ML20236E580
| ML20236E580 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/21/1987 |
| From: | Ellis J Citizens Association for Sound Energy |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#387-4102 OL, NUDOCS 8708030014 | |
| Download: ML20236E580 (12) | |
Text
7 I
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UNITED STATES OF AMERfCA I
7/21/87 NUCLEAR REGULATORYr. COMMISSION l
uv i
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD N IE M b kocket Nos. 50-445_ g
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In the Matter of I
and 50-446 TEXAS UTILITIES ELECTRIC y
l COMPANY, et al.
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I (Application for an
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(Comanche Peak Steam Electric i
Operating License) l Statien, Units 1 and 2) l CASE'S RESPONSE TO l
APPLICANTS' INTERROGATORIES TO INTERVENOR (Set No. 1987-9) and MOTION FOR PROTECTIVE ORDER 1
l CASE (Citizens Association for Sound Energy), Intervenor herein, hereby files this, its Response to Applicantei 6/19/87 Interrogatories to Intervenor (Set No.1987-9) and Motion for Protettive Order 3/, and I
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l requests issuance by this Board of a protective order relieving CASE of any
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i obligation to respond to Applicants' Interrogatories to Intervenor (Set 1987-9).
CASE's objections to Set 1987-9 are similar to our objectiors to Sets 1 through 3, 5, and 8 (see:
CASE's 2/17/87 Motion for Protective Order and i
Memoranduciin Support; CASE's 3/20/87 Response to Applicants' laterrogatories t.o Intervenor (Set No. 1987-5) and Motion for Protactive Order; and CASE's 3/23 /87 Response to Applicants Interrogatories' to Intervenor (Set No. 1987-8 and Motion for Procective Order) and for the most part our arguments herein are the same.
In addition to general objections applicable to all or a substantial portion of the interrogatories, CASE also 11/ By agreement with Applicants' Counsel, the time for CASE to respond to Set 9 was extended to 7/21/E7.
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PDR ADOCK 0D000445 O
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l has several specific objections to particular interrogatories. Briefly stated, the general objections are:
1 1
The requests are premature and unanswerable by CASE until it has completed its CPRT discovery of the Staff and Applicants, which cannot be completed at least until Applicants unequivocally state 'that all modifications to the CPRT are complete and published. CASE has only recently received Revisien 4 of the CPRT Plan and we are in the process of 1
reviewing it at this time.
(It should be noted that CASL is still not l
l certain, and Applicants have not so stated, whether or not Revision 4 is the I
final codification to the CPRT Plan, although CASE does not believe that it i
is.) This objection is applicable to all interrogatories.
l 2.
The requests seek work in progress and thus are premature under the law of this case. This objection is applicable to all interrogatories.
3.
Insofar as the interrogatories are deemed to relate to issues of plant design or answers are in whole or in part dependent on implementation of any aspect of the CFRT or corrective action plan, they are premature and cannot be answered until the work has been completed and relevant discovery l
l thereon by CASE has been completed. This objection is applicable to all l
Interrogatories answers to which depend on implementation. !!a cannot determine the extent tn which answers depend upon implementation until we 1
1 have completed discovery on CPRT adequacy, but it appears that answers to Set 9 sepend, at least in part, on implementation. This objection also applies to all interrogatories that relate to design.
4.
The requests in Set 1987-9 seek to require CASE to prepare studies l
l and atialyses wh'ch it would not otherwise prepare or would not prepare until the Board has ruled on the adequacy of the CPRT and until all Results Reports have been published and discovery on them completed.
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5.
To the extent the analyses and positions requested are prepared by CASE's attorneys or representative, they are trial preparation materials and not subject to discovery and/or undiscoverable attorney work product. This objection is applicable to all interrogatories at this time but could change l
if and when CASE retains experts tc develop positions on any of the issues as to which discovery is sought.
6.
All of the questions seek to know in various forms what CASE contends and will be answered by CASE when it so contends in its way, not following an outline specified by Applicants. This objection is app?.icable to all interrogatories.
