ML20207B663
| ML20207B663 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/16/1986 |
| From: | Horin W BISHOP, COOK, PURCELL & REYNOLDS, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Citizens Association for Sound Energy |
| References | |
| CON-#386-986 OL, NUDOCS 8607180147 | |
| Download: ML20207B663 (17) | |
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July 16, 1986.
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NUCLEAR REGULATORY COMMISSION:A
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BEFORE THE ATOMIC SAFETY AND LICENSING \\ BOARD. --A
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In the Matter of
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Docket Nos. 50-445 and
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TEXAS UTILITIES ELECTRIC
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50-446 L
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(Application for (Comanche Peak Steam Electric
)
Operating Licenses)
Station, Units 1 and 2)
)
APPLICANTS' RESPONSE TO CASE'S INTERROGATORIES AND REQUESTS TO PRODUCE (JULY 2, 1986)
AND MOTION FOR PROTECTIVE ORDER I.
INTRODUCTION Pursuant to 10 C.F.R.
SS2.740 and 2.741, Texas Utilities Electric Company, et al., hereby submit their response to-j CASE's " Interrogatories and Request for Documents (July 2, 1986)," filed in the captioned proceeding.
This is not the first time Applicants have been faced with addressing these requests.
Meddie Gregory originally filed these discovery requests, with a single exception,1 on May 15, 1986, in the l
Construction Permit extension proceeding as an attachment to Joint Intervenors' Proposed Discovery Plan.
The status of the requests in that proceeding is the subject of a separate pleading to be filed this date in that docket.
The instant
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Question 2 of the May 15, 1986, set was deleted from the set filed in this proceeding.
G607180147 860716 PDR ADOCK 05000445 g
DS03
~ requests were filed only after the Appeal Board in the construction permit proceeding had ruled that further discovery in that proceeding was to be held in abeyance.
II. APPLICANTS' RESPONSE TO INTERROGATORIES A.
General CASE's filing of these requests constitutes nothing more than utilization of the discovery process in this proceeding to subvert the bounds of discovery in the construction permit extension proceeding.
The Board should not countenance such abuse of the discovery process.
There is no dispute that these requests were originally filed in the construction permit extension proceeding, and CASE simply refiled the same herein following the suspension of discovery in the extension proceeding.
As explained below, there also can be no dispute that at least portions of these requests are patently irrelevant to this docket.
Thus, the only explanation for filing those requests here is that CASE hoped to obtain information in this forum that it appeared it may be precluded from obtaining in the other docket.
CASE's filing of such requests runs afoul of established principles in Federal civil practice, which apply with equal force here, that discovery may not be uced "moroly to cubvert limitations on discovery in another proceeding."
Wilk v.
American Medical Association, 635 F.2d 1295, 1300 (7th Cir.
1980).
Further, where discovery is " designed primarily to
. serve as a vehicle of preparation" for another case, issuance of a protective order limiting such discovery is appropriate.
Beard v. New York Central R.R.
Co.,
20 F.R.D.
607, 610 (D. Ohio 1957).
Applicants urge that the Board admonish CASE to cease o
such abusive practices and grant the protective order sought below with respect to those questions aimed primarily at obtaining information for use in the other proceeding.
For Applicants to expend any resources in addressing such actions by CASE is per se an unnecessary burden which should not be imposed, particularly given the other demands in this proceeding.
Further, Applicants object to so much of CASE's instructions as are inconsistent with the Rules of Practice.
In particular, Applicants note that instruction 8, demanding responses be in accordance with a Board order issued in the construction permit extension proceeding, is patently inconsistent with the Rules of Practice.concerning Licensing Board authority (see 10 C.F.R. 52.721; see also Pacific Gas &
Electric Co._ (Stanislaus Nuclear Project, Unit No. 1), ALAB-400, 5 NRC 1175, 1177-78 (1977).
B.
Response to Specific Questions Interrogatory 1 j
Question:
1.
Identify all documents upon which Applicants intend to rely in the construction permit extension proceeding (Dkt.
No. 50-445-CPA) to demonstrate that there was a " good cause" for the delay in completion of construction of Unit 1.
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objection:
Applicants object to responding to this request.
The request seeks information which is patently irrelevant to issues in the captioned proceeding.
