ML20206G967

Applicant Response to Case Motions for Protective Order (Interrogatories 1987-5,-6,-7 & -8) & Motion to Compel.* Certificate of Svc Encl.Related Correspondence

ML20206G967
Person / Time
Site:	Comanche Peak
Issue date:	04/10/1987
From:	Gad R ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3078 OL, NUDOCS 8704150210
Download: ML20206G967 (13)

Text

1 3078 mm mmm%w. :an.:

DOCMETED FILED: April 10, $$h UNITED STATES OF AMERICA

~~

NUCLEAR REGULATORY COMMISSION OFTl X ' ' ~~

GCCEEim .

before the ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

)

TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL COMPANY, et al. ) 50-446-OL

)

(Comanche Peak Steam )

Electric Station, )

' Units 1 and 2) )

)

< )

APPLICANTS' RESPONSE TO CASE MOTIONS FOR A PROTECTIVE ORDER (INTERROGATORIES 1987-5, -6,

-7 & -8) AND MOTION TO COMPEL In its responses to each of the interrogatories propounded to it and designated as Sets 1987-5, -6, -7 and -8, CASE has included a motion for a protective order. This Memorandum 1 consolidates the Applicants' response to these motions and the Applicants' motions to compel answers to these sets of interrogatories.

1

{ By agreement of the parties, the time within which the Applicants might respond to all four motions for a protective order was enlarged to April 10, 1987.

8704150210 870410 PDR ADOCK 05000445 G PDR 15a 3

. < , - . , .,_.__m. . ~ . _ _ - - . _ , . _ , , _ , _ _ - , _ _ . . - . . ., ,_.-..._-_._..,.t.... .-.. ~ .._...___ . _ _ , -.

.s Introduction Interrogatory Sets 1987-5 and 1987-8, like Set 1987-3, seek to learn CASE's views on completed Results Reports, and j are governed by the Board's Memorandum of March 30, 1987. The four questions comprising Interrogatory Sets 1987-6 and -7, however, are directed to other matters -- concerning CASE's experts and the elusive so-called "Walsh/Doyle" issues and allegations -- and thus CASE's answers to these questions must be compelled even accepting the Board's March 30 ruling, with i which Applicants respectfully disagree, affording CASE a i

temporary hiatus in responding to Results Report discovery.

i In affording CASE limited relief, the Board reasoned that CASE "is entitled to the mirror image of the protection afforded to Applicants," an apparent allusion to Applicants' j withholding of materials concerning CPRT work that still is in i

process. Memorandum and Order (Applicants' Motion to Compel) l (Mar. 30, 1987) at 4 & n.5.a Prescinding from whether "in

process" is a concept that has any logical application outside i.

of the context, the logic that CASE is entitled to a " mirror I

i 1

j a I Certainly we do not understand allowance of CASE's request to be temporarily relieved of any obligation to answer those l obligations to be based upon any impropriety inherent in the

' technique of roliciting agreement with a statement and, in the absence of agreement, the basis for disagreement. This is a j technique often employed by CASE, never objected to by the '

Applicants, Board.

and on at least one occasion endorsed by the  !

See Memordandum and Order (Motion to Corapel: CASE's '

l Set 12) (3/16/87) at 2. '

4 l  !

l l

l n.. - , . - - - - . .-~~ ~ ~ ~ - --' - '~ ~ ~~~~ ~ ~ ~ ~ ' " ^ ~ ~ ~

I i* image" of that granted Applicant's thus means that CASE must i

answer Sets 1987-6, 7 and other proper interrogatories, just as the Applicants have answered literally hundreds of  !

interrogatories propounded by CASE. Any other result would be fundamentally incompatible with the Commission's insistence j that contested proceedings move expeditiously. E.g.,Pubike Service Company of Indiana, Inc. (Marble Hill Nuclear i

Generating Station, Units 1 and 2), ALAB-374, 5 NRC 417, 422

n.8 (1977).

Set 1987-6 Set 1987-6 is a single interrogatory which asks CASE to provide information concerning its expert witnesses.