Briefly stated, the specific objections are:
- 1. Set 1987-9, Questions I-3, IX-3, and XVII-3 seek irrelevant information, information already known to Applicants, attorney work proouct and thinking processes.
2.
Set 1987-9, Ques tions 1-4, IX-4, and XV11-4 seek irreicvant information, information already known to Applicants, attorney work product
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and thinking processes.
Discussion The essence of the filed discovtry is to find out what positions CASE will teke, the bases for the posicions, the facts relied upon to support the bases, the experts to be used, their factual findings and opinions, and the bases for their conclusions. The principal objection to this discovery is that it is premature. CASE does not and will not know the answer to the questions propounded entil it has coroleted discovery and of course received 1
full answers to discovery, had time to analyze the data received, and 3
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l reached its conclusions. As mentioned previcusly, we have only recently received Revision 4 of the CPRT Plan, and we are still in the process of l
l revieving it.
At this point, CASE has no fina} position ready for j
l presentation to this Board, since discovery on the CPRT adequacy, Results j
Reports, and design issues is not nearly complete. CASE's preliminary j
positions f2/ are not discoverable because they are irrevelant and 1
l constitute opinions based on " work in process" which, at least for this I
f case, it has been determined need not be produced because it is disruptive j
l of ongoing work. Transcript of November 12, 1985, Hearing Before the Board, j
1 e.g., pages 24,257-24,258.
See also Pennsylvania Power and Light Co.
i (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613,12 NBC 317,
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338-39 (1980).
(" Simply as a matter of fairness, a licensing board may not
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l wa5.vc the discovery rules for one side and not the other.
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I For CASE, which does not generate internal documents, the disruption of j
l work is even greater because CASE would have to stop its analytical work to I
/2/ Throughout this proceeding, CASE has taken " positions" in the course of pleadings or oral arguments. Those positions represented CASE's view at that time based on the information that it had and had reviewed.
Those positions were taken in order to protect CASE's ability to adequately pursue the issues and/or to advise Staff, Applicants, or the Board (as a courtesy and voluntarily) of CASE's then current position.
l (CASE has voluntarily gone well beyond what might have been required in l
its recent responses in the. construction permit proceedings.) The only l
" positions" of CASE that could possibly be proper subjects for l
discovery are final positions upon which CASE will rely in this l
proceeding and those CASE has not yet developed on the subjects identified by Applicants. We are confident that there will be some generic, flaws in the CPRT but we do not yet know which ones or why. Wc are confident that some of the Results Reports' conclusions will not be sustainable, but we do not yet know which ones or why. Our confidence l
that there will be some flaws stems f rom our own judgments about Applicants' real commitment to do the job right babed on their past performance and the initial deficiencies that we have identifieu in the CPRT.
See:
Preliminary Review of the Comanche Peak Response Team Program Plan (Dkt. 2), attached to August 15, 1985, letter from Billie Garde co the Hearing Board; and CASE's 8/14/85 First Critique of Applicants' Comanche Peak Response Team (CPRT) Plan.
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produce answers to discovery which would reflect mid-course positions and l
supporting data which CASE would not otherwise develop. In addition, where Applicants were relieved of answering "in process" discovery with literally I
hundreds (maybe thousands) of people working on the development of their j
l case and thus avoided producing documents that actually already existed, CASE has only a small handful of people and diversion of any one of them to answer "in process" discovery would result in diversion of a substantial percentage of CASE's person power devoted to this case.
l It is particularly inappropriate for Applicants to seek the information l
in these interrogatories in light of their own performance in providing CASE j
with the data from which answers to the discovery could be provided. While in recent weeks Applicants have begun to produce a significantly increased flow or available data in some areas, this recent " data dump" has, as CASE J
warned it would, come only after more than a year of hypertechnical l
objections and wrangling over virtually every discovery request and has strained, well beyonc' its capacity, CASE's ability to quickly absorb the information. This newly released data relating to prior discovery received in the midst of the receipt of answers to CPRI adequacy discovery from Staff and Applicants and preparation for CPRT adequacy depositions is an obvious tactical maneuver. CASE cannot legally be made the victim of Applicants' information availability manipulation. Much of the data now being produced in relation to just-released Results Reports and in response to earlier CASE discovery is old data, dated a year ago or earlier.
