ML20206P682
| ML20206P682 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 06/26/1986 |
| From: | Ellis J, Roisman A Citizens Association for Sound Energy, CONSOLIDATED INTERVENORS, GREGORY, M., TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-772, CON-#386-772 CPA, NUDOCS 8607020209 | |
| Download: ML20206P682 (12) | |
Text
Nk N@MN BEFORE THE UNITED STATES r
NUCLEAR REGULATORY [ COMMISSION Before the Atomic Safety and LiceumhaeE oard R
i USNHC In the Matter of d;
"P, ' JWI 30 di:56 TEXAS UTILITIES GENERATING COMPANY,
)
Dkt. Nol' 50-445-CPA et al.
OdFICE cr S Crt 7f.Ry (Comanche Peak Steam Electric 00CHETING ?. Mr.vg*
)
ERAhcii Station, Unit 1)
)
CONSOLIDATED INTERVENORS' RESPONSE TO APPLICANTS' MOTION FOR PROTECTIVE ORDER OF JUNE 17, 1986, AND MOTION TO COMPEL Pursuant to 10 CFR y2.740(f), Consolidated Intervenors move this Board to issue an order compelling Applicants to answer the items in Intervenors' Interrogatories and Request for Documents of May 15, 1986, to which Applicants have objected, and to fully and truthfully respond to those interrogatories to which they have given incomplete and evasive answers, us discussed below.
Interrogatory 1 Applicants' Objection:
Applicants object on the grounds that the question seeks at an early stage to commit them to using only certain evidence at trial.
The question does not attempt to do any such thing; it merely inquires after their present intentions.
There is no implication that they cannot change 1
their minds.
1 It is hard to find any trace of,the issue raised here in footnote 3 of Brennan v. Engineered F.raducts, Inc., 506 F.2d 299, 303 (8th Cir. 1974), cited by Applicani.a in support of their
~
objection.
Even in the body of the case, there is no discussion of whether a party can or should be limited to certain evidence 8607020209 860626 PDR ADOCK 05000445 G
Applicants also object because they read the question as "an interrogatory to counsel as opposed to a party."
The case they cite, Wedding v. Tallant Transfer Co., Inc. 37 F.R.D. 8 (N.D. Ohio 1963), concerned a request for the details of what witnesses and documentary evidence would be used at trial.
Interrogatory 1 does not pose such a detailed inquiry into the trial strategy of the Applicants' attorneys.
It merely inquires after the basis of Applicants' contention that they had good cause for the delay in completing construction of Comanche Peak.
In general, a party is free to inquire into an opposing party's case, and into what their contentions will be at trial.
Responses to such questions can narrow the issues and thus make the trial process more efficient.
Pressley v. Boehlke, 33 F.R.D.
316, 317 (W.D.N.C.
1963); Anderson v.
United Airlines, Inc., 49 F.R.D.
144, 148 (S.D.N.Y. 1969); Hercules v., Exxon Corp., 434 F.Supp. 136, 157 (D. Del. 1977).
In effect, Applicants' objection is premised on the theory that Applicants themselves have no good cause for the delay and their good cause arguments are merely legal constructs
-- the products of legal ingenuity, not truth.
by its response to another party's interrogatories.
Brennan turns on whether the defendant employer should have been allowed to obtain the names and statements of employee witnesses who had requested confidentiality from the government in a case brought pursuant to the Fair Labor Standards Act of 1938.
The court did state that the employer's interest in obtaining the information was lower because the case was at the discovery rather than pretrial stage, but nowhere did it imply that the information should be withheld because the government would otherwise be committed to using only that evidence at trial.
Moreover, on the abbreviated senedule for the present proceeding, this is the pretrial stage.
Applicants' Response:
Applicants' response that they do not know which documents they will use at trial does not answer the question as to what documents they presently intend to rely on to show good cause, an intent that already exists since Applicants have already asserted good cause in their sworn statement seeking the extension of the completion date of the construction permit.
Applicants should answer the question posed to them.
Interrogatory 3 Inasmuch as Applicants have not completed their list of documents, they are out of compliance with the Board's order of June 6, 1986.
Intervenors request that they be required to complete their response immediately, since time is of the essence in this case.
If Applicants need more time to respond to discovery, the universally accepted procedure is to seek an extension of time sufficiently in advance of the deadline, not to unilaterally declare that they will take an unspecified amount of additional time.
i Interrogatories 4-7 Applicants' Objection:
Applicants contend that these questions are an " abuse of discovery rights" because they will require a lot of work and will involve research that Applicants have not yet performed.
