ML20210E207

Motion to Compel Production of Documents Re Alleged Illegal Drug Use in Response to Applicant 860306 Response to Second Request for Production of Documents.Certificate of Svc Encl. Related Correspondence

ML20210E207
Person / Time
Site:	South Texas
Issue date:	03/21/1986
From:	Sinkin L CHRISTIC INSTITUTE, Citizens Concerned About Nuclear Power, INC.
To:	Atomic Safety and Licensing Board Panel
References
CON-#186-541 OL, NUDOCS 8603270276
Download: ML20210E207 (10)

Text

• b WTED CORRESPOND $ggg, DOCKETED UNITED STATES OF AMERICA 3/21/86 NUCLEAR REGULATORY COMMISSION

• M MAR 26 A10:27 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 0FFICE U: -

00CKLTnc.,,

In the Matter of ( gg,ugm

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HOUSTON LIGHTING AND ( Docket Nos. 50-498 OL POWER COMPANY, ET AL. ) 50-499 OL (South Texas Project, (

Units l'and 2) (

CITIZENS CONCERNED ABOUT NUCLEAR POWER, INC. (CCANP)

MOIlgN IQ QQMEEL ESQDQQIlgN QE QQQQMENIS On March 6, 1986, Applicants filed their Applicants' i

, Response to CCANP's Second Request for Production of Documents

(" Objections"). Applicants refused to produce any of the

' documents requested by CCANP, interposing ubjections to all of CCANP's requests.

In this motion to compel, CCANP responds to Applicants objections, either by answering said objections or by modifying CCANP's instructions or requests'in response to said objections.

Ggngtal QQ1gctiges 4

A. Applicants object to CCANP's entire Second Request i

for Production of Documents on the grounds that the documents requested relate solely to alleged illegal drug use at STNP and the programs in place to' detect such use. Objections at 1.

Applicants persist in mischaracterizing the nature of CCANP'.s inquiry. CCANP is not primarily concerned under Issue F with "the

{ adequacy of HL&P's drug abuse detection and prevention program."

Ege gtgt Applicants' Motion for Summary Disposition on Issue F at 8603270276 860321

12. PDR ADOCK 05000498 G PDR As was made quite clear in CCANP's answers to Applicants Eighth Set of Interrogatories, the information CCANP received was 1

T503 . . -. ..

I

that the drug abuse detection program, whether adequate or inadequate, had'in fact detected the sale and/or use of illegal drugs, that members of the Operations Group were implicated in said sale and/or use, that personnel who might have implicated the Operations Group were not terminated while others in similar circumstances were terminated, and that such selective terminations. were part of a deliberate attempt to protect the Operations Group from exposure. CCANP Answers to Applicants

• Eighth Set of Interrogatories and Requests for Production of Documents dated 2/12/86, Answer 5.

.The . discovery CCANP seeks is, therefore, designed to illuminate the programs in place at STNP for drug detection and how those programs were implemented, got in order to evaluate the adequacy of the programs but rather to be able to pinpoint those instances where the implementation did not follow normal procedures and resulted in selective enforcement such that the ,

Operations Group received special protection.

Applicants also try to use the existence of Commission rule making as a basis for barring litigation of this issue.

Objections at 2. CCANP has already responded.to the irrelevant nature of this argument by Applicants. See CCANP Response to Applicants' Motion for Protective. Order dated 2/18/86, at 4. To illustrate CCANP*s response by analogy, if the Commission were engaged in a generic rule making about the design of the

. emergency core cooling system, that rule making would not i l

foreclose litigation of a contention that Applicants were using unqualified engineers to design their ECCS or that the Applicants l 1

were- using a design for the ECCS which they knew to be l 2

Cf inadequate.

B. Applicants object to Instruction 1 as unduly broad.

Objections at 2. This objection is similar to the objection raised by Applicants in response to a similar instruction in CCANP's Second Set of Interrogatories. Seg CCANP's Second Set of Interrogatories to Applicants dated 2/4/86, Instruction 2; Applicants' Answers and Objections to CCANP Second Set of Interrogatories to Applicants dated February 18, 1986 at 2 - 4.

Applicants anticipate a willingness on CCANP's part to modify this production instruction in a manner similar to the modification of the interrogatory instruction previously agreed to by CCANP. Sge CCANP Motion to Compel dated 2/28/86, at 1; Objections at 4.

CCANP is willing to similarly modify this instruction for the requests for production. The basis for Applicants objection to the modified instruction is that "it is not reasonable to require HL&P to produce documents that are not in its possession or readily available to it" and the speculation that "there may very well be records which are not so available." The Applicants do not state or contend that the records requested by CCANP are 1

not readily available. ,

l CCANP rejects out of hand the Applicants argument that  !

l documents in the hands of its contractors are not discoverable.

As the license holder, Applicants are responsible for all the actions of their contractors. In choosing .to place themselves under the Commission's regulatory system, Applicants chose to accept the burden of this responsibility. They cannot abdicate that responsibility or fail to remain informed by claiming the 3

O' records of their contractors are " unavailable" to them.

