ML20235Y864
| ML20235Y864 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/22/1987 |
| From: | Mccarty M HERON, BURCHETTE, RUCKERT & ROTHWELL, TEXAS-LOUISIANA ELECTRIC COOPERATIVE OF TEXAS |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#387-4054 OL, NUDOCS 8707270082 | |
| Download: ML20235Y864 (25) | |
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64 ab UNITED STATES OF AMERICA r y. q u :
NUCLEAR REGULATORY COMMISSION
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Before the l
'87 IL 22 P4 :01 ATOMIC SAFETY AND LICENSING APPEAL BOARD l
cp i
00D 4,
I In the Matter of:
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Docket Nos. 50-445-OL l
TEXAS UTILITIES ELECTRIC
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50-446-OL COMPANY, INC., et al.
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(Comanche Peak Steam Electric
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Station, Units 1 and 2)
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RESPONSE OF APPLICANT TEX-LA ELECTRIC COOPERATIVE OF TEXAS, INC. TO " APPLICANT TEXAS UTILITIES ELECTRIC COMPANY'S PETITION FOR DIRECTED CERTIFICATION OF LICENSING BOARD ORDER OF MARCH 12, 1987" Tex-La Electric Cooperative of Texas, Inc.
(" Tex-La"),
co-applicant for a license to operate to Comanche Peak Steam Electric Station, Units 1 and 2, hereby responds in opposition to the pleading filed June 19, 1987 styled as " Applicant Texas Utilities Electric Company's Petition for Directed Certification of Licensing Board Order of March 12, 1987."
On its face, the petition of Texas Utilities Electric Company
("TUEC") seeks to overturn, by directed certification, a 8707270082 870722 PDR ADOCK 05000445 g
)hd wm-______._______-
Protective Order approved by an Atomic Safety and Licensing Board (" Licensing Board") on March 12, 1987.
In essence, however, the petition is aimed at an earlier Licensing Board discovery order, entered November 28, 1986, from which the
. March 12 order was a direct outgrowth.
Tex-La opposes TUEC's petition and urges that it be dismissed or summarily denied because (1) the " petition" is in fact an improper interlocutory appeal of a discovery order, which presents no compelling issue suitable for review by directed certification; (2) TUEC's request for directed review is grossly out of time; and (3) even if TUEC's filing was procedurally correct, the Licensing Board's ruling, contrary to TUEC's assertions, is consistent with discovery principles involving work product privilege, does not infringe TUEC's constitutional rights, and does not improperly restrict the NRC staff's processing of the license application.
I.
BACKGROUND The subject of TUEC's petition grows out of a June 27, 1986 discovery request directed to Tex-La by intervenor citizens' Association for Sound Energy (" CASE").
On October 2,
- 1986, after having agreed to supply CASE with much of the material requested, Tex-La invoked the work product privilege under 10 C.F.R. 5 2.740(b)(2) and Fed. R. Civ. P.
26(b)(3) with respect
4.
to certain' documents prepared in anticipation of litigation against co-applicant TUEC.
The litigation, initiated in May 1986 by TUEC and currently pending before a Texas state court in Dallas, pits TUEC against each of its co-applicants for a license for the Comanche Peak plant.
CASE moved the Licensing Board on October 20, 1986 to compel production of certain of the documents which Tex-La had claimed were privileged. 1 Tex-La, appearing on its own behalf through the undersigned counsel, opposed CASE's motion to compel; alternatively, Tex-La argued that if it were required to produce the requested materials, then the Licensing Board should issue a protective order precluding disclosure of the documents to TUEC and to the attorneys representing TUEC~in the State court litigation, j
On November 28, 1986, the Licensing Board issued a i
Memorandum and Order in which the Board granted CASE's request I
1 The documents in question were prepared by Tex-La's engineering consultants and related to their monitoring program of the Comanche Peak plant.
As explained to the Licensing Board in a November 4, 1986 pleading filed by Tex-La, all documents prepared by the engineering consultants after February 1, 1985 -- which includes all documents as to which the privilege was asserted -- were prepared in anticipation of the litigation against TUEC.