Neither objection has merit.
The response to these questions will be extensive because at least 500 issues were identified in the NRC's reports -- in other words, because the Comanche Peak nuclear plant has so many serious problems.
It would be ironic if Applicants were able to evade discovery concerning their notice of these problems on the grounds that the problems were too numerous.
Even if the number of issues involved had not been caused by the Applicants, extensive discovery is to be expected and is appropriate in any case where the issues are numerous and complex.
Pennsylvania Power and Light Co. and Allegheny Electric Cooperative, Inc.
(Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 331 (1980); Lehnert v. Ferris Faculty Ass'n-MEA-NEA, 556 F.Supp. 316, 319 (W.D.Mich. 1983); Bd. of Educ. of Evanston Tp.
- v. Admiral Heating, 104 F.R.D.
23 (N.D.Ill. 1984).
In such cases, parties who raised the objection that discovery was unduly burdensome have generally been denied.
Even where a discovery response is time-consuming or expensive because of the number of questions asked rather than the complexity of the issues, a party must respond as long as the sought after information is relevant.
"The fact that a party will be put to some trouble and expense in the process of answering interrogatories is not alone a sufficient ground for objection."
Federal Deposit Insurance Corp.
- v. Mercantile National Bank of Chicago, 84 F.R.D. 345, 348 (N.D.Ill. 1979),
citing Flood v. Margis 64 F.R.D.
59, 61 (E.D.Wis. 1974).
"An objection to a set of interrogatories on the ground that compliance would be unduly burdensome will only be sustained if the objecting party establishes that the burden upon him outweighs the benefit the information would provide to the party submitting the information."
Id.
In the instant case, the information concerning when Applicants first received notice that they were not properly designing or constructing this plant goes to the heart of the 1
Intervenors' case.
To prevent such discovery would deprive the Intervenors of a fair hearing.
In addition, Applicants will be
. unable to prove their case unless they are able to identify the warnings they received about plant construction and explain their failure to heed those warnings.
Thus the burden will ultimately fall on Applicants as a price they must pay to sustain their position.
Another consideration in deciding whether the burden should be borne by the responding party is the importance of the case, l
not only to the parties but to the public.
Lehnert, supra at 319.
Here the number of issues the NRC raised concerning Comanche Peak shows in itself that the case is too important to allow Applicants to give anything less than a complete description of how they learned of these problems and how they responded to them.
Applicants also argue that they should not have to respond because they would need to do original research that they have no other reason to perform.
But Applicants do have another reason to perform'this research, since they will need the information at trial in order to prove, if they can, that they have good cause for the delay in construction and to rebut Consolidated Intervenors' contenticns.
See 4A Moore's Federal Practice and Procedure $33.20 at 33-106.
Even when a party does not need the information itself, the same considerations apply to doing research as to other assertions that discovery is unduly burdensome:
that is, "the court should weigh the annoyance and expense against the value of the information sought."
Id. at 33-102.
As discussed above, the of issues involved had not been caused by the Applicants, extensive discovery is to be expected and is appropriate in any case where the issues are numerous and complex.
Pennsylvania Power and Light Co. and Allegheny Electric Cooperative, Inc.
(Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 331 (1980); Lehnert v. Ferris Faculty Ass'n-MEA-NEA, 556 F.Supp. 316, 319 (W.D.Mich. 1983); Bd. of Educ. of Evanston 3'.
p
- v. Admiral Heating, 104 F.R.D. 23 (N.D.Ill. 1984).
In such cases, parties who raised the objection that discovery was unduly burdensome have generally been denied.
Even where a discovery response is time-consuming or expensive because of the number of questions asked rather than the complexity of the issues, a party must respond as long as the sought after information is relevant.
"The fact that a party will be put to some trouble and expense in the process of answering interrogatories is not alone a sufficient ground for objection."
Federal Deposit Insurance Corp. v., Mercantile National Bank of Chicago, 84 F.R.D.
345, 348 (N.D.Ill. 1979),
1 citing Flood v. Margis 64 F.R.D.
59, 61 (E.D.Wis. 1974).
"An objection to a set of interrogatories on the ground that compliance would be unduly burdensome will only be sustained if the objecting party establishes that the burden upon him outweighs the benefit the information would provide to the party submitting the information."
