ML20204B744
| ML20204B744 | |
| 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-#187-2887 OL, NUDOCS 8703250141 | |
| Download: ML20204B744 (14) | |
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- J278'7 3/20/87 UNITED STATES OF AMERICA NUCLEAR REGULATORY COPMISSION 8{CMffED BEFORE THE ATOMIC SAFETY AND LICENSING BOARD __
In the Matter of 4 Docket Nos. 50-4 S Land 50-446 TEXAS UTILITIES ELECTRIC OFF!T1r vcr .Jt,r.y COMPANY, et al. 00CXEnu; g ,1994 (Application for an Nd (Comanche Peak Steam Electric Operating License)
Station, tinits 1 and 2)
CASE'S RESPONSE TO APPLICANTS' INTERROGATORIES TO INTERVENOR (Set No. 1987-6) and MOTION FOR PROTECTIVE ORDER CASE (Citizens Association for Sound Energy), Intervenor herein, hereby files this, its Response to Applicants' 2/26/87 Interrogatories to Intervenor (Set No.1987-6) and Motion for Protective Order d/, and requests issuance by this Board of a protective order relieving CASE of any obligation to respond further to Applicants' ' Interrogatories to Intervenor (Set 1987-6).
A single interrogatory constitutes Applicants' Set 1987-6:
Applicants' Interrogatory 1:
"Please identify each and every expert whom the Intervenor has retained or with whom the Intervenor has consulted with respect to the identification and/or correction of any problems in the Comanche Peak Steam Electric Station or the review or assessment of the adequacy or performance of the Applicants or the CPRT in any respect, including, without limiting the generality of the foregoing, the person (s) with whom CASE consulted and/or who assisted CASE in the formulation of its CPRT Interrogatories'- Set No. 12 n /.
11/ CASE requested an extention from March 17, 1987, to March 20, 1987, in which to file this response; Applicants had no objectians.
I B703250141 B70320 PDR Q
ADOCK 05000445 PDR g
"11/ Please note that this interrogatory is not limited in scope.
If and to the extent that CASE believes that this interrogatory requests information that may not properly be sought on discovery, CASE should object to the interrogatory and set forth sufficient information regarding the nature of the expert's retention and functions to permit a ruling to be made. CASE's attention is called to the provisions of 10 C.F.R. sec. 2.740(b)(3), to Fed. R.
Civ. P. 26(b)(4)(B), as interpreted by, e.g. , Public Service Company of New Hampshire (Seabrook Station, Units 1 end 2), LBP-83-17,17 NRC 490 (1983), and to the rulings of the .aard at Tr.
24793-24794 (12/15/86)."
The essence of the filed discovery is to find out the experts which have been and will be used by CASE not only at trial, but even in the preparation of CASE's Interrogatories. Case objects to Applicants' Interrogatory. The identification of such experts is not discoverable because their opinions 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, e.g., pages 24,257-24,258.
CASE also objects to Applicants' Interrogatory because it is duplicative, in part, of previous Interrogatories already asked by Applicants (see Applicants' Interrogatories 6, 7, and 8 of Applicants' 8/1/80 First Set of Interrogatories to CASE and Requests to Produce, which I
requested information regarding testimony and witnesses for upcoming hearing). CASE does not yet know whether we will have expert witnesses who ,
will testify regarding any issues in these proceedings in the future. Once CASE has made its decision in this regard, CASE will advise the Applicants, the NRC Staf f, and the Board in this regard. In short, when the time is I
ripe, Applicants will receive the essence of that which they now seek, to l
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the extent it would ever be discoverable, and CASE should be permanently protected from answering the present requests.
CASE further objects to Applicants' Interrogatory because it is overly broad and seeks information which Applicants already know and/or which they can research for themselves. In Applicants ' Footnote 1 of their Interrogatory, they specifically state that "this interrogatory is not limited in scope." Applicants are well aware of those experts with whom CASE has consulted who have already testified in these proceedings, and CASE should not have to research the record to identify them again. Applicants can do so as easily as CASE (probably more easily because of computerization). To ask CASE to use our already limited resources to do so is itself nothing less than a form of attempted harassment by Applicants.