See." Response of Tex-La Electric Cooperative of Texas, Inc. to ' Supplemental Case Response to Applicants' Motion for Protective Order Re 6/27/86 Discovery and Motion to
]
Compel'" at pp. 7-10.
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to compel production but further granted Tex-La's request for a protective order.
The Board stated (at p. 4):
To protect the information from Texas Utilities and avoid preindicing the state-court contest, we shall direct CASE to write and execute a protective agreement.
If Tex-La approves of the agreement and it is executed, it shall constitute an Order of this Board.
Should Tex-La not approve of the agreement, it shall be submitted to the Board for its consideration. [ Emphasis supplied.]
Subsequently, CASE and Tex-La were able to reach i
concurrence en the terms of a protective agreement as contemplated in the Licensing Board's November 28 Order.
The agreed-upon Protective Order was submitted to the Licensing Board and was approved by the Chairman on March 12, 1987.
In essence, the Protective Order provides that Tex-La will turn over the requested documents to CASE, and on request, to counsel for the NRC staff and to the counsel representing all the Comanche Peak applicants in the NRC licensing proceedings.
The order prohibits any of the recipient counsel from disclosing the protected documents or their content "to TUEC (including any of its affiliated companies) l l
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- or to any law firm which represents TUEC in liti.gation against Tex-La." 2 Protective Order at 3.
In seeking directed certification by this Appeal Board, TUEC contends that the Protective Order violates the utility's constitutional rights; is contrary to established discovery principles; improperly interdictr the responsibilities'and authority of the NRC staff; and unless vacated, threatens to disrupt irreparably the orderly conduct of these licensing proceedings.
In fact, however, TUEC has grossly overstated the import of what actually is a relatively simple discovery matter.
As we demonstrate below, 2
At the time of the Licensing Board's November 28 Order, the lead counsel in these licensing proceedings, the law firm of Worsham, Forsythe, Sampels & Wooldridge
('Worsham, Forsythe"), was also serving as TUEC's actorneys in the Texas litigation against Tex-La and the other co-applicants.
This apparent conflict of interest was " note [d] with some concern" by the Licensing Board (Nov. 28 Order at 4).
On February 9, 1987, the State court granted Tex-La's motion to disqualify Worsham, Forsythe from representing TUEC in the Texas litigation.
The court's February 9 order provided that Worsham, Forsythe could provide assistance and consultation to TUEC's new counsel until May 1, 1987, at which point the firm was required to discontinue any further involvement in the litigation. On May 22, 1987, the State court denied the April 23, 1987, motion of TUEC to reconsider the disqualification of Worsham, Forsythe.
TUEC now is represented in the lawsuit by the firm of Jackson, Walker, Winstead, Cantwell & Miller.
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this matter hardly possesses a level of significance which would justify interlocutory review by this Appeal Board on directed certification.
Moreover, there simply is no merit to the legal arguments propounded by TUEC.
The Licensing Board has committed no error in prohibiting TUEC from discovering indirectly in these proceedings documents which clearly are privileged from discovery by TUEC in the state court litigation (litigation initiated by TUEC) for which the documents were prepared.
II. ARGUMENT A.
This Matter Is Unsuitable for Interlocutory Review by Directed Certification.
As the Appeal Board has made plain on numerous occasions,
"[t]he general policy of the Commission does not favor the singling out of an issue for appellate examination during the continued pendency of the trial proceeding in which the issue came to the fore."
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
NRC
, ALAB-861 (Slip Op.,
March 2, 1987), quoting Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), 1 NRC 478, 483 (1975).
Indeed, the Commission's rules expressly provide that "[n]o interlocutory appeal may be taken to the Commission from a ruling of the presiding officer."
10 C.F.R.
S 2.730(f).
While the Appeal Board has the discretionary authority to direct certification of questions of exceptional importance, 10 C.F.R.
S 2.718(i), such discretion has been exercised "only in
_ _ _ _ _ _______________________- _ ____ the most extraordinary circumstances."
