ML20076C804

Response to W Eddleman Motion to Compel Discovery Re Contentions 41 & 65.Motion Should Be Denied as Untimely. Certificate of Svc Encl

ML20076C804
Person / Time
Site:	Harris
Issue date:	08/19/1983
From:	Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8308230199
Download: ML20076C804 (11)

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• August 19, 1983 UNITED STATES OF AMERICA 00CKE7ED NUCLEAR REGULATORY COMMISSION USNRC BEFORE THE ATOMIC SAFETY AND LIC S b MOARDM In the Matter of ) E;_E_cr Sgq g . .

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CAROLINA POWER & LIGHT COMPANY ) Lockst*Nd54 50-400 OL and NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )

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(Shearon Harris Nuclear Power '

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Plant, Units 1 & 2) )

APPLICANTS' ANSWER TO INTERVENOR EDDLEMAN'S MOTION TO COMPEL DISCOVERY RE EDDLEMAN 41 & 65 I. INTRODUCTION In a " Motion to Compel Discovery re Eddleman 41 & 65," dated August 4, 1983, intervenor ~_'ddleman seeks an order from the Licensing Board directing Applicants to provide additional answers to interrogatories and access to documents beyond _" Applicants' Responses:.to Wells Eddleman'_s_ General Interrogatories and Interrogatories on Contentions 41 and 65 to Applicants Carolina Power & Light Company, et al. (First Set) ," May 12, 1983 (served on l

May 13, 1983) (hereaf ter " Applicants ' Responses"). Applicants oppose k

Mr. Eddleman's motion.

As indicated below, Applicants urge that the Motion to Compel l

! be denied as untimely. The remainder of Applicants' argument in opposition to the motion is presented for consideration only if the Board determines the Motion to Compel to be timely. Recognizing the i Board's preference that parties not file answers to motions to compel, I

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' Applicants have chosen not to respond to Mr. Eddleman's arguments except where they raise new matters of fact and/or law not previously addressed in Applicants' Responses.

As stated in response to a previous motion to compel by Mr.

Eddleman, Applicants recognize the liberal nature of pretrial dis-covery and provided a considerable amount of information to Mr.

Eddleman on Contentions 41 and 65, in spite of frequent doubts about the relevancy of the information sought and the considerable burden of supplying responses. See Applicants' Answer to Intervenor Eddleman's Motion to Compel Discovery re Eddleman 29 and 37B, l July 26, 1983. The reasonableness of Applicants' Responses is especially illuminated by a review of Mr. Eddleman's discovery re-quests of March 21, 1983, which are remarkable in their complexity, i

breadth and comprehensiveness. On their face these requests reflect not a directed inquiry aimed at any particular arguments in support of the contentions, but a broad brush effort to verify first hand ,

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every element of Applicants' documentation and to search far and wide i

for a wealth of tangential and unrelated information in the mere hope )

i of uncovering something useful.

In the case of Contention 41, which goes to the inspection of l pipe hanger welds, Mr. Eddleman acknowledges that Applicants already have produced 15,000 pages of documentary information. Motion to i

l Compel at 1. This must be viewed in the context of the other sub-stantial information available to Mr. Eddleman in the form of reports by Applicants and the NRC Staff which document the inspection de-ficiencies. See Attachment 1 hereto for a listing of such reports.

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The raw documentation produced by Applicants to date, especially in view of the burden of producing more, is more than adequate for Mr.

Eddleman to confirm the deficiencies already documented in Applicants' reports.

II. TIMELINESS The Motion to Compel is substantially untimely and should be denied on that ground alone. See 10 C.F.R. 52.730 (f) . While the Board has allowed the deadline for a motion to compel to be tolled where the parties are engaged in good faith negotiations which may lead to a resolution of disputes, the Board did not rule that a party could unilaterally preserve its right to file a motion to compel by filing notice of a future intent to negotiate, as Mr.

Eddleman claims to have done in a postcard on May 26, 1983.

Mr. Eddleman indicates, in his " Certificate of Negotiations re Eddleman 41 & 65 Interrogatories," August 4, 1983, that he had understood the undersigned would be unavailable for such negotiations until approximately mid-June. This was not the case, but the genuineness of this misunderstanding by Mr. Eddleman proves to be irrelevant.