C. Applicants object to Instructi on 3 as not authorized by the Commission's rules, unduly vague, and improperly attempting to shorten the time permitted by the rules to reply to requests for admi ssi ons. The records requested by CCANP are the records kept by the Applicants and their contractors. The instruction is an attempt to avoid wasting valuable hearing time establishing the authenticity of documents known to come directly from Applicants. CCANP contends compelling adherence to such an instruction is well within the discretion of the Board and conducive to the expeditious conduct of the hearings process.

D. Applicants object to Instruction 4 as going-beyond the requirements of 10 C.F.R. Section 2.740(e). CCANP accepts Applicants position, except, of ~ course, for- any additional responsibility imposed by the McGuice rule.

E. Applicants object to the entire Request for Production as seeking information not relevant to allegations regarding Plant a

operations personnel. Objections at 5 - 6. As CCANP explained earlier, the discovery pattern pursued by CCANP is designed to provide the background of the Applicents drug control process and its implementation in order to pinpoint instances of favoritism involving the Operations Group. CCANP Motion to Compel dated 2/28/86, at 2-3. All of CCANP's requests for production are part of this overall discovery pattern.

F. Applicants object to Instruction 5 in the mistaken belief  !

, that Instruction 5 requires Applicants to pruduce documents in a particular order. The instruction merely directs that for each l item suppl.i ed in response to a request for production of

documents, the item be identified as to which production request it constitutes a response.

Objectigas tg ladlyidual GG6NE Bggggsts gbiechten tg Bequest f9C Eteductien 1 A. Besides the general objections noted above, Applicants object to Request I as unduly vague. CCANP herein clarifies that request to be those documents which contain the basic description of the various programs for detection of the use and sale of illegal drugs by Project employees, including but not limited to documents describing the programs, the procedures to be followed in such programs, the organi=ational responsibilities for implementation of such programs, and.all revisions of such programs in the time period indicated.

B. Applicants object further to Request 1 as requiring information pertaining to confidential investigative techniques, the disclosure of which would be detrimental to Applicants and contrary to public policy. Objections at 7 - 8. Applicants r- indicate that they would seek a protective order should the Board order such information be provided. As indicated earlier by

CCANP, CCANP views such protective orders as the appropriate response is areas where the Applicants consider the material to be provided as confidential. CCANP's Motion .to Compel dated 2/28/86, at 2. CCANP has no objection to the entering of such a protective order.

QblegtLgg tg Beggest igt Etgduqtign 2 A. In addition to the objections noted above, Applicants object to Request for Production 2 as contrary to public policy and an invasion of privacy. Objections'at 8 - 10. At the same 5

time, Applicants recognize that an appropriate protective order can prevent most of the problems Applicants are worried about.

Id. at 10.

The remaining problem is the Applicants concern that Project personnel will learn that their identities or identities of others had been provided to non-Project entities. Certainly there is no expectation on the Project that such information will not be- provided to the Nuclear Regulatory Commission, if the Commission so requests.

As a party to this proceeding, CCANP is entitled to a hearing on contested safety issues. The right to a hearing without the right to discover the evidence needed to resolve the contested issue would be a hollow right indeed.

Applicants simply cannot place themselves in the position of a public investigatory agency and claim the privileges such agencies currently enjoy.

Applicants chose to conduct their own investigations rather than providing the information to. a law enforcement agency. There is pending an allegation that the Applicants investigation served to obstruct public agency oversight. Applicants cannot now hide the information necessary to resolve this allegation. The resolution of this allegation is more important than the strained- arguments by Applicants regarding some speculative damage to Applicants future investigations.

B. Applicants further object to providing the polygraph results because "no basis has been shown for concluding that CCANP has the. resources to obtain a qualified expert to evaluate such data." Objections at 11..CCANP finds a certain humor to this 6

objection. Applicants want the-Board to find that'as a party to this proceeding CCANP was obligated to review three million pages of records taken in discovery in'the Brown and Root law suit, even records which were not available through the court but'only in a proceeding 1800 miles away to which CCANP was not even a party. Sgg Applicants' Reply to the Portions of CCANP Partial Response to Show Cause Order Which Replied to Applicants' Response to CCANP's Motion to Reopen IV undated, served February 28, 1986, at 1 - 2; Applicants' Response to "Citi= ens Concerned About Nuclear Power, Inc. (CCANP) . Motion to Reopen the Phase II Record: V and For Board Ordered Production of Documents by Applicants" dated March 14, 1986, at 2, note 2; CCANP-Motion to Reopen the Phase III Record: V and for Board Ordered Production of Documents by Applicants served. 2/28/86, at 9; sgg alsg Inspection Reports 85-23/85-20 dated March 7, 1986 Can NRC review of the STP Litigation Review Program which involves 58 people evaluating 5,600 assertions]. Yet Applicants now wish to interpose an objection that CCANP lacks resources in order to avoid production of documents. CCANP is in fact aware of a qualified expert who tnight assist in evaluating these records but has made no attempt to discuss this matter.pending a ruling from the Board on whether CCANP will receive these documents.