See Attachment A to CASE's 2/17/87 Motion for Protective Order and Memorandum in Support for examples. Applicants had the capacity to make this available when it was generated and at all times since it was generated. Its sudden arrival as a prelude to the massive discovery request contained in Set 1987-9 (and some 5
previous Sets) is an all too obvious ploy.
The discovery also assumes that, separate and apart f rom CASE's attorneys and representative, there is a cadre of CASE staff who, like Applicants' staff, analyze and develop substantive positions that are then cubjected to lawyer review and thus that there is a body of opinion and analysis not prepared for litigetion and not prepared by lawyers or l
representative. That is largely an it. correct assumption. Virtually all the work on the CPRT. Results Reporta, design, and other 4ssues is done by the CASE attorneys and representative solely for the purpose of trial preparation.
Experts will be involved, if at all, only at the lact stages of the preparation of documents for filing, or preparation of the case for l
l trial or summary disposition (with the recent meeting between CASE's at-this-time non-testifying expert Jack Deyle and Applicants (Stone & Webster) on March 12 through 14, 1987, f alling in the category of an unusual cooperative effort of Applicants and CASE to discuss some of the complex and technical design issues in this case). No substantive documents are produced by CASE or its consultants that are not drafte or final versions of j
filed pleadings or docunents sent to the Staff br otherwise made public.
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Thus the answer to the pending discovery, if given now, would necessarily l
l require the impermissible divulging by CASE of the mental processes and analyses of its attorneys and representative.
Applicants' discovery is also inherently inappropriate in the context of this proceeding. The reality is that, as CASE develops its position on particular issues, CASE immediately discloses that position either in requests to the Staff (e.g., Preliminary Review of the Comanche Peak Response Team Program Plan (Dkt. 2), attached to August 15, 1985, letter from Billie Garde to the Hearing Board; Preliminary Analysis of Issue 6
1 Specific Action Plan 1.a.4, Agreement H3 tween Drawings and Field Terminations, attached to May 2,1986, letter f rom Billie Garde to Vincent Noonan; 4/24/87 case letter f rom Ms. Garde to NRC's Mr. Keppler detailing CASE's concerns regarding Applicants' currently angoing reinspection program and asking specific questions) or pleadings with this Board such as the expected summary disposition motions on CPRT adequacy, CASE has also attempted to cooperate by providing Applican:s with on-the-spot preliminary assessments by CASE's at-this-time non-testifying expert, Jack Doyle, of Stone & Webster's design efforts during the March 12 through 14, 1987, meeting. We have also gone beyond what might have been required in respaading to Applicants' Set 1987-7 (see especially pages 5 through 10 and page la of CASE's 3/23/87 Response to Applicants' Interrogatories to Intervenor (Set No. 1987-7) and Motion for Protective Order).
But for 1
preparing issues for trial or for presentation to the Staff, there is no l
CASE work on Comanche Peak. Unlike Applicants, who may prepare analyses l
l both for licensing purposes and for other purposes and who must prepare information to satisfy the Staff and this Board independent of CASE and its contentions, CASE has no information that is not directly tied to the presentation of its case in the various NRC fora. When CASE has a final position, Applicants will be one of the first to know it.
See also Attachment B to CASE's 2/17/87 Motion for Protective Order and Memorandum in Support.
Finally, as to CASE's general objections, the entirety of Set 1987-9 requests CASE to now conduct analyses and reach conclusions with respect to Results Reports that CASE has no intention or capacity for fully pursuing at this time. Our limited resources are now focussed on the CPRT Plan adequacy, CPRT and design issues (and recently in responding to 7
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interrogatories filed by Applicants in the construction permit proceedings).