, Cognizant that Fed. R. Civ. P. 26(b)(4) places a bound beyond which discovery directed at an adversary's experts may not proceed, the all-inclusive interrogatory was coupled with references to the limiting provisions of law, so that CASE j

might select the information as to which a privilege would be i

j claimed. CASE hasn't done any selection, however; it proposes i

to withhold everything and give nothing.

CASE's current position -- i.e., that the veil concealing

}

information about experts is all-inclusive -- is belied by, i among other things, the fact that CASE has propounded a large

!. number of interrogatories concerning the Applicants' experts.

The Board has allowed a number of these interrogatories over j the Applicants' objection. E.S., Tr. 24793.

[

}

j I

l 1 --- r -- . - - . --

i The purpose of this interrogatory was to extract from CASE t

only the same discovery that the Applicants have been required to give.8 This objection cannot be sustained consistent with 1

the rulings of the Board overruling to any extent objection to i

discovery of experts interposed by the Applicants.

4 i )

i I 8 j CASE advances two further arguments apparently in support of its failure to answer. The first is that the interrogatories need not be answered because they are in part j duplicative of interrogatories served in 1980. By CASE's own l description, CASE Memo (Set 1987-6) at 2, those 1

j interrogatories sought information about CASE's experts in hearings now past. The interrogatory at issue concerns future 1 j hearings. CASE's answer does not clarify whether CASE j

believes it is under a continuing duty to supplement its last of experts pursuant to the 1980 interrogatories, see 10 CFR j

2.740(e)(1). If not, then the only way for the Applicants to discover who CASE's experts are is through an interrogatory like Set 1987-6.

4 The second objection appears to be to the effect that i there is a privilege which allows CASE to shield the identity of so-called "whistichlowers." It is not clear whether these I individuals are claimen to be " experts" within the meaning of the Rules. CASE cryptically states that it " considers them to be the best experts on their allegations," CASE Memo. (Set 1987-6) at 8, an assertion that may mean nothing more than i

that these individuals have the greatest familiarity with the

' facts underlying certain allegations. If, however, any

{

so-called "whistleblowers" truly are intended to be offered as experts at trial by CASE, the Applicants are not aware of any 1

principle of discovery.that would allow the testimony of this i

class of witness to be offered as a surprise. The Rules of

{

Practice, ambush.

like the Federal Rules, do away with trial by ,,

l, i

l 4

1  !

• 1

]o SET ~1987-7 For some time in these proceedings, the expression j "Walsh/Doyle issues," or a variation thereof,* has been used

rather loosely (and universally) to refer to a set of ^

subcontentions assertedly within the scope of the sole' i

remaining contention in these proceedings, Contention 5.s -

h CASE, for example, propounded a set of interrogatories calling i

1

for detailed information on the Applicants' position regarding

) "the Walsh/Doyle issues.no Applicants cannot be certain that i

i this term, which has never been pinned down with precision, is being used by all parties to mean the same thing. Applicants ,

j also are not certain whether whatever issues are in fact

{ subsumed within the phrase "Walsh/Doyle issues" remain subjects in contention. Applicants' goal was to clear up j

4 j those uncertainties. The three questions propounded in this i

1 set of interrogatories to CASE were designed (i) to elicit an

! enumeration of what CASE contends are subsumed within the 1

te rm, (ii) to elicit CASE's position, if any, on the record materials at which it might be said any such issue became a 1

I

] See " CASE's Response to Applicants Interrogatories to i

i Intervenor (Set No. 1987-7) and Motion for Protective Order" at 4.

I

8

! Butsee" Motion Applicants'ResponsetoCASE'sObjectionsto for Establishment of a Hearing Schedule (filed April j 7, 1986) at 3 n.3.

r j e Joint Intervenors 2nd Set of Interrogatories and Request

{

for Documents, Docket No. 50-445-CPA (June 6, 1986). -

i

-s-l J

l

'$ v----,,m,.,.. - .-,,mm,m-,. - mew-,..

.  %,_,.w__ rem _,m_m,,_m_,,,,,,,,-,_.,,,-y-.,,,,,,...m,.-., .w, .,.rm,,_

contested matter, and (iii) to extract from CASE an admission of its acceptance of the' resolution of particular issues based on the large volume of material with which CASE has been me provided (in part in response to CASE's discovery and in part

voluntarily).

