ML20127M626

Forwards 840830 Final Rept of Facility Qa/Qc Const Inspector Review Panel & Four Documents Re Allegation of Harassment by Qa/Qc Inspector in Support of ASLB Denial of Eddleman 850507 Motion.W/O Encl.Svc List Encl.Related Correspondence

ML20127M626
Person / Time
Site:	Harris
Issue date:	05/20/1985
From:	Oneill J CAROLINA POWER & LIGHT CO., NORTH CAROLINA MUNICIPAL POWER AGENCIES, SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Bright G, Carpenter J, Kelley J Atomic Safety and Licensing Board Panel
References
CON-#285-103 OL, NUDOCS 8505230319
Download: ML20127M626 (8)

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May 20,- 1985 .

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James L. Kelley,. Esquire _Mr. Glenn O. Bright l Chairman .

Atomic _ Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. James H. Carpenter Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 In the Matter of Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency-(Shearon Harris Nuclear Power Plant)

Docket No. 50-400 OL Administrative Judges Kelley, Bright and Carpenter:

During a conference call on-May_7, 1985, counsel for Mr.

Eddleman petitioned the Board to compel discovery of documents or issue a subpoena to compel the production of documents. Tr.

7556-67.- -The documents in question were described by counsel for Mr. Eddleman as (1) " documents related to [thej Inspector Review Panel, its final report, the audit or report of Mr.

Parks Cobb with. respect to that panel's work and the underlying documents behind that report," and (2) "the report and associ-ated_ documents _with respect to the individual charge of ha-rassment by a quality assurance or construction inspector at the Harris site." Tr. 7559; 7563. Mr. Eddleman alleges that 8505230319 850520 PDR ADOCK 05000400 j

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-SHAw, PlTTM AN, PoTTs & TROWBRIDGE

- A PARTNER $ map GNCLUDING PROFES5CNAL CORPORATCNS

' Letter to the Administrative Judges May 20,1 1985 Page 2 l

I these documents are relevant to litigation of Eddleman Conten- l

tion 41-G. The Board denied Mr. Eddleman's motion, subject to l its review of the Inspector Review Panel Report and papers relating to the individual claim of harassment. Tr. 7580. As directed by-the Board, enclosed are copies of the " Final Report SENPP QA/QC-Construction Inspector Review Panel," dated August 30, 1984,'and four documents, consisting of a total of eight pages, relating to an investigation of an allegation of "ha-rassment" by a QA/QC inspector. See Tr. 7581. .

.These documents are transmitted to.the Board members sole-ly for the purpose of an in camera review to confirm the Board's preliminary determination that such documents need not be produced by Applicants. These documents are not to be con-sidered evidentiary in any way.' Since these documents will not.

be part-of the record and will.not-be viewed by other parties, Applicants ask that_they be returned after the Board has com-pleted its review to avoid any concern regarding an ex parte communication.

There is no question, however, regarding the propriety'of the procedure adopted by the Board. Pursuant to Rule 26 of the Federal Rules cf Civil Procedure, a court may require that documents be submitted to it for a determination of any ques-tion as to privilege, relevancy or materiality before the mov-ing party will be permitted to inspect them. As clearly stated -

by a District Court in Alabama in Diamond v. City of Mobile, 86 F.R.D. 324, 327 (S.D. Ala. 1978), "the overwhelming case au-thority on this subject allows a judicial in camera inspection of the materials to resolve any relevancy dispute." See, e.g.,

Holmes'v. Gardler, 62 F.R.D. 70 (E.D.Pa. 1974); Frankenhauser

v. Rizzo, 59 F.R.D. 339 (E.D.Pa. 1973); Wood v. Breier, 54 p

F.R.D. 7-(E.D.Wis. 1972); 4A J. Moore, J. Lucas and D. Epstein, Moore's Federal Practice 5 34.19121 (2d ed. 1984).

Applicants opposed Mr. Eddleman's motion to compel produc-tion of documents because-the motion was untimely and the docu-ments are not relevant to the contention being litigated. See Tr. 7567-77. We summarize below the arguments made during the conference call and provide citations to the record where ap-i propriate.

Applicants responded to Mr. Eddleman's request for produc-tion of documents regarding Contention 41-G on February 19, 1985. " Applicants' Response to ' Wells Eddleman's Request for Production of Documents' (Contention 41-G)," dated February 19, i- 1985. All documents relating to the contention responsive to Mr.-Eddleman's request'had been made available for inspection

-by both Mr. Eddleman and his counsel Mr. Guild on February 18, 1985. A significant number of documents were copied for Mr.

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SHAw, PITTMAN, PoTTs & TROWBRIDGE A PARThERS***" 8NCLUDING PRorESSiONAL Con *CMAf TONS I

Letter to the' Administrative Judges May 20, 1985 Page 3 Eddleman and made available to him or his counsel prior to the end of the discovery period on March 1, 1985.