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There is a process in place and a schedule proposed by CASE by which we can expeditiously file motions for summary disposition on Applicants' CPRT Plan as it relates to construction (see transcript of 3/9/87 telephone conference call), assuming Applicants cooperate in completing their responses to CASE's discovery promptly and work out an agreeable schedule with CASE regarding depositions. We do not expect to turn any significant portion of our l
l attention to the Results Reports, at least until the CPRT plan adequacy issue has been briefed by us and the final Results Reports, particularly VII.c. (which has still not been released by Applicants), have been issued.
Thus, to answer Set 1987-9 at this time would require CASE to prepare analyses that, at least for now, it would not be preparing.
Applicants are of course not entitled to require CASE to create documents or do analyses 1
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merely to answer discovery. See Applicants' 7/28/86 Responses to CASE's 6/30/86 Interrogatories and Request for Documents and Motion for Protective Order, p. 8; and Applicants' 12/12/86 Response to CASE's " Motion to Compel Answers to Sets 3-7," p. 5.
Paragraphs 1 and 2 of our specific objections (p. 3, supra) relate to the two following interrogatories, which are frequently repeated in Set 8:
"3.
Prior to answering this set of Interrogatories, has the Intervenor reviewed the Working File for the Results Report in question?
"4.
Has the Intervenor propounded any Interrogatories regarding the Results Report in question in order to obtain any information it believes to be necessary so as to make its review of the Working File complete?"
Applicants have no independent right to know what documents produced by it CASE has reviewed or what discovery CASE has conducted on Applicant-issued documents. Those answers would neither produce admissible evidence nor lead 8
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to admissible evidence. They seek instead to probe into the manner by which CASE prepares and will try its case.
In addition, Applicants already know the answer. They monitor document requests and reviews made by CASE, requiring CASE to identify each document it seeks to review and keeping track of all copies mada.
In fact, Footnote 5, pages 8 and 9, of Applicants' 3/2/87 Motion to Compel Answers to Interrogatories Sets 1987-l 1,2,3, lists the dates of inspection by CASE of the Working Files for the Results Reports asked about in Applicants' previous interrogatories.
l Applicants also know what discovery CASE has filed against it.
This is l
confirmed by Footnote 6, page 9, of Applicants' 3/2/87 Motion to Compel Answers to Interrogatories Sets 1987-1,2,3.
These two sets of questions I
l (totalling six separate questions) are inappropriate for discovery.
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CONCLUSION Applicants' discovery in its entirety is objectionable and CASE seeks a protective order with respect to all of Set 1987-9. We cannot at this time identify which, if any, of the specific questions could be answered without running afoul of the limitation on requiring production of attorney work product and mental impressions. Once the relevant discovery by CASE is complete, and CASE has completed its analysis of the data, CASE will know if independent non-lawyer or non-representative analyses have been done that may be discoverable. At that time, CASE will also, as it has in the past, be stating most of its position and bases in the form of appropriate pleadings.
If such pleadings are not filed, but CASE has completed its analyses, Applicants can at that time, but not now, file discovery requests which will of course be subject to the normal objections as to relevancy, iriappropriate inquiry of experts, attorney work product, and the like.
In 9
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l addition, to the extent CASE's pleadings disclose positions and bases not previously known to Applicants, we will be generous in allowing Applicants sufficient time to respond to the pleadings, provided the delay is not so I
i long as to prejudice CASE's rights.
in short, when the time is ripe, j
Applicants will receive the essence of that which it now seeks, to the extent it would ever be discoverable, and CASE should be permanently protected from answering the present requests. At the appropriate time, Applicants can file new discovery requests to address the questions to which it is entitled to have answers.
On numerous occasions this Board has assured CASE that, once CASE i
I receives data from Applicants, particularly given the delay in producing the data, CASE will have sufficient time (comparable to the time it would have I
had if the data had been produced when it first came into existence) to 1
analyze the data, conduct discovery on the data, and develop positions. The Applicants' discovery directly conflicts with that Board assurance, and CASE should not be required to answer any of the discovery.