Long Island Lighting Co., supra, slip op. at Almost without exception, this Board will undertake discretionary interlocutory review only where a presiding officer's ruling either (1) threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by later apppeal, or (2) affects the basic structure of the proceeding in a pervasive or unusual manner.
Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), 22 NRC 470, 473 (1985); Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 1), 20 NRC 1579, 1582 (1984); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), 20 NRC 378, 381 (1984); Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), 5 NRC 1190, 1192 (1977)
(" Marble Hill").
TUEC has failed to show that the Licensing Board's discovery order calls into play either prong of this so-called Marble Hill standard.
As discussed below, given the nature of the subject discovery documents, their disclosure to CASE is extremely unlikely to have any bearing whatsoever on the outcome of this licensing proceeding.
Moreover, the fact that the materials will be disclosed to CASE and to the joint applicants' licensing counsel, but not to TUEC's principals or to its litigation counsel, cannot conceivably interpose the l
type of "immediate and serious irreparable impact" which is l
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1 necessary to justify interlocutory review. 3 Nor can TUEC contend that the Board's ruling will alter the basic structure of the licensing proceeding in any manner, much less a
" pervasive or unusual" one.
See Arizona Public Service Co.
(Palo Verde Nuclear Generating Station, Units 2 and 3), 18 NRC 380, 383-84 (1983).
It is not surprising that TUEC has failed to satisfy the Marble Hill criteria, for the Appeal Board frequently has observed that "[dliscovery rulings rarely meet those tests."
Long Island Lighting Co (Shoreham Uuclear Power Station, Unit 11, 20 NRC 378, 381 (1984), quoting Consumers Power Co.
(Midland Plant, U n i t s.._ 1,a n d 2 ), 13 NRC 96, 99 (1981). 4 To permit interlocutory review of discovery orders except in the most compelling circumstances -- none of which exist here --
3 In the unlikely event that the materials disclosed to CASE contain or lead to evidence which CASE later attempts to introduce against the applicants, then in such event TUEC will have every opportunity to lodge an objection to the admissibility of that evidence before the presiding officer.
See 10 C.F.R.
S 2.718(c) and (e).
4 See also Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), 12 NRC 168, 170 (1980) ("As a general matter, discovery rulings of licensing boards are not promising candidates for the exercise of our discretionary authority to review interlocutory orders."); Commonwealth Edison Co. (Zion Station, Units 1 and 2), 6 AEC 258 (1973) (distinguishing discovery ruling against non-party, which has attributes of finality, from discovery ruling against party, which "is wholly interlocutory in character").
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- _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ - _ would infringe upon the presiding officer's authority to regulate the conduct of a proceeding and would lead to frequent unwarranted procedural delays.
It is noteworthy that the Licensing Board has not itself referred this matter to the Appeal Board for intermediate review.
The Licensing Board of course has the prerogative to certify a questibn to the Appeal Board under section 2.730(f) of the Commission's Rules and under section V(f)(4) of its Statement of General Policy and Procedure (10 C.F.R. Part 2, App. A), when the Licensing Board believes that:
a major or novel question of policy, law or procedure is involved which cannot be resolved except by the Commission or the Appeal Board and when the prompt and final decision of the question is important for the protection of the public interest or to avoid undue delay or serious prejudice to
- [Id.)
the interests of a party.
i The fact that the Licensing Board did not view the instant discovery matter as warranting interlocutory certification is telling.
Although the Appeal Board still has discretion to direct certification of the question, it is "obviously more i
l likely to intercede where a licensing board believes that its l
ruling has the type of overall impact on the proceeding that warrants our immediate attention."
Commonwealth Edison Co.
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(Braidwood Nuclear Power Station, Units 1 and 2), 22 NRC 470, 475 (1985). 5 In sum, the ruling below does not present the type of compelling issue that would indicate review by directed certification.
While couched in allegations that its 5
constitutional rights are being violated, TUEC's petition in truth seeks interlocutory review of a simple discovery ruling which, if not entirely routine, is hardly aberrant.
