ML20236E673
| ML20236E673 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/22/1987 |
| From: | Roisman A Citizens Association for Sound Energy |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#387-4101 ALAB-742, OL, NUDOCS 8708030044 | |
| Download: ML20236E673 (11) | |
Text
7-l Dh/h DX hT IE"
" :r l
UNITED STATES NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Appeal Boar'47 J124. A8 :27 '
to 0
In.the Macter of
)
- )
TEXAS UTILITIES ELECTRIC COMPANY,
)
Dkt. Nos. 50-445, 4 4 6 - (hi,
q et al.,
)
)
(Comanche Peak Steam Electric Station
)
j Units 1 and 2)
)
CASE OPPOSITION TO PETITION FOR DIRECTED CERTIFICATION The various opinions of this Board make clear that only the most extreme prejudice or the most significant and unique legal issues that disturb the basic structure of a licensing proceeding i
will justify an interlocutory appeal.
E.c.,
Public Service Company of Indiana (Marble Hill), ALAB-405, 5 NRC 1109, 1192 (1977).
This most recent attempt of Applicant Texas Utilities Electric Company (Petitioner) to interject this Board into the ongoing licensing proceeding for Comanche Peak is a classic example of the kind of discovery dispute that this Board has routinely and properly refused to consider on an interlocutory appeal.
Petitioner' objects because documents of Tex-La (a co-applicant) that have been provided to selected representatives of CASE, pursuant to a discovery request, and may be provided to selected representatives of the Staff (see Protective Order, p.
2, fn. 2) are only being provided to all counsel for TUEC in this
)
1 870B030044 870722
-PDR ADOCK 05000445 G
PDR TDh J
8 i
I proceeding and not to any counsel who represent TUEC in q
litigation in opposition to Tex-La and not to TUEC employees.
The alleged error.in this procedure, designed to protect Tex-La's i
claimed work-product privilege, is not with the limited access to the documents at this time but to the perceived damage that could occur in the future.
But these hypothetical future problems are f
just that, hypothetical, and the terms of the Protective Order deliberately leave to a future date their resolution.
First, Petitioner raises the spectre of CASE, armed with j
I these documents, using them in the hearing against Petitioner and Petitioner's lawyers being defenseless against such an assault because they cannot disclose the contents of the documents to
]
l l
their client's employees.
Petitioner ignores the fact that the I
i Protective Order forbids the disclosure of the documents or their contents to "any other person except as expressly permitted by i
this order or as may otherwise be ordered by the Board upon l
motion filed with the Board."
Protective Order, p.
4, 1(3).
The only authorized persons are CASE representatives, Staff employees, and TUEC attorneys.
Id.,
pp. 2-3.
The Licensing l
Board is not included.2 Second, Petitioner projects terrible consequences which the Staff will suffer if the documents or their contents cannot be 1
CASE and Tex-La deliberately left out of the Protective 1
Order any resolution of the process of disclosing documents l
to the Board preferring to wait and see if CASE believed there was a need for such disclosure and then addressing that problem.
CASE has not yet decided whether it will want to use the documents in the hearings or otherwise disclose them to the Licensing Board.
2
o discussed by the Staff with TUEC employees.
The short answer is j
that obviously the Staff does not agree since this argument was not advanced below by the Staff (or Petitioner) and Staff has not sought any review by this Board.
As far as we know Staff has not even obtained the documents, much less decided it needs to quiz l
TUEC's employees about them.
In short, Petitioner here seeks review of the decision of i
i i
the Licensing Board based on a series of "what if" worst case assumptions.
This Board has previously expressed its unwillingness to answer abstract and hypothetical questions, particularly ones dealing with the delicate issue of disclosure i
of confidential information.
Texas Utilities Generatina Co.
(CPSES), ALAB-714, decided Feb. 24, 1983, slip op. at 15, 18-19, stayed CLI-83-6, decided March 4, 1983, review cranted CLI-83-18, decided June 30, 1983.
