ML20215D480

Memorandum & Order Granting Intervenor Motion to Compel Responses to Interrogatories 15-18,denying Util Motion for Protective Order & Denying Intervenor Motion to Compel Answers to Listed Interrogatories.Served on 861215

ML20215D480
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/12/1986
From:	Frye J Atomic Safety and Licensing Board Panel
To:	LONG ISLAND LIGHTING CO., SUFFOLK COUNTY, NY
References
CON-#486-1888 86-533-01-OL, 86-533-1-OL, OL-5, NUDOCS 8612160374
Download: ML20215D480 (7)

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/fW UNITED STATc5 0F AMERICA Uy;%{[D NUCLEAR REGULATORY COMISSION ATOMIC SAFETY AND LICENSING BOARD '86 DEC 15 A10:35 Before Administrative Judges John H Frye, III, Chaiman fi,g Dr. Oscar H. Paris Mr. Frederick J. Shon SERVED DEC 151986 In the Matter of Docket No. 50-322-OL-5 (EPExercise)

LONG ISLAND LIGHTING COMPANY

) (ASLBP No. 86-533-01-OL)

(Shoreham Nuclear Power Station, )

Unit 1) ) December 12, 1986

)

MEMORANDUM AND ORDER (Ruling on Suffolk County's Motion to Compel LILC0 to Respond to the County's First Set of Interrogatories and Requests for Production and LILC0's Motion for a Protective Order)

Introduction On November 10, Suffolk County moved to compel LILC0 to answer certain interrogatories and requests for production. LILC0 opposed this motion and moved for a protective order on November 21. Suffolk responded to the latter motion on December 1.

l Interrogatories Concerning the Development of the Exercise Scenario and Objectives The controversy surrounding these interrogatories is important because it concerns the scope of the hearing. It involves

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interrogatories 15, 16, 17, and 18. Interrogatories 15 and 17 request the identity of all persons involved in the development of the exercise objectives and scenario, while interrogatories 16 and 18 request the production of relevant documents. LILC0 objected to these interrogatories on the ground that they did not seek relevant information or information likely to lead to the discovery of relevant information.1 Suffolk argues (motion, pp. 14-18) that the interrogatories seek infomation which may be relevant to Contentions Ex 15, Ex 16, Ex 36. Ex 38 41 Ex 47, and Ex 49.

How or why exercise objectives were drafted the way they were, how they were changed during the course of negotiating and finalizing them, and information concerning what was intended to constitute satisfaction of such objectives, is information which clearly is relevant to matters raised in the Governments' contentions, since those contentions concern various exercise events and perfomances by LILC0 players which, the Governments allege, did not in fact satisfy exercise objectives. (Motion, p. 16.)

Discussions and correspondence concerning the drafting, revising or finalizing of proposed and actual Exercise scenarios clearly could lead to relevant and admissible evidence concerning the assumptions upon which the actions of Exercise players were based, and concerning what actions the designers of the Exercise expected Exercise players to take in response to scenario events. Such assumptions and expectations constitute facts which are essential to an evaluation of whether actions by Exercise players were appropriate, given the scenario to which they were purportedly responding, as raised in admitted contentions . . . . (Motion,

p. 17.)

1 With respect to documents, LILC0 also raised the attorney-client privilege. See p. 6 below.-

k In its response (pp. 2-7), LILC0 first objects that Suffolk has failed to demonstrate the relevance of these interrogatories to the admitted contentions. It then proceeds to demonstrate that the information sought is indeed irrelevant to any of the cited contentions, noting the County's representations in its November 10 response to FEMA's motion for reconsideration of the October 3 Prehearing Conference Order that its contentions do not challenge the exercise scenario, but take that as a given and challenge only the results and evaluations of the exercise. LILC0 also seeks a protective order for these reasons.

We agree with LILC0's position that Contentions Ex 36, Ex 38-41, Ex 47, and Ex 49 clearly accept the design of the exercise and assert that LILC0 failed to meet certain exercise objectives. Contentions Ex 15 and Ex 16 assert that the exercise scope was too limited to comply with NRC requirements relating to a full participation exercise, and all intervenors have indeed asserted that they do not challenge the design of the exercise.

Nonetheless, Suffolk County is entitled to explore the factual bases for LILC0's position that this exercise meets the requirements for a full participation exercise. To the extent that individuals involved with the formulation of the exercise objectives and scenario have information bearing on that topic, LILC0 is to respond. Similarly, any documents relevant to that topic are to be produced.