TUEC's petition therefore should be summarily denied.
ggg B.
TUEC's Request for Interlocutory Review Is Grossly Out of Time Under any reasonable interpretation of the Commission's Rules, TUEC's petition was untimely filed and on that basis alone this Board would be well justified in rejecting it.
In any event, the fact that TUEC waited as long as it did to seek review of the subject discovery ruling is further indication that this matter lacks the level of significance required for directed certification by the Appeal Board.
5 On the other hand, even whon a presiding officer (including a licensing board) has certified an interlocutory ruling to an Appeal Board, the Appeal Board may decline to exercise review if it does not find the question presented to be sufficiently compelling.
E a.,
Marble Hill, supra, 5 NRC at 1191.
_ _ _ _ _ _ _ _ _ _ l Although directed on its face to the Protective Order approved March 12, 1987, TUEC's petition in reality is aimed at the Licensing Board's November 28, 1986 Memorandum and Order.
It was in the November 28 Order that the Licensing Board agreed with Tex-La that a prot 9ctive agreement was warranted in order
"[t]o protect the information from Texas Utilities and avoid prejudicing the state-court contest."
Nov. 28 Order at 4.
The subsequent Protective Order merely implemented, and did not substantively a: +.e_ or expand upon, the mandate of the Board's November ruling.
TUEC did not file its petition for directed certification until June 19, 1987 -- nearly seven months after issuance of the November Order and more than three months after approval of the Protective Order.
TUEC's action thus comes far too late, even if the petition is viewed as being taken from the later order.
While the Commission's Rules apparently do not prescribe a specific time limit within which a party may seek directed certification of an interlocutory ruling, it bears mention, by way of analogy, that the deadline for filing a notice of appeal from an initial decision (i.e., a final ruling) of a licensing board is ten days after service of the decision.
10 C.F.R.
S 2.762(a); see also id. Part 2, App. A, S
IX(d)(1).
Using the ten-day window as a reasonable guideline, any petition for review of the November 28 order should have l
I been lodged on or about December 8, 1986, and on or about March 22 with respect to the Protective Order.
I It would be incongruous indeed if TUEC were allowed a far i
greater period of time to seek review of an interlocutory discovery order -- appeals of which are clearly discouraged by i
the Rules of Practice -- than would be allowed in the case of a final order that is appealable as a matter of right. 6 Yet that is precisely what TUEC is asking here.
The reasons advanced in justification of TUEC's tardiness -- viz., an unfulfilled " optimism" that the Licensing Board's ruling "could somehow be accepted as tolerable if nonetheless erroneous" (Petition at 16 n.16) -- are unconvincing.
Interlocutory review is warranted only when a " prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense."
10 C.F.R. S 2.730(f). 7 Review of the subject 6
See 10 C.F.R. Part 2, App. A S IX(d)(4) ("There must be strict compliance with the time limits prescribed for the filing of the notice of appeal and briefs by the rules of practice or by an order of the Appeal Board which extends or shortens those limits in the particular case.
In no circumstances will a document be accepted by the Appeal Board on an untimely basis unless it is accompanied by a motion for leave to file it out of time, which similarly must be founded upon extraordinary and unanticipated circumstances ")
7 This is true even when the interlocutory ruling is clearly in error.
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), 15 NRC 1105, 1113 (1982).
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- discovery order'would' serve precisely the opposite ends, and.
TUEC's lateness in bringing this petition is strong indication that no such exigencies exist.
See Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), 18 NRC 371, 373 n.2 (1983).
For these reasons as well, the petition should be dismissed.
9 C.
The Dis:overy Order Will Not Violate TUEC's Constitutional Rights TUEC's claim that its constitutional rights will be violated by the terms of the Protective Order can be described most charitably as a red herring, and most accurately as frivolous.
As TUEC correctly points out, a party has a due process right to a " reasonable opportunity to know the claims of the opposing party and to meet them."
Petition at 5-6,
. uoting Morgan v. United States, 304 U.S.
1, 18 (1938).