Case objects to identifying non-witness experts as well as discovery of the content of the advice of any such non-witness experts, and CASE requests a protective order from the Board in accordance with 10 CFR 2.740(c) [2/, and the Federal Rules of Civil Procedure 26(b)(4)(B) and 26(c), as interpreted by, e.g. , Public Service Company of New lbmpshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490 (1983). In Seabrook, regarding Interrogatory C-3, which was similar to Applicants' Interrogatory 1, the ASLB stated, in part:
. . . Rule 26(b)(4) differentiates between experts whom the party expects to call as witnesses and those who have been ret.ained or specially employed by the party in preparation for trial. The R/ CASE notes that we are unable to identify 10 CFR Section 2.740(b)(3),
referenced in Applicants' Footnote 1.
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Notes of Advisory Committee on Rules explain that discovery of expert witnesses is necessary, particularly in a complex case. to narrow the issues and eliminate surprise, but that purpose is not furthered by discovery of non-witness experts.
"We find in this case the same concerns that Rule 26(b)(4) was intended to address. Discovery of [Intervenor] NECNP's non-witness experts will not narrow the issues nor eliminate surprise at trial. Therefore, discovery of the content of the advice of NECNP's non-witness experts is denied.
"NECNP also cites federal decisions in support of its position that the identity of its non-witness experts is also protected by Rule 26(b)(4) and that the policy concerns which prompted these decisions are applicable to this NRC licensing proceeding. NECNP relies on the analysis set forth in Ager v. Jane C. Stormont Hospital and Training Sc'aol for Nurses, 622F.2d496 (10th Cir.
1980) that 'once the identities of retained or specially employed experts are disclosed, the protective provisions of the rule concerning facts known or opinions held by such experts are subverted.' Id. at 503.
"The Board agrees with that analysis. Therefore, discovery of the identity of NECNP's non-witness experts is also denied.
". . . NECNP's request for a protective order with respect to Interrogatory G-3 is granted." (Emphases in the original.)
There is yet another reason which is especially pertinent in these proceedings for CASE's not identifying individuals with whom we have consulted about problems at Comanche Peak. CASE has relied to some extent on all of the whistleblowers who have provided us information, but in many cases unless these individuals have chosen to testify, they have been promised confidentialty by CASE and, in some cases, by the NRC. Often this has been the only basis on which such individuals will talk to CASE or the NRC; at times, this has been the only method available for CASE to get the information to the Board regarding the concerns of some individuals. CASE has also tried to put the individuals in touch with legal counsel to protect their interests an well.
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In regard to those individuals who may have assisted CASE in the preparation of Interrogatories, clearly such individuals would fall under the attorney work product category and at times the attorney / client privilege category, and therefore would not be discoverable. Where such individuals might also qualify as experts, they also would fall under the category of non-testifying experts. In any event, certainly the identification of such individuals is not necessary for Applicants to answer CASE's Interrogatories. Further, such identification would not narrow the issues or eliminate surprise at trial.
Applicants have stated that "this Interrogatory is not limited in scope" (Applicants' Footnote 1). Since Applicants have not limited this Interrogatory in regard to time, it calls for CASE to identify everyone who
- might conceiveably have been considered to be an expert with whom CASE has talked through the years. CASE objects to this Inte-rogatory on the grounds that it is overly broad and is duplicative of previous Interrogatories.
Interrogatories 4 and 5 of Applicants' 8/1/80 First Set of Interrogatories to CASE and Requests to Produce asked:
"4. What are the dates of all meetings or contacts held with the other [two] intervening parties with respect to Contention 57 Please specify the purpose of such meetings or contacts, and the results of such meetings or contacts.
"5. llave you met with or contacted any other individual or group with respect to Contention 57 If so, please identify that individual or group and indicate the reason for those mentings or contacts, the daten of those meetings or contacts and the results of those meetings or contacts."
