ML20236E658

Opposition to Consolidated Intervenors Request for Protective Order in Answering Applicant Interrogatories to Consolidated Intervenors (Set 1987-1).* Certificate of Svc Encl

ML20236E658
Person / Time
Site:	Comanche Peak
Issue date:	07/23/1987
From:	May J ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#387-4105 CPA, NUDOCS 8708030039
Download: ML20236E658 (7)

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. July 23,91987

, Filed:

'87 JM. 27 P3 :42 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION r.n before the bm:- i ATOMIC SAFETY AND LICENSING BOARD -

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In the Mattsr of )

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TEXAS UTILITIES ELECTRIC )

COMPANY et al. ) Docket No. 50-445-CPA -

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l (Oomanche Peak Steam Electric )

Station, Unit 1) )

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l OPPOSITION TO CONSOLIDATED INTERVENERS' REQUEST FOR A PROTECTIVE ORDER IN ANSWERIWG " APPLICANTS' INTERROGATORIES TO CONSOLIDATED INTERVENERS (SET NO. 1987-1)"

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FACTUAL BACKGROUND 00 March 18, 1987, the " Interrogatories to Consolidated Interveners (Set 1987-1)" (the " Int.errogatories") were propounded. The Interveners submitted. responses to the Interrogatories separately. CASE provided its preliminary responses on June 6, 1987 and supplemented those responses on July 7, 1987. CASE's Response to Applicants' Interrogatories to Consolidated Interveners (Set No. 1987-1) and Motion for a Protective Ordery 6/6/87; CASE's Supplementary Response to Applicants' Interrog& tories to Consolidated Interveners (Set No. 1987-1) and Motion for Protective Order, 7/6/87, (hereinafter coll ectively " CASE Responce") . Meddie Gregory responded on June 15, 1987. Meddie Gregory's Response to 870B030039 870723 PDR ADOCK 05000445 PDR

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Applicants' Interrogatories to Consolidated Interveners and .

Motion for a Protective Order, 6/15/87, (hereinafter " Gregory Response"). In many instances, CASE and Meddie Gregory j incorporated the responses provided by their co-intervenor into their answers.

Both CASE and Ms. Gregory have moved for protective orders, the apparent primary l intended purpose of which is to guard them against having to go into more extensive detail l than contained in their submitted answers. We submit that I

the requested protective orders should not issue, inasmuch as they are unnecessary and unwarranted by law, l

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I l E 1 Interveners have also objected to certain I interrogatories by claiming that they seek a " legal l conclusion." To the extent they seek a protective order I regarding these objections, their request is frivolous. It i is settled that parties may properly inquire about legal I

conclusions and theories that apply to the facts of the case.

E.a., Kerr-McGee Chemical Corporation (West Chicago Rare Earths Facility), LBP-85-38, 22 NRC 604, 625 (1985). In view of both Interveners' representations that they have answered l the questions posed to the best of their abilities, we undarstand that they currently have no law to advance in response to these questions; not that they refuse to cite such law. Any other understanding would be in direct I

contravention of the decided cases such as Kerr-McGee as well as of their oft-repeated conception of the duty to keep this Board specifically, and NRC generally, aware of pertinent matters regarding the safety of the Comanche Peak plant.

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The essence 2 of the Interveners' arguments in support of I their request ~for a protective order is their contention that they should not be required to undertake extensive and burdensome investigations in order to answer the admittedly pertinent questions posed by the Interrogatories. We agree.

1 It is well settled that, "[ijr. responding to discovery requests, a party is not required to engage in extensive independent research," Pennsylvania Power & Licht Co.

(Susquehanna Steam Electric Station, Units 1 and 2), ALAB-l 613, 12 NRC 317, 334 (1980). See. .also Houston Lichtina & l 1

l Eower Co. (South Texas Project, Units 1 and 2), LBP-80-11, 11 1

NRC 477, 478 (1980); Pennsylvania Eower & Licht Co. )

1 (Susquehanna Steam Electric Station, Units 1 and 2), LBF 18, 11 NRC 906, 911 (1980). These principles certainly apply to all the parties, Interveners as well as Applicants. As we 2 Meddie Gregory also advances the dubious argument that she may not be required to respond to discovery regarding her knowledge of relevant facts until after the Applicants have provided some additional information which she believes is required of them. Gregory Response at 3.

Such an argument is directly contrary to the controlling law, however, Pennsylvania Power & Licht Co. (Susquehanna Steam i

Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 339-340 (1980); Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1245 (1984);

Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Unit 1), ALAB-686 at 39 (unpublished, 1987) (Applicants "may fill any gaps in their knowledge of the interver.oru ' case through discovery against the interveners."), and its patent infirmity may have informed her decision to answer the questions to the best of her ability. Gregory Response at 4.

