ML20214W137
| ML20214W137 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 12/05/1986 |
| From: | Mizuno G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1811 OL, NUDOCS 8612100094 | |
| Download: ML20214W137 (10) | |
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i 12/05/86 DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'86 DEC -8 P2 :59 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD CFF'r : ~
GCCiG i.
In the Matter of
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. i, y,
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TEXAS UTILITIES ELECTRIC
)
Docket Nos. 50-445 O '
COMPANY, et _al.
)
50-446-8 D
)
(Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
NRC STAFF MOTION FOR PROTECTIVE ORDER I.
INTRODUCTION
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Pursuant to 10 C.F.R. I 2.740(c), the NRC Staff (" Staff") requests that a protective order be issued in favor of the Staff, so that it need not answer certain interrogatories (including several " interrogatories" which in essence are requests for production of documents) in CASE's "CPRT Discovery-Staff", which were filed on September 22, 1986.
II.
BACKGROUND On September 22, 1986, CASE filed a " Motion for Discovery of the Staff (CPRT)" together with their "CPRT Discovery-Staff," consisting of 35 " interrogatories" to the Staff. On October 21, 1986, the Staff flied its
" Response to CASE's Motion for Discovery of the Staff (CPRT)"
(" Response").
In that Response, the Staff indicated, inter alta, that it would voluntarily respond to C ASE's interrogatories without the requisite 10 C.F.R.
I 2.720(h)(2)(fi) finding by the Licensing Board that the interrogatories request information that is "necessary to a proper decision in the proceeding" and "are not reasonably obtainable from any other 8612100094 861205 PDR ADOCK 05000445 G
. j source."
The Staff and CASE reached agreement ths.t the Staff would l
respond to CASE's interrogatories no later than December 1, 1986, but that the Staff would attempt to respond to some of the interrogatories prior to that date on a best effort basis. Response, pp. 2-3.
III.
DISCUSSION Discovery against the Staff stands on a different footing than discovery with respect to other parties.
Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 323 (1980).
The Staff does not have the same obligation to respond to all discovery requests filed against it by other parties.
More importantly, the kind of discovery and the type of information that may be sought in discovery against the Staff is much more circumscribed, as compared to the discovery permitted under 10 C.F.R. I 2.740.
Unlike other parties, the Staff need not respond to interrogatories unless the Licensing Board finds that the information is both "necessary to a proper decision in this proceeding," and that it is "not reasonably obtainable from any other source."
Id.
By contrast, other parties may file interrogatories with each other that merely request information, not privileged, which is " relevant to the subject matter involved in the Il proceedin g... "
Indeed,% it is not a ground for objecting that the information requested is not admissible; the test is whether the information sought " appears reasonably calculated to lead to the discovery of admissible evidence."
10 C.F.R. I 2.740(b)(1).
Thus, discovery by interrogatories against the Staff under Section 2.720(h)(2)(ii) is much m--
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p narrower an'd more limited than discovery of other parties under Section 2.740.
This is also true for discovery of documents.
While Section 2.740 permits other parties wide leewa'/ to discover documents, parties seeking documents from the Staff II must file a request with the NRC's Executive
^
Director for Operations (EDO).10 C.F.R. I 2.744.
Under Section 2.744, the EDO may object to producing a requested document if (a) it is not relevant, (b) it is " exempted from disclosure under Section 2.790 and the disclosure is not necessary to a proper decision in the proceeding," or (c) the document or information requested is " reasonably obtainable from another source."
The Staff has decided that in this situation it will respond to CASE's interrogatories without the necessary Licensing Board ruling under 10 C.F.R.
I 2.720(h)(2)(li), and provide requested documents without the necessary filing of the request with the EDO.
However, it is the Staff's position that much of the discovery sought by CASE is irrelevant, not necessary to a
proper decision in this proceeding, unduly burdensome, and therefore is objectionable under 10 C.F.R.
f f 2.720(h)(2)(ii) and 2.744.
Accordingly, the Staff interposes the objections set forth below.
The Staff object to answering Interrogatories 3, 4, 5, 6, 8, and 19, j
as well as portions of Interrogatories 2, 9, and 11, because they ask for t
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Documents are also made available by the Staff in accordance with 10 C.F.R.
I 2.790;
- however, that Section sets forth nine broad categories of information which may be withheld from public disclosure.
. j information and documents which are not relevant to the subject of this phase of the proceeding.
See 10 C.F.R. 8 2.740(b)(1).
At the August 19, 1986 prehearing conference the Licensing Board directed that this phase of the proceeding shall concern the adequacy of the CPRT Program Plan itself, as opposed to the adequacy of the Program Plan's implementation.
Since this information is not necessary to a proper decision in this proceeding, see 10 C.F.R.
I 2.720(h)(2)(ii), the Staff requests that a protective order be entered by the Licensing Board relieving the Staff of any duty to respond to the above-listed Interrogatories.
The Staff objects to answering Interrogatories 19 and 20, as well as portionE, of Interrogatory 32, since they ask for information regarding design.