Specifically, CASE seeks only materials related to the reasons for delay in completion of Comanche Peak, Unit 1, as they may pertain to the " good cause" determination at issue exclusively in the CPA case.
By its own terms, therefore, the request seeks information which as a class is related exclusively to the construction permit extension proceeding (Docket No. 50-445-CPA).
As such, the request is objectionable in toto in this proceeding.
Interrogatory 2
-Question:
2.
Identify all audits, reviews, diagnoses, evaluations; consultant reports, in-house audits, or other reports which Applicants received from the beginning of construction to the present assessing, analyzing, commenting on, discussing, or offering an opinion on the plant's construction, procedures, compliance with industry or agency standards, or management style or competence.
(This should include all source documents listed in Appendix B to CASE's Request for Imposition of Fine, suspension of Construction Activities, and Hearing on Application to Renew Construction Permit, 1/31/86.)
Objection:
i Applicants object to responding to this request on several l
I counts.
First, the request materially duplicates the combined
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inquiry of several prior requests in this proceeding.2 As such,
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Material of the type sought to be identified and 2
produced in response to this request was originally j
(Footnote 2 continued on next page) j
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. the request is objectionable ab initio.
Further, general discovery of the nature posed by this request is no longer authorized.
The Board long ago closed general discovery, limiting subsequent discovery to certain discrete areas as to which discovery was deemed warranted on a case-by-case basis.4 Additional wholesale discovery on any and all topics related to i
Comanche Peak construction, as is sought by this request, simply is no longer authorized.
Second, Applicants and CASE previously agreed to, and the Board acquiesced in, certain conditions and procedures for (rootnote 2 continued from previous page) requested in at least the following:
CASE' First Set of Interrogatories and Requests to Produce (July 7, 1980),
Questions 8(internal audits), 9(audits by insurers),
10(outside studies, evaluations or audits); CASE's Second Set (December 1, 1980), Questions 1(IEE Reports),
7(insurers audits), 11(outside studies, evaluations or l
audits); CASE's Sixth Set (January 4, 1982), Questions i
4-6(internal audits); CASE's Seventh Set (February 10, 1982), Questions 8(vendor audits), 10(audits for mino.r owners); CASE's Eighth Set (March 1, 1982), Question 20(study or assessment about work at CPSES); CASE's~
Ninth set (April 5, l'22), Question 10(studies, analyses, assessments, etc. about workmanship at Comanche Peak); and CASE's June 24, 1985, MAC Interrogatories, Ouestion 1(m)(other audits, reports and analyses to be reviewed by prudence auditors).
3/
See Memorandum and order (Scheduling Matters), December III 1983, at 3.
Therein the Board noted that discovery was open, in fact was reopened in that order, only with respect to "any new information filed in response to
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matters previously left open by the decisions of the Board."
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. Discovery subsequent to the December 28, 1983, scheduling order has been authorized principally with respect to Applicants' Plan to respond to the Memorandum and order (Quality Assurance for Design), harassment and intimidation, the MAC Report, " Credibility" issues and the CPRT.
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. supplementation of the now-duplicated (see note 2, supra) requests.5 Allowing CASE to impose this request now would effectively rescind those prior agreements.
Such recision not
'only would infringe on Applicants' discovery rights E*E sg by potentially imposing additional obligations regarding responses and supplementation that the Board previously disposed of, but would violate their right to rely on agreements reached between the parties in a process accepted, indeed encouraged, by the Board to dispose of discovery disputes.
Third, Applicants have already committed to conduct a massive file search to identify documents previously requested but which may not have been produced.
That search includes a 1
review to identify documents such as are reflected in note 2, 3
supra, and which are the principal focus of this request.
This commitment, made in conjunction with our response to the MAC Report discovery, involves a reexamin tion of CASE's prior requests and review of files to identify any documents which had been previously requested but which may not have been produced.
In this light, it is apparent that requiring a 5/
Applicants' and CASE's prior agreements regarding supplementation are set forth in CASE's Nineteenth and Twentieth Sots, filed March 14 and 15, 1984, respectively.
The Board acquiesced in Applicants' and CASE's discussions to reach a mutual agreement regarding supplementation in a February 28, 1984, Conference Call, at which time the Board also suspended its January 31, 1984, Memorandum and order (Continuing obligation to Update Interrrogatories).