.A' motion to. compel must be filed within ten days after the date of the response or failure of'a party to respond, concern-ing which the party objects. 10 C.F.R. 5 2.740(f). There were no ongoing " negotiations" with respect to.the adequacy of docu-ment production. Thus, Mr. Eddleman's motion to compel was un-

-timely by almost two months.

The~ Inspector Review. Panel Report was not requested by Mr. '

Eddleman'in his request for documents, although its existence had been identified in an " Affidavit of A. Parks Cobb, Jr.,"

which was filed in support of " Applicants' Response to Late-Filed Contentions of Wells Eddleman and Conservation Coun-cil of North Carolina Based on the Affidavit of Mr. Chan Van Vo," dated November 13, 1984. Portions of the Inspector Review Panel Report that related to two of Mr. Chan Van Vo's concerns were ; produced ;Ln February 1985 and copies of such portions were

'made for Mr. Eddleman's counsel, along with other underlying

' documents relating to that: concern. See Inspector Review Panel Report, Appendix B at C-23 and C-24.

The documents regarding the QA/QC inspector who claimed

" harassment" by his supervisor (not related to raising. safety concerns) are not relevant to Contention 41-G -- as discussed below -- and were not requested in Mr. Eddleman's Request for Production of Documents. If Mr. Eddleman believed that he might have convinced the Board to allow discovery regarding al-legations of harassment by employees other than Mr. Chan Van Vo, he could have brought that issue before the Board by re-questing such information.through discovery and could have sought to compel discovery if Applicants objected. Instead, Mr..Eddleman sought-reconsideration on the scope of the admit-ted contention and of discovery -- which motion was denied.

The identification of a document by a deponent in depositions authorized after the close of discovery does not cure an un-timely request for documents -- particularly where the informa-tion is disclosed in response to questions outside of the scope of the issue being litigated.

The documents sought by Mr. Eddleman utterly lack rele-vance to litigation of Contention 41-G. The Board has already rejected Mr. Eddleman's view of the scope of discovery regard-

'ing Contention 41-G on a number of occasions.- In rejecting Mr.

.Eddleman's Motion for Reconsideration, the Board dismissed Mr.

Eddleman's arguments for expanded discovery:

Mr. Eddleman's analysis of the Van Vo complaints leads him to conclude that they "will require

I SHAw, PITTM AN,- PoTTs & TROWBRIDGE

~

A PARTNE.nSecP iMCLUOiNG paorr$SsONAL ComponAriONS .

Letter to theLAdministrative Judges May 20, 1985 PageL4~

discovery-comparable to.that-required for the original contention 41-G." That is.not correct.

While it may be necessary to look somewhat be-

-yond the Van Vo. charges to place them in con-text,'any hearing would focus on those' charges,

-not on an alleged-pattern of harassment.

Discovery would be similarly limited.

Memorandum and Order-(Ruling on Contentions Concerning Diesel Generators, Drug Use.and Harassment at the Harris Site) (March 13,:1985) at 10 (emphasis added). In its Memorandum and Order (Ruling on Certain Safety Contentions and Other Matters)

-(January 14,-1985) at-4, the Board stated clearly:

This~ contention should be understood as focusing on the reasons particular personnel actions were taken against a particular individual. The par-ties' attention should focus on particular inci-dents alleged in the Van Vo affidavit.

~

In addressing the relevance of the Inspector Review Panel Report and any underlying documentation, counsel for Mr.

Eddleman again argued that the scope of discovery should go to

" retaliatory. motive".and_any evidence of a " pattern" of

. harassment -- notwithstanding the-Board's ruling on these argu-ments previously. Tr. 7559-60. He first argued that the docu-ments " reflect how CP&L responded specifically-to Chan Van Vo's concerns * *

• that were treated by the inspector review panel."- Tr. 7559. But those specific sections of the report i have already been provided to Mr. Eddleman. -Next, he argued-the-documents are relevant because they demonstrate "on retal-iatory motive, how CP&L responds to the safety concerns gener-l ally, what~its practice is with respect to the safety concerns l' expressed by the inspectors whose concerns were considered by I that review panel, demonstrating a pattern." Id. Since Mr.

Chan Van Vo was not a QA/QC inspector, even if some sort of

, pattern.were discerned from the Inspector Review Panel' Report,

(; the relevanceLis not apparent.--However, its is clear from a

.perusallof the Report that the concerns expressed by QA/QC and L 'CI inspectors. cover a broad spectrum of issues and establish no-

! .- pattern. The third point asserted by.Mr. Guild is that the j' documents allegedly " reflect.CP&L's knowledge and response to the. existence of harassment, discrimination and retaliation concerns raised by site employees, again bearing on the exis-tence of retaliator motive in Van Vo's case." As the Board can judge for itself, the allegation is simply not true.