It is the Staff's understanding that an agreement was reached between CASE and Applicants, which was approved by the Licensing Board, that the scope of this phase of the proceeding shall be limited to the adequacy of the CPRT Program Plan with regard to matters other than design and design QA adequacy.
See Letter from Juanita Ellis, CASE to the Licensing Board dated September 15, 1986.
The Staff shall therefore answer CASE's interrogatories in accordance with this j
agreement.
Since design is not to be litigated in this phase of the l
proceeding, information en that subject is not necessary to a proper decision in this proceeding.
10 C.F.R. S 2.720(h)(2)(ii).
Accordingly, the Staff requests that the protective order relieve the Staff of any duty to respond to the above-listed interrogatories.
l The Staff objects to Interrogatory 10, to the extent that it requests drafts or other documents containing the comments of Staff counsel, as
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well as any memoranda or documents produced by Staff counsel on SSER 13.
These are protected from disclosure by the attorney-client privilege. See 10 C.F.R. f 5 2.790(a)(5), 2.744(b); Consumers Power Co.
(Palisades Nuclear Power Facility), ALJ-80-1,12 NRC 117 (1930); see also 10 C.F.R.
I 2.740(b)(1).
The Staff has identified two documents responsive to this request for documents which are protected from disclosure by the attorney-client privilege:
(1) Note from Joseph Scinto to Charles Trammell (May 9, 1986),
discussing time period for ELD review of SSER (2) Note from Lawrence J. Chandler to Vincent Noonan (March 26, 1986), discussing adequacy of draft SSER 13.
j There is no compelling need by Intervenors for these documents that would warrant disclosure of these privileged documents.
This is especially true given the large number of Staff documents made available on its review of the CPRT Program Plan, (including draft SSERs), the routine release of letters to Applicants setting forth Staff comments and concerns, and the public meetings that were held to discuss the CPP.T Program Plan.
Accordingly, the Staff should not be compelled to produce the above-Usted documents.
The Staff objects to providing the information requested by
" Definition I.C,"
which d~sks, inter alia, that the Staff identify persons participating in meetings, ccntacts, conversations, all documents " written 4
during or as a result of" these meetings, contacts, etc., and identifying "all communications preceding, during or subsequent to such meetings or contacts.... "
This " definition" is unduly burdensome, since it would force the Staff to essentially recreate a chronology of events relating to
- j each contact or meeting.
Moreover, the relevance of this information to this phase of the proceeding is not evident; the Staff submits that the requested information is entirely unnecessary to a proper decision for this phase of the proceeding and is objectionable on that ground.
See 10 C.F.R. I 2.720(h)(2)(ii).
In addition, much of this information should be reasonably available from the Applicants.
For example, information on -
meetings, conversations and phone calls between the Staff and Applicants should be reasonably obtainabic from the Applicants.
For these reasons, the Staff urges the Licensing Board to relieve the Staff of the burden of responding to otherwise non-objectionable interrogatories in accordance with " Definition" I.C.
The Staff objects to complying with " Definition" 1.D.,
and to answering Interrogatories 2 and 10.
The definition essentially requires the Staff to spell out, in precise detail, the process ("every action, interface, decision point,
discussion point, conversation, inspection review, or conclusion") by which the Staff reached its final decision on the adequacy of the CPRT Program Plan.
The interrogatories also request the Staff to disclose the process by which it reached its con-clusion on the adequacy of the CPRT Program Plan. These pre-decisional deliberations are protected from disclosure by the executive or deliberative process privilege.
See 10 C.F.R.
I 2.790(a)(5).
The privilege protects from discovery government documents reflecting advisory opinions, recommendations, and deliberations comprising a part of the process by which governmental decisions are formulated.
See Long Island Lighting Company. (Shoreham Nuclear Power Plant, Unit 1),
ALAB-773, 19 NRC 1333,1341,1364, (1984), citing Federal Open Market
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Committee of the Federal Reserve System v.
Merril, 443, U.S.
340, 360 (1979).
Apart from being privileged, information on the process by which the Staff evaluated the CPRT Program Plan and reached a conclu-sion regarding its adequacy is irrelevant and unnecessary to a proper decision in this proceeding.
10 C.F.R.
I 2.720(h)(2)(ii).
The only relevant information is whether the Staff's conclusions regarding CPRT Program Plan adequacy are logical and have a basis in fact.
SSER 13 is the document which sets forth that information.
If the SSER is silent, unclear or contradictory with respect to the reasons for the Staff's conclusions, then discovery is appropriate.
However, an excruciatingly detailed description of the process by which the Staff evaluated and deliberated on the subject -- even assuming that the Staff would be able to eccurately recreate the process -- would be a time and resource wasting exercise on a matter wh:ch is, at best, a collateral issue to this phase of the proceeding.
The Staff submits that it need not respond to such a burdensome discovery request.
The Staff urges the Licensing Board to relieve the Staff from complying with these " Instructions."
