ML20205L891

Memorandum & Order,Memorandum (Applicant Motion to Compel).* Applicant 870302 Memorandum in Opposition to Case Motion for Protective Order & in Support of Motion to Compel Answers Denied.Served on 870331

ML20205L891
Person / Time
Site:	Comanche Peak
Issue date:	03/30/1987
From:	Bloch P Atomic Safety and Licensing Board Panel
To:	TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
References
CON-#287-2937 79-430-06-OL, 79-430-6-OL, OL, NUDOCS 8704020217
Download: ML20205L891 (6)

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CCCHE ED WC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 8efore Administrative Judges: 87 liar 31 P1.54 Peter B. Bloch, Chairman 0FFn f ,,,y Dr. Kenneth A. McCollom "UCM in - W Or. Walter H. Jordan SEVED MAR 311987 In the Matter of Docket Nos. 50-445-0L 50-446-0L TEXAS UTILITIES ELECTRIC COMPANY, et al.)

-) ASLBP No. 79-430-06 OL (Comanche Peak Steam Electric Station, )

Units I and 2) )

) March 30, 1987 MEMORANDUM AND ORDER s

MEMORANDUM (Applicants' Motion to Compel)

The filings on the current motion have achieved a new level of entertainment and literary style and deserve connendation on that account. Texas Utilities Electric Company, et al. (Applicants) note that CASE [ Citizen's Association for Sound Energy] apparently would have discovery be a one-way street; litigation on the merits an ever-receding horizon. The Motion for Protective Order is compatible not with the Rules of Practice but with a theory of litigation by attrition; wear down Applicants, divert the Applicants' resources and avoid a head-on battle on the merits at all costs. . . . For this reason, answers to Sets 1-3 must be compelled and, where CASE has not yet formulated its position on the ma doso.}tersatissue,areasonabledeadlinemustbesetforCASEto 1

Applicants' Memorandum in Opposition to CASE's Motion for Protective Order and in Support of Motion to Compel Answers (FootnoteContinued) 0704020217 070330 fi DR ADOCKOS00pgD pD

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Timing of Discovery: 2 For its part, CASE notes that Applicants join issue with CASE's objections principally on whether postponing answering the legitimate questions is unjustified delay. . . . Frankly we are a little puzzled by Applicants' mo tion. It appears to be little more than intervenor-bashing, using the tired cliche of delay. Applicants surely know that CASE will tell them what it finds objectionable about Comanche Peak and why. All this paper [just] to ask CASE the questions and seek 30 compel answers is " full of sound and fury signifying nothing."

I. Background The parties have remarkably dissimilar views of the current stage of our proceedings. CASE's view emphasizes that Applicants have been consuming enormous amounts of time to respond to charges brought forth by CASE and the Staff in this litigation; and CASE stresses that Applicants have been repeatedly missing their own deadlines for completing work, thereby causing further delay.3 Applicants focus their attention at the present moment of time, explaining the reasons why it is important for them to obtain the information they request and how granting their request would narrow issues for trial and serve the cause of expedition. 4 (FootnoteContinued) 2, (Applicants' Interrogatories, Sets 1987-1,2,3), March 1987 (Applicants' Memorandum), at 2.

2 CASE Opposition to Applicants' Motion to Compel, March 17, 1987 (CASE Opposition), at 8-9, quoting Shakespeare, MacBeth, Act V, Scene 5, Line 19.

3 CASE Opposition at 2-4.

4 Applicants' Memorandum at 4-5.

I Timing of Discovery: 3 In viewing this discovery controversy, and without prejudice with respect to findings of fact we may subsequently be called on to make, we note that Applicants' CPRT program is an enormous effort to compensate for past weaknesses in design and construction QA/QC, What we have seen encourages us to believe that serious efforts are being made to identify individual problems, to learn about the root cause of those problems and to correct those problems. In the course of this work, Applicants have been willing to forego deadlines that they have set for themselves. The failure to meet those deadlines appears to be a mark of the seriousness of Applicants in correcting deficiencies.

At the same time, CASE has been given the enormous task of familiar-izing itself with the outlines of a research effort whose cost is hundreds of millions of dollars. CASE asked that it be permitted to begin that task by examining the overall effectiveness of the design of the CPRT program. It stated that it did not believe that it had the resources to contest effectively all the technical details involved in this massive effort. It won from this Board a decision that the first stage of CASE's approach would be discovery concerning the adequacy of the CPRT program and the filing of a sumary disposition motion concern-ing that program. We agreed with CASE that it could defer taking a position on individual results reports until af ter it had filed its motion for summary disposition.

Simultaneously, Applicants sought and obtained from this Board a ruling that it need not respond to questions about Results Reports until it had completed work on each of the reports. Although there is a

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Timing of Discovery: 4 formal rationale that has been asserted by Applicants for this result, the practical result of this ruling is that Applicants are not bothered by discovery on individual results reports until they have concluded their work on each report. This prevents an unnecessary discovery burden in the course of completing reports.

II. Ruling We agree with CASE that it need not respond to Applicants interrogatories concerning its litigation position at this time. It is entitled to the mirror image of the protection afforded to Applicants, for the purpose of serving the twin goals of enhancing the quality of the ultimate analysis and bringing this case to trial more quickly.5 We anticipate that CASE will file its motion for summary disposition in May, subject to delays that may be approved by this Board for cause.0 Subsequently, we anticipate adopting a fair schedule that will not prejudice CASE nor cause undue delay. The schedule would require CASE to disclose its position on completed CPRT or design review 5

Applicants' Memorandum at 16, citing Chemical Manufacturers Ass'n

v. Consumer Products Safety Commission, 600 F. Supp. 114, 117-18 W.T.C. 1984); In re LTV Securities Litigation, 89 F.R.D. 595, 618-19 (N.D. Tex. 1981).

6 Our ruling is without prejudice to the right of Applicants to refile Sets 1 and 2 if they consider it appropriate in light of the motion for sumary disposition that is expected to be filed.

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Timing of Discovery: 5  ;

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work and would require Applicants to disclose their position concerning the scope of the breakdown in QA/QC for design and construction. One possible vehicle for that procedure would be to require the parties to file contentions, with bases, concerning their position on the remaining issues. Another vehicle would be the kind of discovery exemplified by Applicants' Set 3.  ;

It is our understanding that Applicants are about to file a ,

memorandum concerning scheduling. When they do so, the stage will be set for the Board to adopt a management plan that will meet the legitimate needs of all parties.'

Applicants Motion to Compel Answers to Applicants' Interrogatories, i Sets 1987-1,2,3 shall be denied.

i 0R0ER i

i For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 30th day of March 1987 ,

ORDERED:

That Applicants March 2, 1987 Memorandum in Opposition to CASE's  !

Motion for Protective Order and in Support of Motion to compel Answers l t

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! Timing of Discovery: 6 s (Applicants' Interrogatories, Sets 1981-1,2,3) is denied.

FOR THE AT SAFETY AND LICENSING BOARD t

Futer B. Blochi Chairman

, ADMINISTRATIVE JUDGE i

Bethesda, Maryland f

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