This q
right, however, confers nothing more than a fair opportunity to discover whatever essential facts are possessed by an adverse party and are not otherwise readily available to the party seeking discovery.
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In this case, the materials which Tex-La has been ordered to turn over to CASE consist largely of notes and memoranda containing the mental impressions of Tex-La's consultant-relating to their program of monitoring the Comanche Peak plant's construction and implementation.
While these documents may contain some factual material to which CASE does not otherwise have ready access, the same cannot be said with respect to TUEC.
In fact, most of the material in the consultants' notes is based exclusively on factual matter which is either in the public domain or in TUEC's possession as project manager.
As we explained to the Licensing Board:
The information about the plant that formed the basis of each monitoring report was primarily received from TUEC in the course of site visits and meetings with plant i
personnel.
In addition, other information was gained by reviewing NRC documents, attending NRC meetings and hearings for informational purposes, and reviewing various pleadings filed by the parties to the operating license and construction permit proceedings.
Therefore, information gained through the monitoring program consisted of facts in the public domain or fact's already known to TUEC.
Tex-La's engineering consultants and attos.neys then took these facts and distilled and evaluated them in a manner that would be useful for Tex-La for the purposes of business and, later, legal planning, j
I
' Response of Applicant Tex-La Electric Cooperative of Texas, Inc. to " Supplemental Case Response to Applicants' Motion for Protective Order Re 6/27/86 Discovery and Motion to Compel,"
filed Nov.
4, 1986, at 14.
Thus, it is inconceivable that any of the materials in question contain factual matter which is not already available to TUEC.
In the unlikely event that CASE ultimately attempts to use any of the Tex-La documents at the licensing hearing, TUEC can then raise an objection; but it hardly will be able to complain that it is'" surprised" by any of the facts so introduced, and in any case will have ample opportunity to explain whatever material is presented and to cross-examine any witnesses who are used to introduce it.
TUEC's constitutional right to due process guarantees it no more than the absence of real surprise and the opportunity to confront its adversaries on cross-examination.
It is important to remember as well that under the Protective Order, only TUEC's principals and the attorneys representing the utility in the State court litigation are precluded from disocvering the materials. The attorneys handling the licensing proceeding on behalf of all the joint applicants, including TUEC, will have access to the documents in question.
This certainly will tend to ameliorate any potential prejudice to TUEC in its capacity as the party in
- charge of prosecuting the license application. 8 Whatever slight prejudice may inure to TUEC under this arrangement is well justified and in fact is of TUEC's own making, the utility having initiated the litigation in connection with which the Tex-La documents were prepared.
In no event does the disclosure arrangement violate TUEC's, or any other party's constitutional rights.
D.
The Protective Order Comports with Established Discovery Principles TUEC also claims that the Licensing Board's order to disclose the Tex-La materials to CASE but not to TUEC violates settled discovery principles.
TUEC's argument is founded on i
the erroneous premise that "the work product privilege is I
dependent not upon the identity of the person seeking disclosure, but upon the purpose for which the document was created."
Petition at 9.
While the purpose for which a document was created is indeed a critical inquiry, of no less importance is the relationship between the person seeking 8
We recognize that it normally is preferable for a party and its counsel to communicate freely without restriction.
However, as we noted before the Licensing Board, there is ample precedent for disclosing information to a party's counsel, but not to the party itself, when disclosure to the party would afford it an unfair advantage in a matter collateral to the proceeding at bar.
- See, e.g.,
Covey Oil Co. v. Continental Oil Co., 340 F.2d 993, 999 (10th Cir.
1965); Scovill Mfq. Co. v.
Sunbeam Corp., 61 F.R.D.
- 598, 602 (D. Del. 1973); Maritime Cinema Service Corp. v. Movies en Route, Inc., 60 F.R.D.
587, 590 (S.D.N.Y. 1973);
Spartanics, Ltd. v. Dynetics Engineering Corp., 54 F.R.D.
(Footnote continued on next page.)
f
' discovery and the person claiming the privilege.