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4-Interrogatories Concerning the Training Program Suffolk seeks answers to interrogatories 19, 20, and 21 (Motion, pp. 18-21). These interrogatories seek to identify all LER0 training activities which occurred during the year preceding the exercise, all participants in these activities, and production of all relevant documents. Suffolk justifies these requests on the basis that they are relevant to Contention Ex 50, which alleges that the exercise demonstrated fundamental flaws in the training program, and that to prove such flaws it is necessary to have a fu.i understanding of the training program.

In its response (pp. 7-9), LILCO points out that the nature of the training program is already well known to the County and has been litigated. See LBP-85-12, 21 NRC 644 at 744-56. There it was found that, subject to a finding after the exercise that the plan can be satisfactorily implemented with the training program submitted, the training program met regulatory standards. In this proceeding we are concerned with the results of the exercise, not the preexisting training program. Nor would it be proper to reexamine the conclusions reached in LBP-85-12. Consequently, the motion to compel answers to interrogatories 19, 20, and 21 is denied. ,

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Interrogatories Seeking the Identification of Organizations and Individuals Interrogatories 9 and 10 seek the identities of organizations and individuals who participated in exercise related activities before, during, and after the exercise. Interrogatory 11 seeks documents exchanged between '_ILC0 and the organizations and individuals identified.

Suffolk moved to compel responses and LILC0 opposed this motion and moved for a protective order. LILCO's opposition to the motion to compel and for a protective order raised the proposition that it should not be forced to identify individuals in order to protect them from harassment and intimidation. Additionally, LILC0 asserts that interrogatories 10 and 11 are overly broad and unduly burdensome.

From the County's response to the motion for a protective order (p.

5), it appears no controversy now exists to the extent that the County will not now press its claim for the identification of individuals.

This leaves LILCO's objections to interrogatories 10 and 11 on the grounds of breadth and burdensomeness. These interrogatories seek an identification of every individual and organization who participated in any way in any exercise related activities before or after the exercise, as well as all documents exchanged between LILC0,and the identified persons. Suffolk justifies this request'(pp. 13-14) on the basis that it could produce important and relevant information.

We agree with LILC0 that the request is too broad. It is not in any way tailored to produce information relevant to specific admitted l

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t contentions. This kind of fishing expedition is not permissible under the Rules of Practice.2 Privileged Documents Suffolk objects (pp. 7-8, 10-11, 16 and 18) to LILCO's assertion of the attorney-client and work product privileges in response to interrogatories 5, 8, 16, and 18 on the ground that LILC0 has not properly identified the documents claimed to be privileged or the particular privilege asserted. In its response (p. 15) LILC0 asserts that it properly identified the documents and privileges in its supplemental responses. LILC0 also claims privileges with respect to documents responsive to interrogatories 27 and 31; these docun.ents and privileges are also identified in LILC0's supplemental responses.

LILC0's supplemental responses to these interrogatories were served on November 10 (contemporaneously with Suffolk's motion) and November

26. It appears therefore that this controversy is not ripe for resolution. Suffolk and LILCO should seek to resolve any differences between themselves. If they are unable to do so, we will entertain another motion. 4

)

For the same reason, the motion to compel an answer to interrogatory 33, which requests ". . . copies of documents of any l kind relating to the Exercise and not previously produced . . ."

must also be denied.

l 4

)

Controller Documents Suffolk asserts (pp. 21-22) that LILC0 has not fully responded to its request for documents (interrogatory 27) prepared by the LERO

" control organization." LILC0 asserts (p. 16) that it has. Clearly counsel for Suffolk should have conferred with counsel for LILC0 to determine precisely what was meant by LILCO's response prior to involving the Board. From the papers before us we cannot tell whether l there is a dispute.

ORDER In consideration of the foregoing, it is this 12th day of December, 1986, ORDERED:

1. Suffolk's motion to compel responses to interrogatories 15-18 is granted and LILCO's motion for a protective order is denied to the extent that these interrogatories seek information bearing on the question whether the exercise meets the requirements for a full participation exercise;

2. Suffolk's motion to compel answers to interrogatories 10, 11, 19, 20, 21, 27, and 33 is denied; and

3. Suffolk's motion to compel with respect to claims of privilege is denied without prejudice to its later submitta,1 following negotiations with LILCO.

FOR THE ATOMIC SAFETY AND LICENSING BOARD m\[\

/JoNp B ff' e, III, Chairman ADMINI T TIVE JUDGE Bethesda, Maryland (d