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understand the Interveners' answers, moreover, they have each j i

attempted in good faith to submit all the information they i I

currently possess in response to the questions. Egg 2, e . a t , j Gregory Response at 4; CASE Response (6/6/87) at 4) CASE i

Response (7/6/87) at 9, 122, 125, etc. That is properly all  ;

that was required of them, nnd for this reason we do not 1

Jntend to seek to compel them to undertake the sort of j extraordinary ' investigations, analyses or studies such as l they apparently feared our questions entailed. )

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Since the Regulations require that any motion to compel j with respect to Interveners's responses be filed today as 1

well, 10 C.F.R. 5 2.740(f), they cannot be at risk of ]

compulsion to do that which they seek to be protected against. Absent any uuch threat of compulsion, their motions are either moot or devoid of the showing required 3 by the Rules of' Practice. Thus, inasmuch as the rules of equity do not allow for such protection from a non-existent burden, the 3A protective order may only be granted to the extent that " justice requires (it) to protect a party or person fron annoyance, embarrassment, oppression or unaue burden or expense." 10 C.F.R, S 2.740(c). In making this determination the court is " guided by equitable considerations" of protecting the parties. Finkelstein v.

Boylan, 33 F. Supp. 657, 658 (S.D N.Y. 1940); cfz Tahoe InsuraDgp Co. v. Morrison-Knuds.ot Co.. Tnc., 84 F.R.D. 362 (D. Idaho, 1979). Since, however, "the primary requirement for equitable relief is that it will be effective in accomplishing its ren.edial purposen," United States v. State of Texas, 523 F. Supp. 703, 735 ( E . .O . Texas, 1981), no protective order should issue unless the moving party faces compelled disclosure. Such is not the case hero.

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proper course is to deny Interveners' requests for protective i orders.

TEXAS UTILITIES ELECTRIC COMPANY For the Owners of CPSES jiit nc- th J

Wi 14am S. Eggeling Jeffrey H. May l ROPES & GRAY ,

225 Franklin Street Boston, Massachusetts 02110 .

,i Attorneys for Texas Utilities Electric Company l

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C2RTIFICATE OF SERVICE

'87 JL 27 P3 :42 I, Jeffrey H. May, hereby certify that on July 23, 1987, I W

made service of " Opposition to Consolidated Interveners' Rdquest

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for a Protective Order in Answering ' Applicants Interrogatories to Consolidated Interveners (Set No. 1987-1)'" by mailing copies thereof, postage prepaid, to:

1 Peter B. Bloch, Esquire Mr. James E. Cummins l Chairman Resident I11spector Administrative Judge Comanche Peak S.E.S.

Atomic Safety and Licensing c/o U.S. Nuclear Regulatory Board Commission l U.S. Neclear Regulatory P. O. Box 38 I

Commission Glen Rose, Texas 76043 Washington, D.C. 20555 Dr. Walter H. Jordan Ms. Billie Pirner Garde )

,, Administrative Judge GAP-Midwest Office  ;

881 W. Outer Drive 104 E. Wisconsin Ave. -B  ;

Oak Ridge, Tennessee 37830 Appleton, WI 54911-4897 Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory l Commission Commission l Washington, D.C. 20555 Washington, D.C. 20555 l

! Lawrence J. Chandler, Esquire Mrs. Juanita Ellis l Office of the Executive President, CASE l

Legal Director 1426 S. Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C. 20555 Renea Hicks, Esquire Ellen Ginsburg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel P. O. Box 12548 U.S. Nuclear Regulatory Capitol Station Commission Austin, Texas 78711 Washington, D.C. 20555

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Anthony Roisman, Esquire Mr. Lanny A. Sinkin l Suite 600 Christic Institute 1401 New York Avenue, N.W. 1324 North Capitol Street Washington, D.C. 20005 Washington, D.C. 20002 Dr. Kenneth A. McCollom Mr. Robert D. Martin Administrative Judge Regional Administrator 1107 West Knapp Region IV

[ Stillwater, Oklahoma 74075 U.S. Nuclear Regulatory Commission Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 Elizabeth B. Johnson Geary S. Mizuno, Esquire Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P. O. Box X, Building 3500 U.S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Washington, D.C. 20555 Nancy H. Williams 2121 N. California Blvd.

l Suite 390 Walnut Creek, CA 94596 l f

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. sir ,- Ai Jeffrey j H.* May[

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