In response to the first Interrogatory, CASE has offered a plethora of objections and an answer which indicates that CASE has no clearer idea than do the Applicants what "Walsh/Doyle issues" or "Walsh/Doyle allegations" means. CASE has not, however, clearly stated whether it has withheld any information to that Interrogatory on the basis of the objections it raises. If CASE has not withheld any responsive information, the Applicants do not quarrel with CASE's answer.

With respect to Interrogatory No. 1, therefore, the i

i Applicants' request that the Board require CASE to state whether its answer is complete and, if not complete, to provide a full response.

CASE has declined to provide any substantive response to the remaining two interrogatories of this set. CASE has taken the position that, while it is willing to supply some  !

information gratuitously, it cannot be compelled to answer any interrogatories on this topic. CASE advances four legal arguments on pages 1-2 of its Response in Support.

(Paragraphs 2 and 3 on page 2 are the same argument.) We deal with each seristim.

,__-._..,_...--_..,_,_-,,-.~,.m_,_,_,,,,__y...-. , _ _ _ , , , _ _ , _ _ , , _ . , _ _ , , ,, , _ , _ _ _ , . . . , , , , . , . _ _ _ . . _

i l'

s Ripeness.

. CASE contends-that the interrogatories are premature:

"The requests are premature and unanswerable

_. by CASE until it has completed its CPRT -

discovery of the Staff and Applicants, which cannot be completed at least until Applicants -

unequivocally state that all modification to the CPRT are complete and published. . . ."

Response at 1-2. This objection has no application to 4

interrogatories propounded in Set No. 1987-7. Interrogatory l

No. 1, for example, seeks what only CASE can provide and

) what CASE can provide as fully today as it ever will be:

"Please identify and describe in full detail each and every one of what CASE contends are

'Walsh/Doyle issues' and/or 'Walsh Doyle allegations.'"

I (Emphasis added.) That Interrogatory simply asks CASE to l

4 state how it defines an ambiguous term. How CASE can expect e

to determine the state of its own legal contentions from i

i discovery from the Applicants and the Staff is a proposition so strange as to merit at least some elucidation from CASE.

l There is none.7 How the scope of what CASE contends is 4

within the set of "Walsh/Doyle issues" could even remotely i

be affected by "the Applicants unequivocally stat [ing] that 1

all modifications to the CPRT are complete and published" is i

i I 7 There is discussion commencing at the bottom of page 2 of the Response that suggests that CASE may have misread the interrogatory. The Applicants wish to know what CASE contends as of today -- is in the case.

7-l

)

)

1

j co obscure as to raise doubt about compliance with 10 CFR

$2.708(c).

1 Interrogatory No. 2 proceeds from the premise that CASE may contend that certain issues are contested matters

! previously recognized as being within the scope of j

j Contention 5 by virtue of having previously been raised on the record in these proceedings, and seeks to pin CASE down on the citations upon which it might rely for that argument.

CASE's response is to say that the Applicants can read the i

record as well as CASE can. No amount of reading the record

[

can accomplish the plainly legitimate purpose of pinning CASE down to confinable positions. l Work in Progress.

Defining what one contestant contends are within the scope of the issues previously admitted cannot be " work in progress." Stating whether the adversary admits the issue to have been adequately resolved by disclosed results of corrective actions cannot be " work in process." As the i

Applicants have pointed out, CASE either does not understand i or simply misapplies the "in process" objection.

Applicants' Memorandum in opposition to CASE's Motion for j Protective Order and in Support of Motion to Compel Answers

! (Applicants' Interrogatories, Sets 1987-1,2,3) (Mar. 2, 4

j 1987) at 14-18.

i i

1

~

i

! l i

, - _ _ . - _ _ _ _ - _ _ _ . . _ _ _ _ _ . . _ _ . _ _ . _ _ _ _ . _ - . . _ - __,J_,_.___,_.. _ . _ _ . _ , , .

!. Trial PrSparntion.