Northern States Power (Prairie Island 1 &
2), ALAB-419, 6 NRC 3, 6 (1977), and ALAB-455, 7 NRC 41, 54 (1978), remanded on other arounds sub nom. Minnesota v. Nuclear Reculatory Commission, 602 F.2d 412 (D.C. Cir. 1979).
That admonition is nowhere more pertinent than here where Petitioner raises issues about the prejudice it will suffer if its employees are not allowed to see documents which its lawyers have the right (which they have not exercised) to see, the. limitations the Staff will experience although the Staff asserts no such limitations, and the advantage CASE will have if it uses the documents in the.
hearing, although CASE does not yet have authority to use the documents in the hearings.
3
?
.s:
1 1
In this case it is particularly important to wait until f
i either CASE or the Staff seek leave to disclose a particular l
i document to decide whether disclosure should continue to preclude TUEC employees.
The determination under 10 CFR 52.740(b) (2) is inherently a balancing test between competing public policy considerations, including the need'for the Licensing Board to 1
have all information required to make its extremely important l
decisions, the need of the litigant for whom the data is.
important to make its case, and the rights of the party whose 1
l work product is involved.
These factors, which already in this haering have been balanced on numerous occasions in deciding on 1
the release of data and the imposition of confidentiality limitations on the names of informants, whistleblower depositions, and alleged proprietary data, are best balanced when concrete documents and data are presented and can be fully reviewed by the Licensing Board and/or this Board.
This will ensure that the controversy is both narrow and focussed.
Even if the issues raised by Petitioner were not inappropriate hypothetical issues, they still would be inappropriate for review here because they are insubstantial and do not disturb the basic structure of the licensing proceeding.
The best measure of the insubstantiality of the pending petition is the length of time it has taken Petitioner to file it.
The alleged momentous issues involved here have been ripe for reconsideration by the Licensing Board (no request for reconsideration has been filed) or for a petition for directed 4
l
I l
certification since November 28, 1986,8 when the Licensing Board ruled (Memorandum and Order (Discovery of Tex-La Documents), slip op.
p.
5): 8 i
i That CASE shall write and execute a protective agre.ement, pursuant to the attached memorandum.
The executed agreement shall become the Order of this Board.
That promptly after the protective order is duly executed, Tex-La Electric Cooperative of Texas, Inc. shall promptly make available to CASE, in Washington, D.C.
or another mutually agreed site, all of the Southern Engineering documents that are the subject of this discovery request.
This order followed full briefing by Tex-La and Petitioner on the issue of the appropriateness of the type of Protective Order entered here.
See separate responses of Tex-La and " Applicants" to CASE's Motion to Compel, both filed on November 4, 1986.
As long ago as March 12, 1987, the Licensing Board executed the Protective Order, the terms of which contained the already articulated standard that Petitioner complains of here, i.e.,
access to the discovered documents for all TUEC lawyers in this proceeding except exclusion of TUEC employees or any attorneys Petitioner seeks to justify this delay by asserting that it 2
spent over three months (actually over seven months) attempting "to determine whether (the Protective Order]
could somehow be accepted as tolerable if nonetheless erroneous."
- Petition, p.
16, fn. 16.
Surely this is the epitome of frivolous argument:
seven months to decide if the Licensing Board order was " tolerable"!
The period of negotiation between counsel for Tex-La and 3
CASE referred to by Petitioner (Petition, p.
- 3) occurred only after the Licensing Board ruled that the documents should be produced pursuant to a protective order to be developed between Tex-La and CASE.
i 5
l l
t representing it in litigation in opposition to Tex-La.*
' Petitioner's lack of due diligence refutes its assertion that the issues raised here are of great significance in the hearing or substantially alter its b,asic structure.
Further evidence of the insincerity of Petitioner's claim of injury is that Petitioner has not sought to obtain the documents directly from Tex-La, which is a party to this proceeding.
