ML20205F357
| ML20205F357 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 03/23/1987 |
| From: | Ellis J Citizens Association for Sound Energy |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20205F360 | List: |
| References | |
| CON-#187-2912 OL, NUDOCS 8703310146 | |
| Download: ML20205F357 (11) | |
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3/2b87 UNITED STATES OF AMERICA NUCLEAR'REGULATORYCOMMJ5SION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOAi0 In the Matter of
'l Docket Nos. $0-44Y E OI l
and 50-446' TEXAS UTILITIES ELECTRIC E
OFFU UF L c,;y-r l
00CxErnGA.dv!ct COMPANY, et al.
06ANCH (Application for an (Comanche Peak Steam Electric Operating License)
Station, Units 1 and 2)
CASE'S RESP 0MSE TO APPLICANTS' INTERROGAT0 RIES TO INTERVENOR '
-(Set No. M87-8) s and MOTION FOR /ROTECTIVE OkMP, CASE (Citizens Association for Sound Energy), Intervenor.herein, hereby files this, its Response to Applicants' 2/24/87 Interrogatories tn Intervenor (Set No.1987-8) and Motion for Protective Order [tj, and requests issuance by this Board of a protective order relieving CASE of any obligation to respond to Applicents' Interrogatories to Intervenor (Set 1987-8).
CASE's objections to Set 1987-8 are similar em our objections to Sets 1 through 3 and 5 (see: CASE's 2/17/87 Motion for Protective Order and Memorandum in Support; and CASE's 3/20/87 R?spuse to Applileantsj Interrogatories to Intervenor (Set No.1987-5) and Motion for Protec.t'iw Order) 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 cbjections to particul.ar interrogatories.
Briefly stated, the generS1 objections ares d / CASE's response to Set 8 was not due until 3/24/87, but we worked Saturday, 3/21/87, so that we could file it today at the same time as our response to Set 7.
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1.
The requents are premature and unanswerable by CASE until it has completed its 'CPP.T' discovery of the Staff and Applicants, which cannot be completed at l'ecst untii Applicants unequivocally state that all modificatione to the CPRT are complete and published (e.g., where is Rev. 4 of the CPRT?). This objection is applicable to all interrogatories.
2.
The requests seek work in progress and thus are premature under the las of this case. This objection is applicable to all interrogatories.
3.
'tnoofar as the interrogatories are deemed to relate to issues of v
plant design or answers are in whole or in part dependent on implementation of any asrect'of the CPRT or corrective action plan, they are premature and cannot be answered until the work has teen completed and relevant discovery thereon by CASE has been completed. This objection is applicable to all interrogatories answers to which depend on implementation. We cannot determine the extent to which answers depend upon implementation until we have completed discovery on CPRT adequacy, but it appears that answers to Set 8 depend, at least in part, on implementation. This objection also applies to all interrogatories that relate to design.
4.
The requests in Set 1987-8 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.
s 5.
To the extent the analyses and positions requested are prepared by 4'
CASE's attorneys or representative, they are trial preparation materials and not subject to discovery and/or undiscoverable attorney work product. This objection is applicable to all interrogatories at this time but could change 2
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li if and when CASE retains experts to develop positions on any of the issues as to which discovery is sought.
6.
All of the questions seek to know in various 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 1987-8, Questions 1-3, IV-3, XI-3, XIV-3, XIX-3, XXII-3, XXVII-3, XXXII-3, and XXXIV-3 seek irrelevant information, information already known to Applicants, attorney work product and thinking processes.
2.
Set 1987-8, Questions I-4, IV-4, XI-4, XIV-4, XIX-4, XXII-4, XXVII-4, XXX11-4', and XXXIV-4 seek irrelevant information, information already known to Applicants, attorney work product and thinking processes.