Id.
In the instant case, the information concerning when Applicants first received notice that they were not properly designing or constructing this plant goes to the heart of the __
. _ _. ~
Intervenors' case.
To prevent such discovery would deprive the Intervenors of a fair hearing.
In addition, Applicants will be unable to prove their case unless they are able to identify the warnings they received about plant construction and explain their failure to heed those warnings.
Thus the burden will ultimately fall on Applicants as a price they must pay to sustain their position.
Another consideration in deciding whether the burden should be borne by the responding party is the importance of the case, not only to the parties but to the public.
Lehnert, supra at 319.
Here the number of issues the NRC raised concerning Comanche Peak shows in itself that the case is too important to allow Applicants to give anything less than a complete description of how they learned of these problems and how they responded to them.
Applicants also argue that they should not have to respond because they would need to do original research that they have no other reason to perform.
But Applicants do have another reason to perform this research, since they will need the information at trial in order to prove, if they can, that they have good cause for the delay in construction and to rebut Consolidated 1
Intervenors' contentions.
See 4A Moore's Federal Practice and Procedure s33.20 at 33-106.
Even when a party does not need the information itself, the same considerations apply to doing research as to other assertions that discovery is unduly burdensome:
that is, "the court should weigh the annoyance and expense against the value of the information sought."
Id. at 33-102.
As discussed above, the..
information requested in Question 4-7 is crucial to Intervenors' case, and can only be provided by Applicants.
Applicants' Response:
Applicants have offered to make their Non-Conformance Report (NCR) and related files, as well as the CPRT results reports and working files (with significant 2
limitations ),
available to Intervenors on the theory that these files contain the sought after information and the burden of deriving it from them would be the same for Intervenors as for Applicants.
But Interrogatories 4-7 concern not only the existence of problems, but Applicants' knowledge of them, their reasons for responding or not responding, and the level within the company at which the decision was made to continue with
" business as usual" in the face of serious criticism.
Intervenors are not in a position to determine from a file when Applicants received notice of a problem, because such notice may j
have been received orally.
The CPRT files do not show when a problem was first reported, only when it was first identified by the NRC.
Even the NCR files will not necessarily provide such information, since problems were not always accurately reported 2
Applicants offer to provide access to the CPRT working files only in the manner set forth in their 10/22/85 response to Interrogatory / Request No. A-14 of the interrogatories propounded by CASE in the operating license proceeding; that is, they offer to produce the working files only after the ISAPs and DSAPs are completed.
The rationale for following this procedure in the operating license proceeding is that the resulting delay will only hurt the Applicants themselves by postponing the licensing of the plant.
In the instant case, however, any delay increases the danger that the case may become moot, and thus that Intervenors' case will not be heard.
Thus the logic and justification used in the operating licensing proceeding to limit access to so-called "in process" documents does not apply here.
l l
l l
l l
l in them.
Intervenors are even less capable of identifying what response was taken (Interrogatory 5), why it was taken (Interrogatory 6), or how Applicants integrated earlier findings into their consideration of subsequent findings (Interrogatory s
7).
All of these questions relate to the knowledge and state of mind of Applicants, and only Applicants can answer them adequately.
Interrogatory 8 Applicants' response to this question is an exercise in evasion by means of semantics.
In their answer to part (a), they assert that construction was essentially over as of August 1985 and that the delay was caused by the need to identify and correct l
1 deficiencies.
But a plant containing safety deficiencies cannot be considered to be complete.
To put it another way, construction of the plant was incomplete as of August 1985 inasmuch as safety deficiencies remained to be corrected.
The reason for the delay in completing the plant is synonymous with the reason for the safety deficiencies.
Applicants are essentially saying that the delay was not caused by the factors that caused the plant to remain incomplete as of August 1985, but that instead the delay was caused by i
subsequently completing the plant.
Applicants' answers to the rest of Interrogatory 8 build on their response to part (a) and thus are equally evasive.
Their answer to (b) elaborates on the idea that the delay was caused by the identification of deficiencies in the plant and the need to..
correct them, rather than by the creation of those deficiencies.
In their answer to part (c), Applicants say that they cannot answer the question because the CPRT has not completed its work, implying perhaps that whoever completes the work will be responsible for the delay.
In their answer to part (d), they explain that they had a valid business purpose in addressing and correcting the deficiencies in the plant.
