cover First Class Mail, to the Secretary, U. S. Nuclear Regulatory Comission. Washington, D. C. 20555, Attention: Chief, Docketing and Service Section.
r C A S E==
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(CITIZENS ASSN. FOR SOUND ENERGY)
March 20, 1987 Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C.
20555
Dear Sir:
Subject:
In the Matter of Application of Texas Utilities Electric Company, et al. for An Operating License for Comanene Peak Steam Electric Station Units #1 and #2 (CPSES)
Docket Nos. 50-445 and 50-446 We are attaching the original signed and notorized affidavit of CASE President Juanita Ellis hereto, which was attached to CASE'S TO APPLICANTS' INTERROGATORIES TO INTERVEN0R (Set No.1987-5) and MOTION FOR PROTECTIVE ORDER.
Respectfully submitted, CASE (Citizens Association for Sound. Energy)
L Mrs.) Juanita Ellis W resident cc:
Service List Attachment s
e
o-DOCKETED USNHC W IMR 23 N1 57 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION FICE OF $EustiuHy BEFORE THE ATOMIC SAFETY AND LICENSING IN'} 4 SEPVICl, uRANCH In the Matter of
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TEXAS UTILITIES ELECTRIC
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Docket Nos. 50-445 COMPANY,e_t,d.
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and 50-446 (Comanche Peak Steam Electric
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Station, Units 1 and 2)
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CERTIFICATE OF SERVICE By my signature below, I hereby certify that true and correct copies of CASE'S RESPONSE TO APPLICA TS' INTERROGATORIES TO INTERVENOR (Set No.1987-5) and MOTION FOR PROTECTIVE ORDER have been sent to the names listed below this 20th day of March
,196,7_,
by: Express Mail where indicated by
- and First Class Mail elsewhere.
Administrative Judge Peter B. Bloch Thomas G. Dignan, Jr., Esq.
U. S. Nuclear Regulatory Commission Ropes & Gray Atomic Safety & Licensing Board 225 Franklin Straat Washington, D. C.
20555 Boston, Massachusetts 02110 Judge Elizabeth B. Johnson Oak Ridge National Laboratory Geary S. Mizuno, Esq.
P. O. Box X, Building 3500 Office of Executive legal Oak Ridge, Tennessee 37830 Director U. S. Nuclear Regulatory Dr. Renneth A. McCollon Commission 1107 West Knapp Street Washington, D. C.
20555 Stillwater, Oklahoma 74075 Dr. Walter H. Jordan Chairman, Atomic Safety and Licensing 881 W. Outer Drive Board Panel Oak Ridge, Tennessee 37830 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 1
o Chairman Renes Hicks,. Esq.
Atomic Safety and Licensing Appeal Assistant Attorney General Board Panel Environmental Protection Division U. S. Nuclear Regulatory Commission Supreme Court Building Washington, D. C.
20555 Austin, Texas 78711 Mr. Robert Martin Anthony Z. Roissan, Esq.
Regional Administrator, Region IV Trial Lawyers for Public Justice U. S. Nuclear Regulatory Commission 2000 P Street, N. W., Suite 611 611 Ryan Plaza Dr., Suite 1000 Washington, D. C.
20036 Arlington, Texas 76011 Mr. Herman Alderman Lanny A. Sinkin Staf f Engineer Christic Institute Advisory Committee for Reactor 1324 North Capitol Street Safeguards (MS H-1016)
Washington, D. C.
20002 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Dr. David H. Boltz 2012 S. Polk Dallas, Texas 75224 Robert A. Wooldridge, Esq.
Worsham, Forsythe, Sampels William Counsil, Vice President
& Wooldridge Texas Utilities Cenerating Company 2001 Bryan Tower Suite 3200 Skyway Tower Dallas, Texas 75201 400 North Olive St., L.B. 81 Dallas, Texas 75201 Robert A. Jablon, Esq.
Spiegel & McDiarmid Docketing and Service Section 1350 New York Avenue, N.W.
(3 copies)
Washington, D. C.
20005-4798 Office of the Secretary U. S. Nuclear Regulatory Commission Ms. Nancy H. Williams Washington, D. C.
20555 Project Manager Cygna Energy Services Ms. Billie P. Carde 101 California Street, Suite 1000 Covernment Accountability Project San Francisco, California Midwest Office 94111-5894 3424 N. Marcos Lane Appleton, Wisconsin 54911 Mark D. Nozette, Counselor at Law Heron, Burchette, Ruckert & Rothwell 1025 Thomas Jefferson Street, N. W.,
Suite 700 Washington, D. C.
20007
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Ju.
(,K g.) Juanita Ellis, President r
WE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 2