Instead Petitioner asks to see documents that Tex-La is producing to CASE and about which Petitioner expressed no interest until CASE sought them.
Petitioner argues that CASE's need to see these alleged work-product-privileged documents is the same as Petitioner's and thus if CASE can see them so can Petitioner.
- Petition, p.
10.
I This roundabout and delayed effort to see the documents is itself based on a fundamental error.
The documents in question contain information obtained by Tex-La consultants while viewing Petitioner's facility and talking to employees of Petitioner.
See Petition, p.
2, fn.
1, and Appendix A to Protective Order.
1 Petitioner's claim that it should have been allowed to file 4
some response to the proposed protective order (Petition, p.
8, fn. 6) is further illustration of its lack of diligence.
The Licensing Board made clear in its Order of November 28, 1986, that if CASE and Tex-La could submit a. protective agree: rent that both had executed "it shall constitute an Order of this Board."
Memorandum and Order, supra at p.
4.
Despite this advance notice that a subsequent approval of the protective agreement would be a ministerial act, Petitioner did not seek in advance a right to participate in the ministerial approval process.
This process was not the equivalent of filing a motion but rather was filing a previously requested and approved order for Board signature and entry.
6
{
CASE is looking for facts that are not readily, if at all, available to it, and Tex-La's consultants have gathered such facts.
Petitioner is seeking information that it already j
possesses, i.e.,
it knows what exists at its facility and it is deemed to know what its employees have said.
Thus its need to see the data is not as great as CASE's.
On the other hand, as Petitioner points out, it way have a special basis, not available to CASE, to claim access to some of this data under Rule 26(b) (3) j of the Federal Rules of Civil Procedure (to the extent it is
{
applicable here).
Petition, pp. 11-12, fn. 12.
Thus the reason for CASE to have access to data that discloses eyewitness
]
accounts of plant hardware, documents, and conversations is far different from the reason the plant owner would advance for
)
I l
access to such data.
Petitioner has never sought discovery from l
Tex-La of this data and the Licensing Board has never had to rule on such a request or balance the factors involved.
Until Petitioner seeks such discovery and is rebuffed,8 this Board-has Requiring Petitioner to seek its own discovery and not 5
attempt to ride on the coattails of' CASE's discovery also helps to protect the main purpose of the licensing hearing, i.e., resolving the contentions and deciding whether the plant is safe.
As the Licensing Board found (Memorandum and Order, supra, p.
3), the issue in discovery sought by CASE is whether the data is relevant to the admitted safety contention.
Squabbles among joint applicants are not for the Board to resolve in the context of CASE discovery.
The Protective Order provides CASE with the data it'needs and leaves Petitioner free to seek to obtain the data from its co-applicant, but not from CASE, by any lawful means.
The Protective Order prevents CASE from disclosing the data and allows the Staff to see the documents if they want, but without further disclosure.
There is no ruling that Petitioner cannot obtain the documents from Tex-La -- only that it cannot obtain the documents from CASE.
7
indicated it is particularly reluctant to act and then only if a genuine emergency exists.
Toledo Edison Co. (Davis-Besse), ALAB-
{
297, 2 NRC 727, 729 (1975).
l The issues raised are not ripe for review and Petitioner at this time is suffering no discernible disadvantage and certainly i
no exceptional disadvantage by CASE having access to data l
l l
gathered by Tex-La about the Petitioner's facility, which data l
Petitioner has never sought to obtain from Tex-La.6 This Board l
l should once again follow the teaching of Arizona Public Service 1
Co. (Palo Verde 2 & 3), ALAB-742, 18 NRC 380, 383 and fn. 5 l
l (1983), and summarily reject the Petition.
Accord, Texas i
1 l
Utilities Electric Co. (CPSES), Appeal Board Order, November 8, 1985.
