ML20206S750

Applicant Motion to Compel (Interrogatories Set 1987-4) or in Alternative,To Strike Affidavit of J Doyle.* Case Must State Whether It Disavows Doyle Affidavit within Meaning of 10CFR2.708(c).W/Certificate of Svc

ML20206S750
Person / Time
Site:	Comanche Peak
Issue date:	04/14/1987
From:	Eggeling W ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3159 OL, NUDOCS 8704230046
Download: ML20206S750 (8)

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, DOCKETED UStiRC s7 AM120 R2:07 FILED: Apri{p A4, c1987 p iAF 00CKE N A 9 M UNITED STATES OF AMERICA Fah NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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

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(Comanche Peak Steam )

Electric Station, )

Units 1 and 2) )

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APPLICANTS' MOTION TO COMPEL (INTERROGATORIES SET 1987-4)

OR , IN THE ALTERNATIVE, TO STRIKE AFFIDAVIT OF JACK DOYLE BACKGROUND OF THIS MOTION On December 1, 1986, Applicants filed their Response to Board Concerns. On December 30, 1986, there was filed a document titled CASE's Partial Response to Applicants' 12/1/86 Response to Board Concerns (the " CASE Partial Response"). The CASE Partial Response was in two parts: a two-page cover memo signed by Juanita Ellis, as legal representative of CASE, and a 55-page affidvit sworn to by Jack Doyle.

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Interrogatory set 1987-4 focuses on various assertions in Mr. Doyle's affidavit and, as CASE aptly summarizes, attempts "to find out what positions CASE will take, the bases 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 conclusion with respect to various assertions contained in Mr. Doyle's affidavit." CASE Memo (Set 1987-4) at 7.

CASE declined to provide substantive answers to any of the interrogatories propounded and instead moved for a protective order with respect to Set 1987-4 in its entirety.

ARGUMENT CASE's argument in support of its Motion to Compel relies on the same arguments contained in CASE's Motion for a Protective Order with respect to Interrogatory Sets 1987-1,2,3, to the effect that CASE is entitled to a stay from responding to discovery. The Applicants recognize that the Board has granted case a limited discovery stay with respect to interrogatories that ask CASE for its views on i

conclusions contained in completed CPRT Results Reports.

Interrogatory Set 1987-4 presents a much different kind of issue, however, and requires a different ruling upon CASE's request for a protective order.

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F' When propounding interrogatories relating to completed Results Reports, the Applicnts are asking CASE to evaluate work performed by the CPRT. When propounding interrogatories relating to positions taken by CASE in a pleading CASE has filed with the Board, on the other hand, the Applicants are only asking follow-up questions as a party is entitled to ask of any statement made by an adversary. Exempting CASE from answering Set 1987-4 would thus be an unwarranted extension of the logic of the Board's March 30, 1987 Order and would be funadmentally unfair to the Applicants.

CASE chose to submit its views on the Applicants' pleading. CASE thus has directly placed in issue its views about Applicants' Response to Board concerns, and CASE may not now be allowed to slam the door shut by suggesting that it wishes instead to concentrate on other aspects of this litigation. The time for CASE to decline to expend energy on the matters contained in the Doyle affidavit was before CASE submitted its Partial Response. CASE made the election.

CASE's further argument is to the effect that Mr.

Doyle's affidavit may not be attributed to CASE and therefore the Applicants may not ask CASE to state whether it agrees with Mr. Doyle and, if so, why. The first portion 3-

O of CASE's argument mistates the law; the second is a non-sequitur.

The pleading at issue, CASE's Partial Response, was signed by CASE, not Mr. Doyle. He could not have signed the pleading, for Mr. Doyle is not a party, has not entered (and is not qualified to enter) an appearance on behalf of any party and, therefore can speak to the Board only when his views as a witness are offered by one of the parties.

CASE's Partial Response is, as its title makes clear, CASE's filing. If that document has any business being before the Board, it is only because it expresses in some fashion CASE's views on Applicants' Response to Board Concerns.

Thus, for example, the Board expressly declined to make a document received from a person who was not a party a part of the record. Memorandum (Letter from Henry A. Stiner (Jan. 22, 1986)).

CASE's attempt retroactively to disavow Mr. Doyle's affidavit is also directly contrary to the mandates of the Rules of Practice. Section 2.708(c) of 10 CFR provides:

"The signature of a person signing in a representative capacity is a representation that the document has been subscribed in the capacity specified with full authority, that he has read it and knows the contents, that to the best of his knowledge, information, and belief the statements made in it are true, and that it is not interposed for delay. If a document is not signed, or is signed with intent to defeat the purpose of this section, it may be stricken.

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6 CASE's submission of Mr. Doyle's 55-page affidavit annexed to its two-page response thus plainly constituted CASE's sponsorship of the views Mr. Doyle expressed in that affidavit. Further, when CASE offered Mr. Doyle's affidavit it did so in terms clearly conveying that CASE agreed with what Mr. Doyle said. Thus, the Partial Response noted that

" CASE could comment on each and every one of Applicants' statements . . . ," further noted that "[t]his pleading is limited to some specific points and comments which CASE witness Jack Doyle . . . believed might be helpful to the Board . . . ," and revealed CASE's involvement in the preparation of the affidavit in stating that "[wle have attempted to include sufficient quotations. . . .from Applicants' pleading to allow the Board to easily follow" the points in that affidavit. Partial Response at 1 (emphasis added).

CASE conceivably could choose now to disavow Mr. Doyle's assertions. The consequence, however, is that Mr. Doyle's affidavit and CASE's Partial Response (which contains nothing of substance apart from the affidavit it incorporates by reference) must be stricken, in accordance with the last sentence of 10 CFR 52.708(c).

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6 CONCLUSION For the foregoing reasons, CASE must be required to state whether it disavows Mr. Doyle's affidavit within the meaning of 10 CFR $2.708(c) and, if so, that affidavit must be stricken. If it does not do so, CASE must be compelled to answer Interrogatory Set 1987-4.

TEXAS UTILITIES ELECTRIC CO.

For the Owners of CPSES By its attorne s, g ~,

Thomas G. DignfG Jrf R. K. Gad III VI/ f William S. Eggeling Kathryn A. Selleck ROPES & GRAY 225 Franklin Street ,

Boston, Massachusetts 02110 (617) 423-6100 Dated: April 14, 1987 CERTIFICATE OF SERVICE I, William S. Eggeling, hereby certify that on April 14, 1987, I made service of the within document by mailing copies thereof, postage prepaid, to:

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

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Renea Hicks, Esquire Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protectior Division Board Panel P.O. Box 12548, Capitol Station U.S. Nuclear Regulatory Commission 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 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 O

William S. Egge ng