Objggliga ig.Bgggggi igt Ecgdygtiga _3 A. In addition to the general objections responded to above, Applicants object to Request for Production 3 as unduly vague.

CCANP is willing to limit said request to all documentation relevant to the decision to conduct each test, the selection of personnel to be tested, the questions to be asked, and the 7

s e

interpretations,. analyses, and other evaluations of.the results of the polygraph tests.

B. Applicants al so object that such information is confidential. Again, CCANP has no objection.to an appropriate protective order.

Qbigstigt tg Eggggst igt Etgdygtigt 3 A/B. In addition-to the general objections responded to above, j Applicants object to Request for Production 4 on the grounds that the information requested is confidential..CCANP has~no objecti'on

.to an appropriate protective order.

C. .In addition to.the confidentiality argument, Applicants object to the request as calling for documentation of investigations "being conducted," a matter which Applicants argue is irrelevant. If' Applicants are willing to stipulate that all investigations resulting from the polygraph tests at issue have been concluded, i.e. that any investigation "being conducted" are not connected to those polygraph tests, then CCANP is willing to drop this request for production.

Qbigqtiges tg Eggggst igt EcgdggtLgg 5 In addition to the general objections responded to above, Applicants object to Request for Production 5 on grounds of confidentiality. CCANP has no objection to an appropriate protective order.

Qbigqtign ig Bggggst igt Ecgdygtign 6 A/C. In addition, to the general objections responded to above, Applicants object to Request for Production of Documents 6 on grounds of confidentiality. CCANP has no objection to an appropriate protective order.

8

O B. Applicants also object.to producing the exit interviews requested by CCANP because they "may not include any information relevant to plant operations or to allegations of drug use by Project employees, and may include other confidential information not relevant to the drug use question CCANP seeks to raise."

CCANP is willing to modify its production request to cover. only those parts of the exit interviews which relate in any way to pl an.t operation or the drug investigations CCANP asked about in Interrogatory 4 of CCANP's Second Set of Interrogatories to Applicants.

For the above and foregoing reasons, CCANP moves the Board to compel Applicants to produce all documents requested in CCANP's Second Request for Production of Documents to Applicants subject to the modifications agreed to herein.

Respectfully submitted,.

4 .

Lanny lan_Sinkin Christic Institute 1324 North Capitol Street Washington, D.C. 20002 (202) 797-8106 Counsel for Intervenor, Citizens Concerned About Nuclear Power, Inc.

Dated: March 21, 1986 Washington, D.C.

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_ _ - _ - - - - , _ _ . _ _ . _ _ _ _ - _. _ . . . ~ .

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ColME TEt In the Matter of ( 09BC

)

HOUSTON LIGHTING AND ( Docket Nos. 50-498 G.,

POWER COMPANY, ET AL. ) 50-499 CQO NAR 26 gg;pg (South Texas Project, (

Units 1 and 2) ( 0FFlcf a 00CHEr g ,,,g CESI1EICBIE OE SEB21Cg BRAE" I hereby certify that copies of CITIZENS CONCERNED ABOUT NUCLEAR POWER, INC. (CCANP) MOTION TO COMPEL PRODUCTION OF DOCUMENTS were served by hand (+) or by depcsit in the U.S. Mail, first class postage paid to the following individuals and entities on the 21st day of March 1986.

• Charles Bechhoefer, Esquire Brian Berwick, Esquire Chairman Asst. Atty. Gen.

Atomic Safety and Licensing Board State of Texas U.S. Nuclear Regulatory Ccmnission Environmtl. Protection Washingtcn, D.C. 20555 P. O. Eon 12545, Capitol Sta.

Austin, Texas 73711

• Cr. James C. Lamb, III Administrative Judge *Oreste Russ Pirfo, Esquire 310 Woodhaven Road Offtce of the Exec. Leg. Dir.

Chapel Hill, North Carolina 27514 U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555

+ Frederick J. Shoa Administrative Judge

• Jack R. Newaan, Esquire U. S. Nuclear Regulatory Commission 1615 L Street, NW, Suite 1000 Washington, D.C. 20555 Washington, C.C. 20006 Melbert Schwarz, Esquire Baker and Botts Mrs. Peggy Euchorn 300 One Shell Plaza Executive Director, C.E.U. Houston, Texas 77002 Route 1, Scn 1634 Brazoria, Tenas 77422

• Atomic Safety and Lic. Bd.

U.S. Nuclear Regulatory Comm.

Diane Curran, Esquire Washington, D.C. 20555 Harmon, Weiss & Jordan 2001 E Street, N.W., Suite 450

• Atomic Safety and Licensing Washington, D.C. .20009 Appeal Eoard U.S. Nuclear Regulatory Comm.

Pat Coy Washington, D.C. 20555 5106 Casa Cro San Antonio, Texas 78233 Docketing and Service Section Office of the Gecretary Ray Goldstein U.S. Nuclear Regulatory Comm.

Gray and Becker Washington, D.C. 20555 901 Vaughn Bldg.

807 Brazos Austin, Texas 78701 Lanny ' inkin rmm-_________