ML20207S613
| ML20207S613 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/18/1987 |
| From: | Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2824 CIV-PEN, EA-84-137, NUDOCS 8703200096 | |
| Download: ML20207S613 (8) | |
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03/18/87 00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 NAR 18 P4 :27 BEFORF THE ADMINISTRATIVE LAW.TUDGE OFFl"IDIhGT %$bi.
v :: mv CCCr BRACH In the Matter of
)
)
GPU NUCLEAR CORPORATION
)
Docket No. 50-320
)
(Civil Penalty)
(Three Mile Island Nuclear Station
)
License No. DPR-73 Unit No. 2)
)
EA 84-137 NRC STAFF MOTION FOR PROTECTIVE ORDER I.
INTRODUCTION The NRC Staff hereby requests, pursuant to la C.F.R. I 2.740(c),
the Presiding Officer to issue a protective order directing the following:
(1) that the discovery sought through "GPU Nuclear Corporation's Secon[1 Set of Interrogatories to the NRC Staff and Fourth Request for Production of Documents" ("Second Interrogatories") not be had; (2) that further interrogatories and document requests by GPUN directed to the NRC Staff be restricted to new matters not covered or which could not reasonably have been covered by prior discovery requests; and (3) that all further discovery requests by GPUN directed to the Staff exprcesly address with particularity (a) how the discovery sought is relevant to a particular issue,
(b) why such discovery is not covered by prior requests, (c) why such discovery is necessary to a proper decision in this proceeding, and (d) why the information sought is not already reasonably available to GPUN. See,10 C.F.R. I 2.123(h)(2)(ii).
As discussed below, the Staff har already provided detailed interrogatory answers, and voluminous documant discovery to GPUN in response to its prior discovery requests.
GPUN appears to be launching, k[ $bo 58
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in its recent requests, including its Second Interrogatories, a wave of discovery seeking information wholly tangential to this proceedir,g on matters as to which the Staff has previously fully responded, and on which GPUN has as good or better access to the information.
GPUN's discovery is aimed at diverting this proceeding from the issues put into controversy by the Commission, to wholly collateral issues not germane to the proceeding.
It is thus necessary that GPUN's discovery be placed under stricter supervision.
II. DISCUSSION GPUN's Second Interrogatories continues a line of discovery aimed at finding out how the Staff conducted its investigation or review of alleFations made by Richard Parks.
This discovery seeks each and every conversation, comment, procedu.e, method, reservation, or intention of the Staff and OI in its consideration of the safety allegations raised by Mr. Parks.
GPUN argued in its first Motion to Compel 1I that it was seeldng the sources of information which the Staff possessed, i.e.,
witnesses interviewed, etc.
As discussed fully in its responses to both GPUN's first motion to compel and GPUN's motion for issuance of subpoenas, 2_/
the Staff has fully supplied all such information, and GPUN's purported frustration at the absence of such 1/
GPU Nuclear Corporation's Motion to Compel NRC Staff to Produce Documents and Request for Oral Argument, dated February 4,1987.
2/
GPU Nuclear Corporation's Motion for Issuance of Subpoenas, dated February 7,1987.
. A information has been dealt with fully in the Staff's responses. 3_/ GPUN's most recent discovery seeks merely to explore further the details of the agency's internal workings in bringing the Parks case to fruition.
Responding to GPUN's Second Interrogatories would require the Staff 3
to launch what would amount to an investigation into how the Parks case was brought, and to mount additional searches of the voluminous files already searched and produced (or identified), requiring scores of man-hours.
In the Staff's view, this is an abuse of the discovery process, and constitutes oppression, annoyance, and undue burden and expense, within the purview of 10 C.F.R. I 2.740(c).
Given the fact i
that the manner in widch the Staff and OI conducted their investigations or reviews is not germane to whether GPUN violated the prohibitions of 10 C.F.R. 5 50.7, a protective order is now necessary.
The Staff has set forth its objections with particularity in its response to GPUN's Second Interrogatories.
The interrogatories and document requests seek detaHed information concerning the circumstances of preparation of four documents, three of which were submitted to the Staff or OI by Mr. Parks or his attorney, and one of which is an OI summary of statements made by Mr. Parks:
(1) a " Draft for Mystery Man Affidavit" (Interrogatories 1-3),
(2) a handwritten document entitled:
"TMI-The Bechtel Connection" (covered by a
sheet
- stating,
" Parks-Disclosure Received from Anonymous Whistleblower" (Interrogatories 4-6),
(3) a document
- entitled,
" Richard D.
Parks 3/
NRC Staff Response in Opposition to Issuance of Subpoenas, and NRC Staff Response to GPU Nuclear Motion to Compel NRC Staff to Produce Documents, both dated March 3,1987.
1
~ _ _ _ -. -.
Overview of the EDS Nuclear Inc. Analysis of the High Pressure Injection Activity During the TMI-2 Accident" (Interrogatory 7), pages 36-37 of Mr. Parks' March 21, 1983 Affidavit (Interrogatories 10-11).
Each of these documents appears to relate, at least in part, to Mr. Parks' allegation in his March 21, 1983 affidavit that George Kunder was the so-called "inystery man" who turned off the High Pressure Injection (HPI) Pumps during the TMI-2 accident.