The purpose of the work product rule is not to prevent disclosure of materials to the outside world in general, but rather to protect them only from the knowledge of an opposing party and his counsel, so that the opposing party cannot use the information against the party for whom it was prepared, in litigation.for which it was prepared or in a related case 1
involving the same parties.
See 8 Wright & Miller, Federal Practice and Procedure (1970) S 2024 at 210; GAF Corp. v.
Eastman Kodak Co.,
85 F.R.D.
46, 51-52 (1979). 9 (Footnote continued from previous page.)
l 526 (N.D. Ill. 1972); American Oil Co. v.
Pennsylvania Petroleum Products Co.,
23 F.R.D.
680, 684-85 (D.R.I.
1959).
9 I
In this regard TUEC misrepresents that there is a i
hard-and-fast " sole test" for determining whether material l
is protected by the work product privilege.
See Petition at 9 n.8.
As Wright & Miller explain, in situations involving multiple parties and related actions, the courts need not be confined by a literal reading of Rule 26(b)(3) and can continue to arrive at sensible decisions on this narrow point.
To the extent that Rule 26(b)(3), literally read, seems to give insufficient protection to material prepared in connection with some other litigation, the court can vindicate the purposes of the work product rule by the issuance of a protective order under Rule 26(c).
To the extent that the rule seems to give undue protection to material prepared for some other suit the court can hold that the material is work product, as Rule 26(b)(3) requires, but view tolerantly the showing necessary to overcome the work proudct immunity.
8 Wright & Miller, S 2024 at 202; see also cases cited therein.
Sections 2.740(b) and (c) of the Commission's rules are very similar in content and purpose to Fed. R.
Civ. P. 26(b) and (c).
The Licensing Board correctly observed that Tex-La and TUEC are opposing parties in a Texas lawsuit that is closely related to this licensing proceeding.
The Board also accepted Tex-La's assertion that the documents in question were prepared in anticipation of the litigation against TUEC.
It determined that because TUEC and Tex-La were aligned as co-appplicants on the same side of this proceeding, whereas CASE -- which is not a party to the lawsuit -- was an opposing intervenor and because the materials may be relevant to CASE's hearing preparation, CASE should have access to the documents.
The Board further determined, however, that in view of the adversarial positions of Tex-La and TUEC in the state court litigation, it should not hazard prejudicing Tex-La's ability to protect the documents from TUEC under the work product doctrine.
The Licensing Board thus invoked its broad discretion to fashion proctective orders, protecting the I
1 materials from TUEC here while inviting TUEC to pursue their compulsion in the court proceedings.
4 Far from violating " settled discovery principles" as TUEC I
alleges (Petition at 8), the Licensing Board's action represents a reasonable and correct exercise of its considerable discretion to regulate discovery.
One of the most fundamental principles of discovery, both in trial courts and before administrative agencies, is that the judge or presiding 1
l officer has wide discretion to prevent or limit discovery I
h through protective orders.
Such orders are regularly issued when its appears that the potential for unfair prejudice or annoyance to one party outweighs the other party's need for.the l
material in question.
These orders may not be overturned on l
appeal abaent a showing that the trial officer abused his discretion.
- See, e.g.,
Galella v. Onassis, 487 F.2d 986, 997 (2d Cir. 1973); General Dynamics Corp. v.
Selb Mfg. Co.,
481 F.2d 1204 (8th Cir. 1973), cert. denied, 414 U.S.
1162 (1974);
8 Wright & Miller, Federal Practice and Procedure (1970) S 2306 at 267-69.
The Licensing Board did not abuse its discretion by precluding TUEC and its litigation counsel from discovering indirectly in this proceeding documents which may be privileged from discovery in the state court proceedings.
The Board determined that the work-product doctrine would not be applied here against CASE, presumably because CASE was not involved in the Texas lawsuit and, unlike TUEC, did not have independent access to the factual information contained in the documents.
November 28 Order, at 3.
The fact that TUEC was treated differently from CASE does not render the Board's action an abuse of discretion.