Respectfully submitted, fifO
/A n a
's.) Juanita Ellis, President ASE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 Co-Representative for CASE 10 l
l ex, s E n,
y 197 JUL 24 All :47 l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OD r
OGCH-4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l
in the Matter of
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TEXAS UTILITIES ELECTRIC
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Docket Nos. 50-445 COMPANY, et al.
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and 50-446 (Comanche Peak Steam Electric
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Station, Units 1 and 2)
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1 1
CERTIFICATE OF SERVICE
)
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By my signature below, I hereby certify that true and correct copies of I
CASE'S RESPONSE TO APPLICANTS' INTERROGATORIES TO INTERVENOR (Set No. 1987-9) and MOTION FOR PROTECTIVE ORDER have been sent to the names listed below this 21st day of July
,1987_,
by: Federal Express where indicated by
- and First Class Mail elsewhere.
l Administrative Judge Peter B. Bloch Thomas G. Dignan, J r., Esq.
U. S. Nuclear Regulatory Commission Ropes & Gray Atomic Safety & Licensing Board 225 Franklin Street Washington, D. C.
20555 Boston, Massachusetts 02110 Judge Elizabeth B. Johnson Oak Ridge National Laboratory Geary S. Mizuno, Esq.
P. O. Box X, Building 3500 Office of Executive Legal Oak Ridge, Tennessee 37830 Director U. S. Nuclear Regulatory Dr. Kenneth A. McCollom Commission 1107 West Knapp Street Washington, D. C.
20555 Stillwater, Oklahoma 74075 Dr. Walter H. Jordan Chairman, Atomic Safety and Licensing i
881 W. Outer Drive Board Panel Oak Ridge, Tennessee 37830 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 1
l Chai rman Renea Hicks, Esq.
Atomic Safety and Licensing Appeal Assistant Attorney General Board Panel Environmental Protection Division 1
U. S. Nuclear Regulatory Commission Supreme Court Building l
Washington, D. C.
20555 Austin, Texas 78711 Mr. Robert Martin Anthony Z. Roisman, Esq.
Regional Administrator, Region IV 1401 New York Ave., N.W.,
Suite 600 4
U. S. Nuclear Regulatory Commission Washington, D. C.
20005 611 Ryan Plaza Dr., Suite 1000 Arlington, Texas 76011 Mr. Herman Alderman Lanny A. Sinkin Staff Engineer l
Christic Institute Advisory Committee for Reactor 1324 North Capitol Street Saf'eguards (MS H-1016)
Washington, D. C.
20002 U."5. Nuclear Regulatory Commissfon Washington, D. C.
20535 Dr. David H. Boltz 2012 S. Polk Dallas, Texas 75224 Robert A. Wooldridge, Esq.
Worsham, Forsythe, Sampels William Counsil, Vice President
& Wooldridge l
Texas Utilities Generating Company 2001 Bryan Tower, Suite 3200 Skyway Tower Dallas, Texas 75201 4
400 North Olive St., L.B. 81 j
Dallas, Texas 75201 Robert A. Jablon, Esq.
Spiegel & McDiarmid Docketing and Service Section 1350 New York Avenue, N.W.
(3 copies)
Washington, D. C.
20005-4798 Office of the Secretary U. S. Nuclear Regulatory Commission Ms. Nancy H. Williams Washington, D. C.
20555 Project Manager Cygna Energy Services j
Hs. Billie P. Garde 2121 N. California Blvd., Suite 390 Government Accountability Project Walnut Creek, California 94596 Midwest Office 104 E. Wisconsin - B Appleton, Wisconsin 54911-4897 Mark D. Nozette, Counselor at Law Heron, Burchette, Ruckert & Rothwell 1025 Thomas Jefferson Street, N. W.,
Suite 700 Washington, D. C.
20007 l
?Ld w A*, J rs.) Juanita Ellis, President CASE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 2