(The document I
entitled, "TMT-The Bechtel Connection" refers to the mystery man matter briefly, but is otherwise a general diatribe about Bechtel and CPUN mismanagement of the TMI-2 cleanup project and the attendant use of funds).
The remaining two interrogatories (8 and 9) duplicate earlier general requests for information about any NRC investigations into the i
mystery man allegations by Mr. Parks.
GPUN has made no showing that the so-called " mystery man" allegation is relevant to this proceeding.
Even assuming the allegation is relevant, however, the question to be addressed is not how the NRC investigated that allegation, or even whether the NRC agreed with it i
(which it did not), but whether, under 10 C.F.R. 5 50.7 and Section 210 of the Energy Reorganization A ct,
the raising of that allegation t
constitutes " protected activity."
There is no requirement under the law l
l for Mr. Parks to have been correct in his allegation, only that it constitute "information about possible violations of requirements... "
10 C.F.R. I 50.7(a)(1)(f).
As a result, a determination of the validity or invalidity of the allegation is not necessary to establish that the allegation was protected activity.
l~-
Whether relevant or not, the primary sources of information about these matters have been readily available to GPUN.
GPUN conducted its z
own detailed investigation into the validity of Mr. Parks' claim regarding George Kunder starting the very date the allegation was made public. All of Mr. Parks' statements in NRC hands on the mystery man have been turned over to GPUN, and it has affidavits from both the Staff and OI as to the review and findings made by the NRC on this matter.
Detailed accounts of the circumstances of preparation of the subject documents, or of their review by the NRC is not necessary.
The Staff has already provided GPUN with the Staff's position disagreeing with Mr. Parks' technical basis for believing the HPI pumps were turned off by Mr. Kunder, and informed GPUN that OI closed its investigation into the matter without detailed follow-up.
See, Affidavit of Robert Capra, I
attached to letter, dated November 6, 1986, from G. Johnson to J. P.
Hickey; Affidavit of Ronald A. Meeks, attached to NPC Staff Response in Opposition to Issuance of Subnoenas, dated March 3,1987.
Finally, since the source of information on this matter, as well as three of the four documents in question, was Mr. Parks, further information as to the circumstances of the documents' preparation is likely to be available from Mr. Parks.
Mr. Parks will be deposed in this case, and adequate opportunity exists for GPUN to pursue this information if it believes it will assist its case.
GPUN's request that the Staff once again canvas the agency for information on matters fully within the knowledge of GPUN, or readily available to it, amounts to annoyance, oppression and undue burden and i
expense.
The Staff has already fully responded to discovery to it
2 s.
covering the mystery man and there is no need for the discovery GPUN now seeks.
The Staff believes that GPUN's continuing attempt to divert the proceeding from the issues to completely non-germane matters warrants issunnce of a protective order directing not only that responses to GPUN's Second Interrogatories not be had, but that further discovery directed to the Staff be limited to matters as to which GPUN has not or could not reasonably have previously requested.
In addition, no further interrogatory or document discovery against the Staff should be had unless GPUN demonstrates, pursuant to 10 C.F.R. I 2.720(h)(2)(fi) amd 5 2.744, why such discovery is relevant to this proceeding, why the information is not reasonably available from another source, and why it is necessary to a proper decision in this proceeding.
Discovery in this case is now in its eighth month.
The time for broadsided discovery has long passed.
There is every reason to believe that GPUN has had adequate opportunity to conduct any interrogatory and document discovery which it needs.
Further such discovery should be restricted to that demonstrated to be clearly necessary.
III.
CONCLUSION The Staff requests that a Protective Order be issued that:
1.
the discovery sought by the "Second Interrogatories" not be had; 2.
further interrogatory or document discovery be restricted to matters:
1 4'
s s a.
which were rot, or could not reasonably have been, raised in prior GPUN discovery requests; b.
which is demonstrated (with particularity) to be relevant to the issues to be tried in this case; and c.
which are demonstrated under 10 C.F.R. I 2.720(h)(2)(fi) and I 2.744 to be:
1.
necessary to a proper decision in this proceeding, and 11.
not reasonably available from any other source.
Respectfully submitted, V
Y-
'be ge E Jo n,on Counsel mr RC Staff Dated at Bethesda, Maryland this 18th day of March,1987
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f UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 liar 18 P4 :27 BEFORE THE ADMINISTRATIVE LAW JUDGE UfacE:F h m e 00CKEisNG A SERViCf.
In the Matter of
)
)
Docket No.
50-320 GPU NUCLEAR CORPORATION
)
(Civil Penalty)
)
License No. DPR-73 (Three Mile Island Nuclear Station
)
EA 84-137 Unit No. 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF MOTION FOR PROTECTIVE ORDER" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 18th day of March,1987.
- Ivan W. Smith, Esq.
Ernest L. Blake, Jr.
Administrative Law Judge Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing Board 2300 N Street, NW U.S. Nuclear Regulatory Commission Washington, DC 20037 Washington, DC 20555
- Atomic Safety and Licensing Steven L. Hock, Esq.
Appeal Board Thelen, Marrin, Johnson, Bridges U.S. Nuclear Regulatory Commission 2 Embarcadero Center Washington, DC 20555 San Francisco, CA 94111
- Docketing and Service Section Office of the Fecretary U.S. Nuclear Regulatory Commission Washington, DC 20555 MN/
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