Thus they manage not to address the questions as to who was responsible for causing the plant not to be completed and whether they had a valid business purpose for not completing it by August 1985.
The answer to part (e) evades the question in a somewhat different manner.
Even if one accepts the theory that the delay was caused by correcting problems, someone must have made the decision to take the action involved.
In reality the delay resulted from the factors that prevented the timely completion of a properly built plant.
Here, too, a decision making process must have been involved, because some sort of decision making process is inevitably involved in constructing a complex facility such as a nuclear power plant.
The process may be inadequate, but the plant would not have been built the way it was, nor would its problems be identified and corrected, unless someone made a decision to do so.
To say that there was no decision making process is to evade the question of who decided to build the plant in the way it was built and how they decided to do so.
Applicants should be required to address this question, as well as the other parts of Interrogatory 8, in a direct, non-evasive manner.
Alternatively, this Board can accept at face value the -.
answer given by Applicants and preclude them from offering any evidence or argument in this proceeding that goes beyond the answer given.
This would have the effect of requiring the Board to reject the request for extension of the construction permit because Applicants will have failed to produce any evidence of good cause for the delay as required by the Commission's regulations and decisions.
Request for Documents Applicants object to producing documents that refer or relate to the documents identified in the Interrogatories on the grounds that such a request is overbroad.
A request for documents must specify documents that are relevant to the issues in the case, but only a reasonable probability of relevance is required.
Scuderi v. Boston Insurance Co.,
34 F.R.D.
463, 466 (D. Del. 1964).
Here the documents identified in the interrogatories are highly likely to be relevant to the issues concerning deficiencies in the plant and Applicants' notice of these deficiencies.
Documents that refer or relate to the documents identified are also likely to be relevant.
They are likely to contain comments abcut the documents identified, analyses of them, or responses to them, or other material concerning the issues in controversy.
The other requirement placed on requests for documents is that the request describe the documents with reasonable particularity.
The documer's may be described by category rather than individually, but the description must be specific enough that a reasonable person can tell what documents are being..
~
described.
Scuderi, supra; Mitsui & Co.
- v. Puerto Rico Water Resources, 79 F.R.D.
72, 82 (D. Puerto Rico 1978).
The degree of specificity required will vary with the situation.
"There is no litmus paper test for judging the sufficiency of a designation."
Laufman v. Oakley Bldg. & Loan Co.,
72 F.R.D.
116, 122 (S.D. Ohio 1976).
In the present case, the issues are complex and numerous.
Thus the categories of documents requested are inevitably broad.
The request is sufficiently defined that a reasonable person can tell what documents should be included.
Thus, the request is not overbroad.
Respectfully submitted, Al[T Trial Lawye Public Justice 2000 P Street, NW, #611 Washington, D.C.
20036 (202) 463-8600 Counsel for Meddie Gregory f
i ITA ELLIS 26 S.
Polk Dallas, TX 75224 (214) 946-9446 Representative for CASE Law Student:
Ann Hunter Antioch Law School Dated:
June 26, 1986 ___ _
-- J
UNITED STATES NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
TEXAS UTILITIES GENERATING COMPANY,
)
Dkt. Nos. 50-445-CPA et al.
)
(Comanche Peak Steam Electric
)
Station, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of CONSOLIDATED INTERVENORS' RESPONSE TO APPLICANTS' MOTION FOR PROTECTIVE ORDER OF JUNE 17, 1986, AND MOTION TO COMPEL were served today, June 26, 1986, by first class mail, or by hand where indicated by an asterisk, upon the following:
Administrative Judge Peter Bloch U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Walter H. Jordan 881 West Outer Drive Oak Ridge, TN 37830 Dr. Kenneth A. McCollom 1107 West Knapp Stillwater, OK 74075 Slizabeth B. Johnson Oak Ridge National Laboratory P.O. Box X, Building 3500 Oak Ridge, TN 37830 Nicholas Reynolds, Esq.*
Bishop, Liberman, Cook, Purcell & Reynolds 1200 17th Street, NW Washington, D.C.
20036 Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555
Geary S. Mizuno, Esq.
Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Thomas G. Dignan, Jr.*
c/o Ropes & Gray 1001 22nd St.,
NW, #700 Washington, D.C.
20037 Thomas G.
Dignan, Jr.
Ropes & Gray 225 Franklin Street Boston, MA 02110
_.. ^ *
~_ ANTHONY Z IB 1
l l
l I
L