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CASE's responses were (12/1/80 Supplement to CASE's Annwers to Applicants' First Set of Interrogatories and Requests to Produce, pages 8 and 9):
"4. No records were kept of meeting or contacts with the othtr intervening parties. Most contact with other Intervonors has been with regard to procedural matters and involves disclosure of what CASE considers to be the mental impressions, conclusions, opinions, or legal theories of representatives of the parties, which is precluded from discovery under 10 CFR 2.740(b)(2). -
"We have been in contact with the other Intervenors from time to time regarding some aspects of our contentions, primarily to see if there was the possibility and/or desire of working together on them. However, i was decided that this was neither feasible nor desirable, and we are not working on any of our contentions in a coordinated fashion.
The contacts have not been of a substantive nature in that they are not expected to play a role in the presentation or preparation of CASE's position on its contentions, and CASE's participation in such contacts is not expected to play a role in the presentation or preparation of the position of ACORN or CFUR on their contentions.
"$. No records were kept of meetings or contacts with other individuals or groups with respect to our contentions except as specifically noted elsewhere in this pleading. However, for the past av'en yeere , PA", hae bacn in enntact and had numerous conversations and disconsions, in person, by telephone, and through indirect contactn with numeroun groups and individuals regarding various aspects of the Comanche Peak plant which could be broadly co'nsidered to be 'with respect to these contentions.' (See page 12 of CASE's 9/3/80 Answers to Applicants' Firnt Set of Interrogatorien and Requents to Produce, hereinaftet referred to as CASE's 9/3/80 Answers.)
"We have spoken by telephone or in person with Dr. John W. Cofman, Egan O' Conner, Richard Pollock, Sinter (Dr.)
Rosalie Berte11, Dr. David Nichols, Dr. George W. Crawford, Dr. Jef f Sutherland, Marvin Resnikof f, Richard E. Wehh, Ralph Nader, Dr. James Neinon, Dr. Thomas Kincuno, Dr. Barrie Kitto, Dr. Charles W. Huver, Dr. Irwin D. J. Bross, Dr.
Philip Bierhaum, Carl Hocevar, Vince Taylor, Dr. Barry Commoner, Dr. Thomas Cochran, Charles Komanoff, Robert Pollard , Dr. Carl Johnson, and others we have talked by phone or in pornon to numeroun employcen in various positions with the Texas Utilitten companien. We have been in contact
, with numeroun local, state and national public interest groups.
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"Our contacts with these individuals and groups haVe helped to increase our knowledge, broaden our understanding of issues and the regulatory process, and helped us to interpret the meaning of some of the documents we have obtained through the years; therefore, all of these individuals and groups have, in a very broad sense, contributed to all of CASE's contentions.
"However, insofar as sitting down with us and actively participating in the actual presentation or preparation of CASE's position on specific contentions, they have not (except as specifically indicated elsewhere in this pleading). Indeed, those individuals and groups would probably be hard pressed to know themselves just how they may have contributed to our contentions in the broad sense; certainly CASE would be hard pressed to try to express which individuals or groups said something or supplied some bit of information which later would help CASE to formulate its contentions. At the present time, we do not know whether or not some of them may testify for us; we will, of course, advise all parties as soon as this is determined.
"With regard to past and present workers at the Comanche Peak plant, see response to Question 2.b., page 7, of this pleading." [ Portions of CASE's response to Question 2.b. are quoted later in this pleading.]
It should also be noted that because Applicants have not limited their Interrogatory insofar as a time frame is concerned, it is impossible for CASE to accurately answer Applienate' forarrogatory, becausa nver the many years during which CASE has been concerned about Comanche Peak (prior to and af ter becoming involved in these proceedings), CASE has talked to numerous individuals who might be considered " experts," including many' who formerly worked at Comanche Peak 9ho might fall into the category of " expert." For example, CASE has been in contact and had numerous conversations and discussions, in person, by telephone, and through indirect contacts with numerous groups and individuals regarding various aspects of the Comanche Pesk Plant shich could be broadly considered to be "with respect to the
! identification and/or correction of any problems in the Comanche Peak Steam Electric Station or the review or assessment of the adequacy or performance 7
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+ 1 of the Applicants or the CPRT in any respect." At this point in time, CASE does not even recall the names of many such individuals (such less know how to contact them).