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ITTa)pplicants' August 13, 1985, Responses, Question See A i
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separate response to this inquiry, including production of the requested documents, is unnecessary in the first instance and would constitute no less than harassment, imposing a substantial, undue burden on Applicants.
Finally, Applicants already twice responded to this request in their June 16 and July 3, 1986, responses to Meddie Gregory's May 15, 1986, set of requests in the construction permit extension proceeding.
Thus, any further response to this inquiry is unnecessary.
CASE should recognize, however, that the list of documents identified in those responses may, indeed do, include documents which are irrelevant to contention 5.
Applicants make no representation here regarding the relevancy of any one of those documents to this proceeding.
For this and the reasons set forth above, a separate response to this request in this proceeding should not be required.
Interrogatories 3-5 Questions:
3.
When did Applicants first receive notice of the issues identified by the NRC's TRT reports and SSERs, and in what form did that notice come (i.e., NCR, IR, audit report, memorandum, consultant's report, etc.).
4.
For each item identified in Interrogatory 3, identify what response was taken to the problem and by whom.
5.
If the answer to Interrogatory 4 is that no action was
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taken, explain the reason that no action was taken.
If that reason is because Applicants relied on a "second opinion," identify the individuals or organizations who provided that judgment.
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Applicants note that they are nearing completion of their file search effort.
Documents identified in that review will be made available to CASE.
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, objection:
Applicants object to responding to these requests as presently framed.
The issue of "when" a particular issue was
'first raised is irrelevant to the issues in this docket.
Whether a matter was "first" observed at any particular time has no bearing on the principal issues to be resolved with respect to the issuance of an operating license for Comanche Peak.0 In contrast, whether an issue is being addressed and how it is being addressed are questions to be considered in this proceeding.9 CASE already has, or will receive under procedures currently in place, the information relevant to those considerations as they relate to CPRT activities.
However, even were the scope of these requests found to be proper with respect to ongoing CPRT activities, answering them now would not comport with the authorized CPRT discovery process either with respect to the scope or timing of such
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Applicants recognize the Board's determination in the other proceeding regarding the relevance of these requests to CASE's contention therein.
(see Memorandum and order (Motions to compel of June 26, INT 6), July 27, 1986, at 2-3.)
However, the issues in the extension proceeding are not coincident, and indeed differ significantly, with those in this proceeding.
Thus, the disposition of these requests as filed in this docket is, and must remain, separate from consideration of the requests in the construction permit extension proceeding.
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To the extent questions 4 and 5 may relate to these inquiries, the questions are nonetheless premised upon preparation of an answer to question 3.
Thus, answers to questions 4 and 5 are neither required, nor even possible, so long as question 3 remains objectionable.
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_e-discovery.
CASE makes no effort to demonstrate good cause to allow any exception to this already established process.10 Further, the requests as framed, are overly broad.
CASE seeks the requested information with respect to each TRT issue.
However, as this Board has stated, this proceeding will focus on "significant TRT findings that are relevant to Contention 5."11 CASE's requests fail, therefore, in two respects.
- First, they did not limit tne requests to "significant" TRT issues.
The burden in this regard is on CASE.
Applicants are pursuing through the CPRT those TRT issues which they believe warrant review and are necessary to provide the information to license the plant.
Further, the TRT reports and SSER's include numerous issues which are irrelevant to contention 5 but which are within the' scope of matters to which this request'is addressed.12 However, CASE did not limit these requests to Contention 5 issues.
Even if that limitation is presumed to,
i exist sub silentio, as explained above Applicants are not
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The response to CASE's certain argument that information regarding "when" could somehow bear on the root cause and generic implications of any particular issue is that
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the CPRT is already addressing those implications.
Discovery in that regard is, therefore, also subject to the conditions and procedures for the conduct of CPRT discovery.
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Memorandum and Order (Proposal for Governance of this Case), August 29, 1985, at 5, item 5.
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- See, e.g.,
SSER 7, Appendix J, Section 3.2 (Various 1
Testing Allegations); SSER 8, Appendix K, Section 3.2 l
(Nuclear Fuel, Radioactive Material); SSER 11, Appendix 0,
Section 3.2 (Housekeeping).