Mr. Eddleman was not prepared to discuss Applicants' Responses until July 25, 1983, when the only substantive negotiation discussion was held, because apparently he had not been able previously to re-view and assimilate the information already provided.1/ It is misleading to state, as does the Certificate, that "we set" 1/ While Applicants viewed the negotiations as untimely, and so informed Mr. Eddleman, we participated in discussions nevertheless in the hope that some accommodations might be reached which would obviate further dispute.

negotiating sessions for July 1 and, after several phone calls, " set our last" negotiating session for July 25. July 25 was the only negotiating session, and Mr. Eddleman was unable to discuss Applicants' Responses previously -- and not because of difficulties in reaching Applicants' counsel by telephone. Applicants' Responses were served on May 13, and the documents produced were available for inspection on a week's notice.

Applicants do not raise this timeliness objection lightly. The imposition of a requirement for parties to attempt to negotiate their discovery disputes was a prudent action by the Board which has proved useful in discovery with the other parties. It is an abuse of the Commission's Rules of Practice, however, to claim that regulatory deadlines should remain tolled for two months when no 3

negotiations in fact are taking place. Parties are obligated.to review.

discovery responses promptly and either negotiate disputes or file a motion to compel. If a party has asked for and received too much, the result must be to move to follow-up discovery requests in the next round -- not to delay the orderly progress of the proceeding.

Applicants respectfully submit that the integrity of the pro-ceeding calls for the Board to deny the Motion to Compel as untimely.

III. GENERAL INTERROGATORY 8 Applicants do not recognize an ongoing obligation to supplement their answer to General Interrogatory 8, to which Applicants have objected. Compare Motion to Compel at 2 with Applicants' Responses

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at 6-7. This interrogatory seeks literally "everything else" Applicants will use in the adjudication of the contentions at issue.

This is a classic " catch all" interrogatory which is not appropriate discovery.

IV. CONTENTION 41 REQUESTS A. Interrogatory 41-1(b)

Mr. Eddleman apparently overlooks the fact that Exhibit 1 to Applicants' Responses provides the results of qualifications tests, which are pass / fail. The documents produced in response to Interrogatories 41-1(b) and 41-7 describe the content and scope of the retraining, as well as the minimum qualification requirements.

The actual test questions are not relevant and are kept secret to maintain the integrity of the testing program. The rephrased, new and different interrogatory suggested by Mr. Eddleman may be posed in his second-round requests. See Motion to Compel at 3.

B. Interrogatories 41-1 (d) , (e) , (h) to (k) and (y); 41-5(i) to (k)

Mr. Eddleman admits that he probably does not have time to review 50,000 drawings, but claims that he reviewed 5,000 pages of weld data reports in three working days. See Motion to Compel at 4.

Not that Mr. Eddleman's speed is the controlling issue, but Applicants seriously question the utility of any review being conducted with the haste apparently attendant to Mr. Eddleman's review of the documents already produced. In addition to the number of documents noted in Applicants' objection, the burden is enhanced by the fact that some of the drawings and work packages are in use at various

locations throughout the site.2/

In addition, the documentation already provided to Mr. Eddleman should be adequate for him to conduct a sampling of the data which underlies the reports listed in Attachment 1. Mr. Eddleman's con-cern that Applicants may have been selective in producing 12,000 pages of weld data reports is incredible. Applicants have already documented these deficiencies. The pages provided to Mr. Eddleman were all of those copies (not originals from active files) which to date have been assembled by the Carolina Power & Light QA department for its own use. Consequently, they were readily available, organized, and could be spared for the inspection process. There was no selectivity. Cf. Motion to Compel at 5.

C. Interrogatory 41-1 (z)

Applicants interpreted this interrogatory as limited to the period of time prior to submission of the June 11, 1981 report.

Otherwise, this interrogatory would be repetitious of Interrogatory 41-11. In response to Interrogatory 41-11, Applicants produced documents available at the time of Applicants' Responses. That response was complete.

Mr. Eddleman now argues that Applicants " refuse" to supply later information. Motion to Compel at 8-9. That is not true. In a supplement filed on August 17, 1983, Applicants' identified the July reports. This is timely supplementation, which was under 2/ The 55 file drawers contain work packages with such documents as drawings, revisions to drawings and craft instructions, along with the WDR's. Cf. Motion to Compel at 5.

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counsal's review at tho timo the Motion to Compel was filed.