Despite the rhetoric in its Petition, TUEC itself has absolutely no need for the Tex-La documents insofar as its prosecution of this license application is concerned; rather, TUEC obviously seeks to gain an unfair
' leg-up in the State court action by discovering the mental impressions and other work product of Tex-La's consultants, which were prepared in anticipation of litigation against TUEC 10 The Licensing Board clearly committed no error in refusing to allow this.
E.
'The Protective Order Will Not Improperly Interfere With NRC Staff's Responsibilities Likewise, there is absolutely no merit in TUEC's contention that the Protective Order will improperly interdict the authority and responsibilities of the Commission Staff.
The Staff's role in the licensing proceeding is that of a party.
As a party, the Staff is subject to any orders of the presiding officer governing the conduct of the proceeding.
The Commission's rules explicitly provide that a presiding 10 TUEC has already demonstrated its willingness to use such back-door tactics.
TUEC used against Tex-La in the State Court litigation information provided to them by Tex-La in support of the licensing effort.
In his letter of March 25, 1987 TUEC Vice President John W.
Beck requested that Tex-La Manager John Butts provide certain information to TUEC in order to assist TUEC's preparation of a response to a motion of the interveners in the licensing proceedings.
Those responses were provided in an April 1, 1987 letter from Tex-La attorney William H. Burchette to Thomas Dignan, Esq. of Ropes & Gray, lead licensing counsel.
Part of Tex-La's response was subsequently quoted in support of TUEC's arguments against the minority owners in its April 23, 1987, motion to reopen and reconsider the disqualification of their attorneys in the Texas state court litigation, Worsham, Forsythe, Sampels, and Wooldridge.
I
" 1 officer's authority to regulate a proceeding includes the power to limit the scope of discovery (10 C.F.R.
S 2.740(b) & (c)),
1" and that such limitations may be imposed via protective orders (id. S 2.740(c)).
It is disingenuous for TUEC to contend that the NRC Staff is uniquely immune from compliance with discovery orders.
In support of its argument, TUEC relies on New' England Power Co. (NEP, Units 1 and 2), 7 NRC 271, 279 (1978), where a Licensing Board stated that "the Board does not have the power l
to direct the Staff in the performance of its independent responsibilities.
In the NEP case, however, the Board had before it a motion to " direct the NRC Regulatory Staff to suspend its review of the NEPCO application, preparation of the draft environmental impact statement, and any and all work, studies, or analyses being conducted or planned as part of evaluation of NEPCO's proposal."
Id. at 279-280.
That is a far cry from the simple procedural directive imposed on the Staff under the March 12 Protective Order in issue here.
In fact, the Board in NEP specifically distinguished the type of sweeping action requested in that case from the inherent authority which the presiding officer necessarily must have in order "to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order."
Id., citing 10 C.F.R.
S 2.718.
Of course, the Board's authority to regulate discovery falls within the latter l
category and is entirely proper.
I
h
' The only restriction placed on NRC Staff in the Protective order is that the Staff may disclose the protected _ documents i
and their content only to other persons who are also part of the NRC Staff.
Protective Order at 2-3.
The underlying intent Lof this restriction clearly was to protect the documents from disclosure to TUEC's principals or to its state-court litigation r.ttor'neys.
It was not intended to interfere in'any way with Staf?'c' responsibilities.
In the unexpected event that Staff subsequently feels a need to disclose the documents
~
beyond what is permitted by the Order, it is likely that an accommodat. ion could be reached at that time between Staff and Tex-La, so long as the materials remain protected from TUEC, III.
. CONCLUSION In summary, there is absolutely no basis for reverral of the Licensing Board's discovery rulings by directed certification.
This matter is wholly unsuited for interlocutory review, as none of the exigencies that normally warrant such extraordinary relief have been shown to exist here.
TUEC's lateness in petitioning the Appeal Board is itself strong evidence that the rulings below will not have any fundamental effect on the licensing proceeding.
In any event, even if the Protective Order were deemed to have special significance, TUEC has not shown that its provisiens are unlawful, unreasonable, or otherwise erroneous, i
. It would be a dangerous precedent for this Appeal Board to reverse the Licensing Board's discovery orders.