6 obligated to cull those issues from the hundreds of TRT issues merely to respond to CASE interrogatories.
Such is CASE's burden if it wishes to establish the appropriate bounds for its
' questions.13 Finally, to respond to these questions, as framed, would impose an immense burden on Applicants.
Applicants estimate that to provide thorough answers to these questions, and Question 6, below, would require an effort of approximately seven man-years, involving 30 to 40 people.
(Affidavit of L.
Ed Powell, Attached.)
such a substantial burden far outweighs any postulated benefit that may be gained from answering questions with at most tenuous relevance to the proceeding.
Interrogatory 6 Question:
6.
Identify how each " finding" identified in Interrogatory 3 was integrated into consideration of the subsequent finding: by others.
(For example, how were the findings by the NRC in 1978 and 1979 integrated into Applicants' response to the findings by the Management Analysis Corporation (MAC)?)
Objection:
The premise for this request is information derived from Question 3.
Applicants' objections to that request are fully set forth above.
In this posture, therefore, a response to the i
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Should specific TRT issues be identified which fall within the "significant" and " relevant to Contention 5" boundaries, Applicants may be able to formulate a response regarding some or all of those issues, consistent with existing discovery processes and limitations.
s.
.,,nr
O question is neither required, nor possible, and in any event, as discussed above, would be unduly burdensome.
Independent of the those objections, however, Applicants oppose responding to this question to the extent information and documents on which a response would be premised are available to CASE.
Applicants are not required to undertake independent investigations or otherwise assess data which CASE possesses and from which CASE may also obtain the requested information.
See Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 334 (1980).
Further, the request apparently is directed at obtaining information regarding Applicants' historical treatment of and response to various findings by any one of a number of sources.
Thus, although already determined to be relevant to the construction permit extension docket, the request seeks information which fundamentally is irrelevant to this proceeding.
Further, the only " consideration" of the findings mentioned in question 3 which relates to outstanding issues will occur in the context of the CPRT.
As already noted, the discovery process for the CPRT activities has already been established and responding tc this inquiry here is not contemplated by that process.
j Interrogatory 7 Question:
i 7.
State your position on the following, including all evidence and reasoning upon which you rely with respect to each position:
a.
What delayed completion of construction of Unit 1 past August 1, 1985?
o
. b.
Why did that delay occur?
c.
Who was responsible for that delay?
d.
Do you believe you had a valid business purpose for the delay and, if so, what was it?
e.
Identify each person who participated in the decision-making process that led to the delay and describe in detail their role.
Objection:
Applicants object to responding to this interrogatory.
The request is irrelevant to issues in this proceeding.
As with Interrogatory 1, CASE is seeking information regarding the
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reasons for delay in the completion of Comanche Peak, Unit 1, and whether good cause existed for such delay.
The request is by its own terms designed to obtain information which is related exclusively to the construction permit extension proceeding.
o
. III. MOTION FOR PROTECTIVE ORDER Pursuant to 10 C.F.R.
S 2.740(c), Applicants hereby move for a protective order consistent with and for the reasons set forth in the objections above.
Respectfully submitted, Nicholas S. Reynolds William A.
Horin
)
BISHOP, LIBERMAN, COOK, PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 (202) 857-9800 Robert A. Wooldridge WORSHAM, FORSYTHE, SAMPELS
& WOOLDRIDGE 2001 Bryan Tower, Suite 3200 Dallas, Texas 75201 (214) 979-3000 Roy P.
Lessy, Jr.
MORGAN, LEWIS & BOCKIUS 1800 M Street, N.W.
Washington, D.C.
20036 (202) 872-5000 Thomas G.
Dignan, Jr.
R.K. Gad III William S.
Eggeling ROPES & GRAY 225 Franklin Street i
Boston, Massachusetts 02110 (617) 423-6 00 t
b By
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j William A.
Hdfin July 16, 1986
AFFIDAVIT OF L.
ED POWELL THE STATE OF TEXAS COUNTY OF DALLAS BEFORE ME, the undersigned authority, a Notary Public in and for Dallas County, Texas, on this day personally appeared L.
ED POWELL, who by me being duly sworn upon his oath deposes and maynx I,
L.
Ed Powell, having been duly sworn, hereby make affidavit as follows:
1.