D. Interrogatory 41-3 (e)

Applicants stand on their previous partial objection to this interrogatory, but note that Mr. Eddleman is mistaken when he states that some of the documentation for pipe hangers was produced. Only HVAC and conduit hanger documentation was produced.

V. CONTENTION 65 REQUESTS A. Interrogatory 65-4(a)

Mr. Eddleman argues that no masonry drawings were produced.

Motion to Compel at 14. This is incorrect. Masonry drawings were produced and copied at Mr. Eddleman's request.

Respectfully submitted, L A.

Thomas A. Baxter, P.C.

SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1090 Richard E. Jones Samantha Francis Flynn CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-7707 Counsel for Applicants Dated: August 19, 1983

'e ATTACHMENT 1 i

1. CP&L " Final Report, Weld Symbol Errors and Misapplication of Weld on Bergen-Patterson Pipe Hangers," Rev. 1, June 11, 1981

2. NRC IE Inspection Report 50-400/401/402/403-81-12, dated July 2, 1981

3. CP&L letter dated March 24, 1982 (CQAD 82-519)

4. NRC IE Inspection Report 50-400/82-03, dated April 28, 1982

5. CP&L letter dated September 13, 1982 (CQAD 82-1560)

6. NRC IE Inspection Report 50-400/83-05, dated February 23, 1983

7. CP&L letter dated March 31, 1983 (NRC-52)

8. NRC IE Inspection Report 83-20, dated June 30, 1983

9. CP&L letter dated July 1, 1983 (NRC-94)

10. CP&L letter dated July 1, 1983 (NRC-95) l l

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August 19, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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CAROLINA POWER & LIGHT COMPANY ) DOCKET NOS. 50-400 OL and NORTH CAROLINA EASTERN MUNICIPAL ) 50-401 OL POWER AGENCY )

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(Ehearon Harris Nuclear Power Plant, )

Units 1 & 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Answer to Intervenor Eddleman's Motion To Compel Discovery Re Eddleman 41 & 65" were served this 19th day of August, 1983 by deposit in the United States mail, first class, postage prepaid, to the parties on the attached Service List.

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Thomas A.'Baxter, P.C. .

Dated: August 19, 1983

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL and NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )

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(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

SERVICE LIST James L. Kelley, Esquire John D. Runkle, Esquire Atomic Safety and Licensing Board Conservation Council of North Carolina U.S. Nuclear Regulatory Commission 307 Granville Road Washington, D.C. 20555 Chapel Hill, North Carolina 27514 Mr. Glenn O. Bright M. Travis Payne, Esquire Atomic Safety and Licensing Board Edelstein and Payne U.S. Nuclear Regulatory Commission Post Office Box 126D7 Washington, D.C. ?0555 Raleigh, North Carolina 27605 Dr. James H. Carpenter Dr. Richard D. Wilson Atomic Safety and Licensing Board 729 Hunter Street U.S. Nuclear Regulatory Commission Apex, North Carolina 27502 Washington, D.C. 20555 Mr. Wells Eddleman Charles A. Barth, Esquire (4) 718-A Iredell Street Myron Karman, Esquire Durham, North Carolina 27705 Office of Executive Legal Director U.S. Nuclear Regulatory Commis~sion Richard E. Jones, Esquire Washington, D.C. 20555 Vice President and Senior Counsel Docketing and Service Section (3) Carolina Power & Light Company Office of the Secretary Post Office Box 1551 U.S. Nuclear Regulatory Commission Raleigh, North Carolina 27602 Washington, D.C. 20555 l Dr. Phyllis Lotchin Mr. Daniel F. Read, President 108 Bridle Run Cli ANGE7EEP ?

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. Chapel Hill, North Carolina 27514 57 OL7 .W ay.c.r odLe 3S t r e e t R a leigh., N o.r th .C'aro lina 2 7 60 6 Dr. Linda Little Governor's Waste Managenent Board 513 Albenarle Building 325 North Salisbury Street Raleigh, North Carolina 27611

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Service List Page Two Bradley W. Jones, Esquire U.S. Nuclear Regulatory Commission Region II 101 Marrietta Street Atlanta, Georgia 30303 Ruthanne G. Miller, Esquire Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

-Karen E. Long, Esquire Public Staff - NCUC Post Office Box 991 Raleigh, North Carolina 27602 4

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