Further, when the occasion has arisen, we have consulted with all of the whistleblowers. They are the source of many of the allegations about problems at Comanche Peak; CASE considers them to be the best experts on their allegations, and CASE consults them when necessary. CASE objects to identifying such indisiduals by name. This is especially important considering the extensive and pervasive harassment and intimidation which CASE has been told (and which we firmly believe) has been practiced at Comanche Peak for many years. CASE's pos,ition remains similar to that expressed in partial response to Interrogatory 2[b] of Applicants' 8/1/80 First Set where we stated (12/1/80 Supplement to CASE's Answers to Applicants' First Set, page 7):
"2. b. . . . CASE has discussed certain construction problems and quality assurance / quality control problems with former and present workers at the Comanche Peak plant, and they have provided us with information which, we believe, will canble (sic) us to obtain through the discovery process adequate information to support their allegations, without their having to be called as witnesses.
"All of these contacts were with the strict understanding and agreement between CASE and those workers that their names would be kept confidential and would be revealed to no one with the NRC or the utility, because said workers are in fear of losing their jobs, being harassed, being physically abused, or even jeopardizing their lives and the lives of their family members. Discussion and public statements by Carl Seyf rit, head of the Region IV NRC Of fice in Arlington, Texas, have made it clear that there is no way the NRC can assure adequate protection of such potential witnesses. CASE therefore feels that we cannot reveal the names of such workers. If we cannot obtain supportive evidence adequate to stand without their 8
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having to testify, we will again approach them to see if they will agree to testifyt if not, we will then have to consider whether or not to drop that portion of our contention which would have to rely solely on their testimony. However, we do not believe this will be necessary.
"We therefore move that the Board grant CASE a protective order regarding disclosure of such workers' names, with the understanding that should there be a change of circumstance such that the workers decide to testify, all parties will be so advised in time to enable the parties to pursue discovery, depositions, etc., without placing them at undue disadvantage.
However, as previously stated, it is not anticipated at this time that any of these workers will have to testify, because we believe we have enough information to be able to document their allegations without their testimony." /2/
It should be noted that Applicants at that time stated that CASE's motion for a protective order to prevent disclosure of the identity of the workers at Comanche Peak who have made allegations to CASE regarding construction of the facility was unnecessary, since " Applicants have not sought at this time through discovery the nares of workers who might have made allegations to CASE regarding construction practices at Comanche Peak" but rather sought "the bases for CASE's claims in Contention 5" (Applicants' 12/16/80 Response to CASE's Motion for a Protective Order) and the Board, based upon Applicants' statements, dismissed CASE's Motion for a Protective Order as being unnecessary (Board's 2/6/81 Order (Dismissal of CASE's Motion for Protective Order)). Applicants' position does not appear to be the same in the instant case, and to the extent that Applicants now seek the names of any such whistleblowers, CASE now moves for a protective order f rom the Board.
/j/ As the Board and all parties are aware, CASE subsequently did have witnesses who came forward and testified and care was taken to protect Applicants' due process rights.
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Further, to the extent the analyses and positio.ns identified in the Interrogatory are prepared by CASE's attorneys or representative, or individuals working with CASE's attorneys or representative, they are trial preparation materials and not subject to discovery and/or are undiscoverable attorncy work product. This could change if and when CASE retains experts which we expect to call as witnesses for trial to develop positions on any of the issues identified in the Interrogatory, but at this time no decision has been made as to whether or not CASE will have such witnesses, nor has the decision been made as to who such witnesses might be. We will, of course, advise the Board and parties at the appropriate time af ter this decisionhasbeenmadef4/.
Applicants' discovery in its entirety is objectionable and CASE seeks a protective order with respect to all of Set 1987-6.
Respectfully submitted, (M(s.) Juanita Ettis, President t'ASE (Citizens Association for Sound Energy) 1426 8. Polk Dallas, Texas 75224 214/946-9446 Filedt March 20, 1987
/4/ This includes specifically CASE's at-this-time non-testifying expert Jack Doyle, who participated in a March 12 through 14, 1987, meeting with Applicants (Stone & Webster). See additional discussion in CASE's 3/20/87 Response to Applicants' Interrogatories to Intervennr (Set No.