I am the Executive Assistr.nt to the Vice President responsible for Quality Assurance, Fuel Sorvices and Nuclear Licensing for Texas Utilities Generating Company.
Among my duties has been the coordination and direction of available recoureco cmployed by TUEC on the Comanche Peak Project for the purpose of obtaining information and identifying documents responsive to the discovery requests directed at Applicants.
As such, I have personal knowledge of the facts stated herein.
2.
In support of " Applicants' Response to Consolidated Intervenors'
Response
to Motion for Clarification and Opposition to Request for Protective Order", filed this day in Docket 50-445-CPA, I submitted an affidavit reflecting an cotimate of the-offort that would be required to prepare responses to questions 4-7 of Meddie Gregory Set One
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discovery rcquests in that proceeding.
Those questions are identical to questions 3-6 of CASE's July 2,
- 1986,
" Interrogatories and Requests for Documents" in this j
i l
e procaeding.
I currently estimate that the effort on those questions would take approximately seven man-years to complete, and require the efforts of 30 to 40 people.
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L.
ED POWELL SUBSCRIBED AND SWORN TO before me by the said L. ED POWELL on this, the /[of. day of N
1986.
V U
0m Notary Pubid in and for Dallas County, Texas My Commission Expires:
%w4v /.L./f90 1
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This is a telecopy facsimilie.
The oriainal will be sent under separate cover.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
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Docket Nos. 50-445 and TEXAS UTILITIES ELECTRIC
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(Application for (Comanche Peak Steam Electric
)
Operating Licenses)
Station, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response to Interrogatories and Requests to Produce (July 2, 1986) and Motion for Protective Order" in the above-captioned matter were served upon the following persons by deposit in the United States mail, postage prepaid this 16th day of July, 1986.
Peter B.
Bloch, Esq.
Elizabeth B. Johnson Chairman, Atomic Safety Oak Ridge National and Licensing Board Laboratory U.S. Nuclear Regulatory Post Office Box X Commission Building 3500 Washington, D.C.
20555 Oak Ridae, TN 37830 Dr. Kenneth A. McCollom Anthony Z.
Roisman, Esq.
1107 West Knapp Trial Lawyers for Public Stillwater, Oklahoma 74075 Justice 2000 P St.,
N.W.,
Ste. 611 Washington, D.C.
20036 Dr. Walter H. Jordan Ellen Ginsberg, Esq.
881 West Outer Drive U.S. Nuclear Regulatory Oak Ridge, TN 37830 Commission Washington, D.C.
20555 Mr. William L. Clements Stuart A. Treby, Esq.
Docketing and Service Branch Office of Executive Legal U.S. Nuclear Regulatory Director Commission 7735 Old Georgetown Rd.
1717 H St., N.W.
Maryland Ntl. Bank Bldg.
Room 1100 Room 10117 Washington, D.C.
20555 Bethesda, MD 20814 Mrs. Juanita Ellis Lanny A.
Sinkin, Esq.
President, CASE Christic Institute i
1426 South Polk St.
324 North Capitol St.
Dallas, Texas 75224 Washington, D.C.
20002
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, Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Board Panel Licensing Appeal Panel U.S.' Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Ms. Billie P. Garde Ms. Nancy Williams Trial Laywers for Public Cygna Energy Services, Inc.
101 California Street Justice 2000 P St.,
N.W.,
Suite 611 Suite 1000 Washington, D.C.
20036 San Francisco, CA 94111 Mr. Jim Bailey Joseph Gallo, Esquire Texas Municipal Power Agency Isham, Lincoln & Beale P.O. Box 7000 1120 Connecticut Ave.,
N.W.
Bryan, TX 77805 Suite 840 Washington, D.C.
20036 Renea Hicks, Esquire Mr. Robert D. Martin Assistant Attorney General Regional Administrator Environmental Protection Region IV Division U.S. Nuclear Regulatory P.O. Box 12548 Commission Austin, TX 78711 Suite 1000 Arlington, TX 76011 Mr. James E.
Cummins Resident Inspector / Comanche Peak Steam Electric Station c/o U.S. Nuclear Regulatory Commission i
P.O.
Box 38 Glenrose, TX 76043 l W i l l l'a m A. Horin
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cc:
Robert A.
Wooldridge John W. Beck