Discussion The essence of the filed discovery is to find out what positions CASE will tahc, the basen 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. CAST 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 conclusiona. At this point, CASE has no final position ready for presentation to this lloard, since discovery on the CPRT adequacy, Results Reports, and design issues is not nearly complete. CASE's 3
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preliminary positions f2/'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 th'e Board,
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e.g., 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
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supporting' data which CASE would not otherwise develop.
In addition, where Applicants were relieved of answering "in process" discovery with literally I
/2/ 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 Ltd 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.
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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 C:PRT 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 Frogram 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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9 hundreds (maybe thousands) of people working on the oevelopment 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 a
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 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 tactical maneuver. CASE cannot legally be made the victim of Applicants' information availability manipulation. 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 CASE's 2/17/87 Motion for Protective Order and Memorandum in Support for example s.
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 1987-8 (and some previous Sets) is an all too obvious ploy.
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The discovery also assumes that, separate and apart from CASE's
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- attorneys 'and ' representative, there is a cadre of CASE staff who, like Applicants' staff, analyze and develop substantive positions that are-then sub'jected to lawyer review and thus that there is a body of opinion and analysis not prepared for litigation and not prepared by lawyers or representative. -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 cooperative effort of Applicants and CASE to discuss some of the complex and technical' design issues in this case). No substantive documents are produced by CASE or its consultants that are not drafts 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 Staff (e.g., Preliminary Review of the Comanche Peak Response Team Program Plan (Dkt. 2), attached to August 15, 1985, letter 6
m 3;
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.from_ Billie Garde,to'the Hearing' Board; Preliminary Analysis of Issue b
i; Specific Action : Plan 11.a.4, Agreement Between Drawings _ and Field Terminations,' attached to May 2,1986, letter from Billie Garde to Vincent j
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Noonan) or ' pleadings _ with this Board such as the expected summary-i" disposition motions'on_CPRT adequacy.
CASE has also attempted to cooperate by providing Applicants with on-the-spot : preliminary assessments by CASE's f_
fat-this-time non-testifying expert, Jack Doyle, of Stone & Webster's design L
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14, 1987, meeting. We have also gone p
efforts during the March 12 through beyond what might have' been required in responding to Applicants' Set 1987-7
'(see especially pages 5 through 10 and page 14 of CASE's 3/23/87 Response to I.
p Applicants' interrogatories to Intervenor (Set No. 1987-7) and Motion for Protective Order, being sent in this same mail). But'for preparing issues l'
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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-l to satisfy the Staff and this Board independent of CASE and its contentions, j
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 i
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2/17/87 Motion for Protective Order and Memorandum in Support.
l-Finally, as to CASE's general objections, the entirety of Set 1987-8 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
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L this time.
Our limited resources are now focussed on the CPRT plan 1.
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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 g
cooperate in completing their responses to CASE's discovery promptly and work outLan 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.G., have been issued. Thus, to answer Set 1987-8 at this time would require CASE to prepare analyses that, at least for now, it would not be preparing. Applicants 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 8:
"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 review 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
documents. Those answers would neither produce admissible evidence nor 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 eighteen separate questions) are inappropriate for discovery.
v.-
CONCLUSION Applicants' discovery in its entirety is objectionable and CASE seeks a protective order with respect to all of Set 1987-8. 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 time, but not now, file discovery requests f
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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 uit is entitled to have answers.
s 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, 6('Mrs. ) Juanita Ellis, President CASE (Citizens Asspelation for Sound Ene rgy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 l
Filed:
March 23, 1987 l
i 10 I
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 3/24/87 Response to Applicants' Interrogatories to Intervenor 4
(Set No.1987-8) and Motion for Protective Order and that the same is true and correct to the best of her knowledge and belief.
0m '
f its. L >
A g5.) Juanita Ellis, President EASE (Citizens Association for Sound Energy)
, 19 W SWORN T0 and Subscribed before me on thiso7or# day of _
--o A h w -
V ' ' Notary Public My Comission Expires: M 9//9/fp (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, Attention: Chief, Docketing and Service Section.
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