Respectfully submitted, l
~
d
/cQ_
'-d ANTHONY Z/ OISMAN l
Suite 60W
(
1401 New lork Avenue, NW Washington, DC 20005 (202) 628-3500 Counsel for CASE Dated:
July 22, 1987 Petitioner, while admitting it did not and could not 5
challenge whether CASE is entitled to the documents (having not contested it below), nonetheless challenges the correctness of that decision.
Compare Petition, pp. 2-3, fn.
2, and Petition, pp. 9-10.
Petitioner had it right the l
first time.
1 8
d'
-5c:
,1 1
x l.I, i
. 2 4:t
.i..
UNITED STATES NUCLEAR REGULATORY COMMISSION q
Before the Atomic Safety and Licensina Board '87 JUL 24 A8 :27
.,h 00L*
In the' Matter of
)
)
1 TEXAS UTILITIES ELECTRIC COMPANY,
)
Dkt. No. 50-445, 446-J et al.,
('
)~
t
)
(Comanche Peak Steam Electric Station
)
Units l'and-2)
)
1 CERTIFICATE OF SERVICE I hereby certify that CASE OPPOSITION TO PETITION FOR
]
DIRECTED CERTIFICATION was served today, July'22, 1987, upon the o
l following by first class mail, postage prepaid, or by hand where i
marked with an asterisk
(*), or by Federal Express where marked I
by two asterisks (**).
Alan S. Rosenthal, Chairman Atomic Safety & Licensing Appeal Board j
US Nuclear Regulatory Commission i
1 Washington, DC 20555 Howard A. Wilber L
Administrative Judge l
Atomic Safety & Licensing Appeal' Board US Nuclear Regulatory Commission Washington, DC 20555 1
Thomas S. Moore Administrative Judge Atomic Safety & Licensing Appeal Board US Nuclear Regulatory Commission
(
Washington, DC 20555 i
Peter B.
Bloch J
Administrative Judge U.S. Nuclear Regulatory Commission Washington, D.C.
20555 t
/
m--_-__________
4 i
Dr. Kenneth A. McCollom l
1107 West Knapp Stillwater, OK 74075 j
)
Dr. Walter H. Jordan l
881 West Outer Drive Oak Ridge, TN 37830 l
I Elizabeth B.
Johnson Oak Ridge National Laboratory P.O. Box, Building 3500 Oak Ridge, TN 37830
(
l Docketing and Service Section J
Office of the Secretary
,/
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Geary S. Mizuno, Esq.
Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 1
Robert A. Wooldridge, Esq.
Worsham, Forsythe, Sampels, and Wooldridge 2001 Bryan Tower, Suite 3200 Dallas, TX 75201 Thomas G. Dignan, Jr.
Ropes & Gray 225 Franklin Street Boston, MA 02110 W. G. Counsil Executive Vice President Texas Utilities Electric Co.
Skyway Tower, 25th floor 400 North Olive Street Dallas, TX 75201 Juanita Ellis, President citizens Association for Sound Energy 1426 South Polk Dallas, TX 75224 Billie P. Garde Government Accountability Project - Midwest Office 3424 North Marcos Lane Appleton, WI 54911 i
.y
,+
4 a
William Burchette' 3
Foster DeReitzes i
Heron, Burchette, Ruckert & Rothwell j
f 1025 Jefferson Street, NW l
Suite 700 t '[
Js Washington, DC 20007 i
,8 s
Robert A. Jablon
.)
Spiegel & McDiarmid.'
.g 1350 New York Ave., NF-
)
Suite 1100 4[N h,
Washington, DC 20005
}
A-William W. Vernon-1'
+
E~'
Blake Tartt Fulbright & Jaworski q.;-
1301 McKinney Street h,; *
'l j
Houston, TX 77010 e
i
)
/
1 i
c sid$A, /l wm j
Antho Z.
Roisman L
\\
f
?
9
.v el 6.
i j.
.e f~
"\\'
1 N
V
)
l 1
l
.e b
t t l
't
.4 j
a q
j.
e,.
.i