CASE's argument premised on 10 CFR 52.740(b)(2) proves too much. By contending that one could never inquire of an adverse party's litigation position prior to hearing (or i

prior to a motion for summary disposition), CASE would gut 4

the fundamental premise of discovery. Discovery is intended j to permit the exploration and confinement of parties'

)

i litigation positions in advance of trial (or dispositive 2

motion). To claim a privilege as to litigation positions has the same logical force as asserting, "I claim the right to come into your proceeding to litigate an important issue, i

but I won't tell you what it is (until I'm ready to surprise you)."

y Were CASE's assertion taken at face value (and it is offered no other way), there would be no interrogatory CASE l

would consent to answer, and none that CASE could propound to which the Applicants could not respond in kind.

The Argument That CASE Sets the Rules for Discovery of CASE.

Finally, CASE simply asserts that it need not and will-not play the game except by its own rules.

"The questions seek to know what CASE 1

contends and will be answered by CASE when it so contends in its way, not following an outline

' specified by Applicants."

Response at 2.

If sustained, this objection would simply j

i eliminate contention interrogatories from contested NRC j

proceedings (and, as a side benefit, relieve the Applicants

. from a massive amount of effort responding to a discovery 1

\

i

-9_ l 1

i I

I i

, _.- .=.. ,,,., - ,.- . ,,-~ -.--,,.- -,.. - - - . ---- - - - .-,- . , _ , - , , . . - , - , , - , --,-~~---.,,-n,n--.. ..--, ---

"following cn outlino specified by [ CASE]"). Given, however, that the Rules of Practice authorize the propounding of " contention" interrogatories, e.g., Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 494 (1983), CASE's plea to dictate the terms on which it will give discovery should fall on deaf ears.

Sets 1987-5 and 1987-8 Like Set No. 1987-3, these questions followed a pattern.  !

Selecting relevant portions of completed CPRT Results Reports, CASE was asked to state its position with respect to the results and, if its position were other than agreement, to disclose its basis (if any) for disagreement.

In its Memorandum and Order (Applicants' Motion to Compel) of March 30, 1987, the Board denied a motion to compel in respect of Set No. 3. The Applicants acknowledge the Board's ruling,8 as well as the fact that the Motion to 8

The Board notes that "[ CASE} won from this Board a decision that the first stage of CASE's approach would be I discovery concerning the adequacy of the CPRT program and the  !

filing of a summary dispositio*-3 motion concerning that program," referring, we believe, to the oral rulings of the i l

Board 1986.

during the Pre-Hearing Conference of August 18 and 19, The Applicants did not understand the Board at that time to have been either requested to or to have acquiesced in conferring upon CASE an exemption from what we believe to be the fundamental obligation imposed upon those who have taken upon themselves the responsibilities of intervention in an NRC operating license proceeding. To the contrary, our understanding was that the Board was willing to consider that the order for litigation would be as CASE had proposed (the 10 -

J

\

Ccmp21 in rospact of Sat No. 5 cnd 8 cannot, consistently I with the ruling on Set No. 3, be allowed. Accordingly,  !

while the Applicants continue to press their motion in order to preserve their claim to its allowance, they will not burden the Board with further argument.

Respectfully submitted, TEXAS UTILITIES ELECTRIC COMPANY For the Owners of CPSES By s attorneys,

\ -)- -

Thomas G. Digdah, Jr.

R. K. Gad III William S. Eggeling Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 notion of a " stand still" on other matters not having been even suggested). Nonetheless, we do acknowledge that the Board has now made its ruling adequately clear. '

i i

COL KC TL C' CERTIFICATE OF SERVICE 'JiNRC I, Robert K. Gad III, hereby certify that on Ap g g j g g made service of the within document by mailing copies thereof, GFFICE 0' :E. U'AHy postage prepaid, to: 00CMEig{.14VICf.

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 I

, 7_. . . , _ . , - . -

e Renea Hicks, Esquire Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel U.S. Nuclear Regulatory Commission P.O. Box 12548, Capitol Station Austin, Texas 78711 Washington, D.C. 20555

- Anthony Roisman, Esquire Mr. Lanny A. Sinkin .

Suite 600 Christic Institute 1401 New York Avenue, N.W. 1324 North Capitol Street .

Washington, D.C. 20005 Washington, D.C. 20002 Dr. Kenneth A. McCollom Mr. Robert D. Martin Administrative Judge Regional Administrator 1107 West Knapp Region IV i

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 I

i ,

R. K. Gad'III

..