1987-7) and Hotion for Protective Order.
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o STATE OF TEXAS )
Juanita Ellis, being duly sworn, deposes and says:
That she is President of CASE (Citizens Association for Scund Energy),
and knows the contents of the foregoing document:
CASE's 3/20/87 Response to Applicants' Interrogatories to Intervenor (Set No.1987-6) and Motion for Protective Order l
and that the sarr.e is true and correct to the best of her knowledge and belief.
0mA&, f/1, D
.) Juanita Ellis, President SE (Citizens Association for Sound Energy)
SWORN T0 and Subscribed before me on thive* day of M W , 19/*p-1 nML --
~ ~
Notary Public My Comission Expires: c>Vv/w (SEAL.)
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, i Attention: Chief Docketing and Service Section. l l
[
CASE (CITIZENS ASSN. FOR SOUND ENERGY)
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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 Comancne 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 APPLICAf4TS' INTERROGATORIES T0 INTERVENOR (Set No. 1987-6) and MOTION FOR PROTECTIVE ORDER.
Respectfully submitted, CASE (Citizens Association for Sound Energy)
W%k {ff&
(Mrs.) Juanita Ellis
[ President cc: Scryice List Attachment
c 00LHETED 0%kC
'87 MR 23 Pl2:00 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFriq c; itSm.,;
DOCKf.1stra . ;,y,.,a
- (;
,BEFORE Tile ATOMIC SAFETY AND LICENSING ROARD flRANC4 In the Matter of )(
}{
TEXAS UTILITIES ELECTRIC )( Docket Nos. 50-445 COMPANY, et al. }( and 50-446 (Comanche PUkl team Electric }{
Station, Units I and 2) }{
CERTIFICATE OF SERVICE By my signature below, I hereby certify that true and correct copies of CASE'S RESPONSE TO APPLICANTS' INTERROGATORIES TO INTERVENOR
___ (Set No.1987-6) and MOTION FOR PROTECTIVE ORDER have been sent to the names listed below this 20th _ day of March 1987,,,
by: Express Hall where indicated by
- and First Class Mail elsewhero.
Administrative Judge Peter B. Bloch Thoman C. Dignan, Jr. , Esq.
U. S. Nuclear Regulatory Commission Ropes & Cray Atomic Safety & Licensing Board 225 Franklin Street Washington, D. C. 20555 Boston, Massachusetts 02110 Judge Elizabeth B. Johnson Oak Ridge National Laboratory Geary S. Hizuno, Esq.
P. O. Box X, Building 3500 Office of Executive Legal Oak Ridge, Tennessee 37830 Director U. S. Nuclear Regulatory Dr. Kenneth A. McCollom Commission 1107 West Knapp Street Washington, D. C. 20555 Stillwater, Oklahoma 74075 ivr. Walter 11. Jordan Chairman, Atomic Saf ety and Licensing 881 W. Outer Drive Board Panel Oak Ridge,1ennessee 37830 U. S. Nuclear kegulatory Commission Washington, D. C. 20$35 1
Chairman Renea Hicks ,. Esq.
Atomic Safety and Licensing Appeal Assistant
- Attorney General Board Panel Environmental Protection Divistou 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 F Street, N. W. , Suite 611 611 Ryan Plasa 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. Bolts 2012 5. Polk Dallas , Texas 75224 Robert A. Wooldridge, Esq. ,
Worsham, Forsythe, Sampels William Counst1, Vice President & Wooldridge Texas Utilities Generating 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 Government Accountability Project San Francisco, California Midwest Of fice 94111-5894 3424 N. Marcos Lane Appleton, Wisconsin 54911 Mark D. Nosette, Counnelor at Law Heron, Burchette, Ruckert & Rothwell 1025 Thomas Jefferson Street, N. W.,
Suite 700 Washington, D. C. 20007 h 2 -u br*: , (/2? *
/hre.) Juanita Ellis, President T45R (Citizens Association for Sound Energy) L I426 S. Polk '
Dallas, Texas 76224 ,
214/946-9446 !
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