The Staff objects to " instructions" 2.E. and 2.F, which request the Staff to provide CASE with detailed information on documents which no longer exist but that "could have answered" an interrogatory.
These instructions go well beyond the bounds of rational discovery and pose an unreasonable burden on the Staff, since they essentially request the Staff to engage in futile speculation about the o*igin, contents, and distri-bution of documents which no longer exist.
See eg., Instruction 2.E which requests the Staff to " identify what information was obtained in [no longer existing] documents," and to " state the circumstances under which
N
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.j such documents ceased to exist."
Since " Definition" 1. A defines "docu-ment" as being every copy of a document, CASE would have the Staff account for every copy of a document that was made.
This is patently unreasonable.
For these reasons, the Staff should be protected from this unreasonably burdensome discovery in accordance with 2.740(c).
IV.
CONCLUSION For the reasons set forth above, the Licensing Board should issue a protective order relieving the Staff of responding to CASE's CPRT Discovery-Staff in accordance with the objections discussed above.
Respectfully submitted,
/
i ary S. Mizuno C
nse for NRC Staff Dated in Bethesda, Maryland this 5th day of December,1986 i
t
000'EILE UsNPC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIONS DEC -8 P3 :01 DEFORE THE ATOMIC SAFETY AND LICENSING BOARD 0FFR t r 00Cr.E l!%
- ' /ICL In the Matter of
)
)
TEXAS UTILITIES ELECTRIC
)
Docket Nos. 50-445 COMPANY, ET AL.
)
50-446
)
(Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
CEP.TIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWERS TO CASE'S INTERROGA-TORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS" and "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, through deposit in the Nuclear Regulatory Commission's internal mail system, this 5th dey of December,1986:
Peter B. Bloch, Esq., Chairman Mrs. Juanita Ellis Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Polk Street U.S. Nuclear Regulatory Commission Dallas, TX 75224 Washington, DC 20555 Renea Hicks, Esq.
Dr. Kenneth A. McCollom Assistant Attorney General Administrative Judge Environmental Protection Division 1107 West Knapp P.O. Box 12548, Capital Station i
Stillwater, OK 74075 Austin, TX 78711 I
Elizabeth B. Johnson Nicholas S. Reynolds, Esq.
Administrative Judge William A. Horin, Esq.
l Oak Ridge National Laboratory Bishop, Liberman, Cook, P.O. Box X, Building 3500 Purcell & Reynolds i
1200 17th Street, N.W.
Oak Ridge, TN 37830 Washington, DC 20036 Dr. Walter H. Jordan Administrative Judge Joseph Gallo, Esq.
881 W. Outer Drive Isham, Lincoln & Beale Oak Ridge, TN 37830 Suite 840 t
1120 Connecticut Avenue Washington, DC 20036 i
l l
, j.
1.
f, 2-Billie Pirner Garde 51r. W. G. Counsil Trial Lawyers for Public Executive Vice President Justice Texas Utilities Generating Company 3424 North Marcos Lane 400 North Olive Street, L.B. 81 Appleton, WI 54911 Dallas, TX 75201 William L. Brown, Esq.
Anthony Z. Roisman, Esq.
U.S. Nuclear Regulatory Commission Trial Lawyers for Public Justice 611 Ryan Plaza Drive, Suite 100 2000 P Street, N.W., Suite 611 Arlington, TX 76011 Washington, DC 20036 Robert A. Wooldridge, Esq.
Roy P. Lessy, Jr., Esq.
Worsham, Forsythe, Samples Wright & Talisman, P.C.
& Wooldridge Suite 600 2001 Bryan Tower, Suite 2500 1050 17th Street, N.W.
Dallas, TX 75201 Washington, DC 20036-5566 Mr. IIarry Phillips William H. Burchette, Esq.
Resident Inspector / Comanche Peak Mark D. Nozette, Esq.
Steam Electric Station Heron, Burchette, Ruckert c/o U.S. Nuclear Regulatory Commission
& Pothwell, Suite 700 P.O. Box 38 1025 Thomas Jefferson Street, N.W.
Glen Rose, TX 76043 Washington, DC 2007 Lanny Alan Sinkin James M. McGaughy Christic Institute GDS Assoc. Inc.
1324 North Capitol Street 2525 Cumberland Parkway, Suite 450 Washington, DC 20002 Atlanta, GA 30339 Robert D. Martin Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Board Panel
- i 611 Ryan Plaza Drive, Suite 1000 U.S Nuclear Regulatory Commission Arlington, TX 76011 Washington, DC 20555 Robert A. Jablon, Esq.
Atomic Safety and Licensing Appeal Spiegel a ficDiarmid Board Panel
- 1350 New York Avenue, N.W.
U.S. Nuclear Regulatory Commission Washington, DC 20005-4798 Washington, DC 20555 Thomas G. Dignan, Esq.
Docketing and Service Section*
Ropes & Gray Office of the Secretary 225 Franklin Street U.S. Nuclear Regulatory Commission Boston, MA 022110 Washington, DC 20555 s
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