Not only would it open the floodgates to a host of interlocutory appeals, but in the specific context of this proceeding it could seriously prejudice the' Comanche Peak minority owner's ability to defend the law suit brought by TUEC.
Intervenor CASE recently has served additional discovery requests against each of the minority owners..If the minority owners are required in this proceeding to disclose to TUEC materials which are protected under the work product privilege in the State court suit, the I
minority owners will be seriously and unfairly disadvantaged in
.that lawsuit.
Such a result should be avoided, and can be avoided without significantly prejudicing TUEC's prosecution of the license application.
For all of the foregoing reasons, Tex-La urges that TUEC's Petition for Directed Certification be denied.
l Respectfully submitted,
/~
%AD t William H. Burchette ll Foster De Reitzes i
Michael N. McCarty l
Heron, Burchette, Ruckert & Rothwell Suite 700 1025 Thomas Jefferson St., N.W.
Washington, D.C. 20007 l
Attorneys for Tex-La Electric l
l Cooperative of Texas, Inc.
Dated:
July 22, 1987 i
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CERTIFICATE OF SERVICE I, Michael N. McCarty, one of the attorneys for applicant Tex-La Electric Cooperative'of Texas, Inc., hereby certify that on July 22, 1987, I made service of the foregoing Response by mailing copies thereof, postage prepaid, to:
Peter B. Bloch,' Esquire Secretary Administrative Law Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C.
20555 U.S. Nuclear Regulatory Attn:
Chief, Docketing L
Commission
& Services Section Washington, D.C.
20555 Dr. Walter H. Jordan Mrs. Juanita Ellis l
Administrative Judge President, CASE 881 W. Outer Drive 1426 S. Polk Street Oak Ridge, TN 37830 Dallas, Texas 75224 l
i Stuart A. Treby, Esquire Ellen Ginsberg, Esquire Office of the Executive Atomic Safety and Licensing Legal Director Board Panel U.S.. Nuclear Regulatory U.S. Nuclea-Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
- 20555, c'%
CS Renea Hicks, Esquire Assistant Attorney General
);
- j Environmental Protection de 4>
Division' 9;
E$
P.O. Box 12548, Capitol Station
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,o Austin, Texas 78711 Chairman
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0' Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 l
e Anthony Roisman, Esquire Mr. Lanny A. Sinkin l
Cohen Milstein & Hausfeld Christic Institute l
1401 New York Ave., N.W.
1324 North Capitol Street Washington, D.C. 20005 Washington, D.C.
20002 Dr. Kenneth A. McCollom Mr. Robert D. Martin i
l Administrative Judge Regional Administrator 1107 West Knapp Region IV Stillwater, OK 74075 611 Ryan Plaza Drive Suite 1000 Arlington, Texas 76011 Ms. Billie Pirner Garde Geary S. Mizuno, Esq.
Midwest Office office of the Executive 3424 N. Marcos Lane Legal Director Appleton, WI 54911 U.S. Nuclear Regulatory Commission Maryland National Bank Bldg Room 10105 7735 Old Georgetown Road Bethesda, Maryland 20814 Elizabeth P. Johnson Nancy Williams Administrative Judge Cygna Energy Services, Inc.
Oak Ridge National Laboratory 101 California Street P.O. Box X, Building 3500 Suite 1000 Oak Ridge, Tennessee 37830 San Francisco, CA 94111 Robert A. Wooldridge, Esquire Nicholas Reynolds, Esquire Worsham, Forsythe, sampels Bishop, Cook,
& Wooldridge Purcell & Reynolds 2001 Bryan Tower, Suite 3200 1200 17th Street, N.W.
Dallas, Texas 75201 Washington, D.C.
20036 Mr. W.G. Counsil Executive Vice President Texas Utilities Generating Co.
Skyway Tower, 25th Floor 400 N. Olive Street Dallas, Texas 75201 Mr. Thomas G. Dignan, Jr.
Ropes & Gray 225 Franklin St.
Boston, MA 02110 l
AMDN}CC &
Michael N. McCarty
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