In aiguing the relevance of the investigation of an "ha- ,

rassment" complaint, Mr. Guild maintains "the existence of a complaint of harassment by an inspector bears on both the 1

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SHAW, PITTM AN, PoTTs & TROWBRIDGE A PARTNCRSMP eNCLUDING DAOFESS10NAL ComponAftONS

-Letter'to the Administrative Judges May-20,~1985 Page'5-

< existence of' retaliatory motive in Mr. Van Vo's case, and by

. way of : demonstrating the Company's approach to resolving con-cerns of harassment, the existence of other instances of ha-rassment bearing on his; case in Mr. Van Vo's case." The'first problem with Mr. Guild's argument is his misuse:of the word

" harassment",, The investigation of " harassment"'as reflected in the documents which Mr. Eddleman~ desires to be produced was not an allegation of " harassment" in the sense of " adverse ac- .

tion against some employee who raised safety concerns in some fashion." Tr. 2725 (Kelley). As Mr. Guild is well aware from the deposition, the allegation of." harassment" in this instance related-to a supervisor who insisted that the employee stay'in his work. place'and do his job. There is clearly no relevance 4 here to the Chan Van Vo allegations -- even if we accepted Mr.

Eddleman's expanded scope of discovery.

'The Board asked that Applicants state their position regarding why the documents should be kept confidential even if

- the Board f;nds that they are not discoverable.- As a-general matter, if Applicants' documents need not be-disclosed to the public.and in particular to adverse parties, Applicants'have.an. -

, interest-in maintaining some degree of confidentiality. With respect to the documents regarding the allegation of "ha-

. rassment" by an employee, Applicants have an interest in protecting the confidentiality of.the employee -- who provided

, information to a Quality Check investigator on a confidential basis. Disclosure of the individual's name and the circum-stances of his. allegations could cause him embarrassment or ad-versely reflect on his future employment opportunities. The l confidentiality of the Inspector _ Review Panel Report raises-different, but also fundamental questions. The information obtained from the inspectors was obtained on a confidential

basis. Although the report does not identify individuals by i.

name, it has been closely held within management as-a tool to

. allow management decisions to improve the QA/QC program and to

' ensure that some of the problems that.have been identified at 1

other utility projects have not surfaced at the Harris site.

If the.results of critical self-evaluations were to be made public,- the quality of.such reviews and the frankness of com-ments in reports of such reviews would suffer greatly. While the Inspector Review Panel Report has been available for

inspection by Inspection and Enforcement staff members, it was

- not provided to the NRC. Applicants have.an interest in main-taining.the confidentiality of their self-appraisals. In cer-tain cases that interest may be overtaken by the NRC's interest in ensuring relevant information is made available in the liti-gation of admitted. contentions. But, where, as here, the information sought is not relevant, Applicants maintain their right to the confidentiality of their internal reports.

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a SHAW, PITTM AN,' PoTTs & TROWBRIDGE A PARTNEN$ nap INCLUDING PROF 4SSiONAL CORPQAATCNS Letter to the-Administrative Judges May 20, 1985 Page 6 Where the documents provided herein for the Board's review are not relevant to.a matter in controversy, Mr. Eddleman has no right to obtain them in discovery. See 10 C.F.R. 5 2.740(b)(1). Applicants ask the Board to reaffirm the deci-sion to deny Mr. Eddleman's motion to compel and/or subpoena.

for such documents and to return them to counsel for Applicants after review by the Board members.

O Re pect ully submit <:ed ,

f Johr ff. O'Neill, r., P.C Courisel for Applicants

.cc: Attached Service List w/o enclosures ~

-i'

s. s UNITED STATES OF AMERICA.

NUCLEAR REGULATORY COMMISSION

-BEFORE THE ATOMIC' SAFETY AND' LICENSING' BOARD DGLKETED

.,3 USNRC JIn'the Matter-of )

CAROLINA POWER'&: LIGHT. COMPANY Docket No. 4@

and NORTH CAROLINA EASTERN )

MUNICIPAL POWER AGENCY )- 0FFICE OF SECRtifA8 Y

) 00CKETING & SERVICI BRANCH (Shearon Harris Nuclear Power )

Plant)- )

SERVICE LIST-James L. Kelley, Esquire .

John D. Runkle, Esquire

- Atomic Safety and Licensing Board Conservation Council-of

- U.S. Nuclear. Regulatory Commission .

North Carolin'a Washington, D.C. 20555 307 Granville Road 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 P.O. Box 12607 Washington, D.C. 20555 Raleigh, North Carolina 27605 Dr. James H. Carpenter Dr. Richard D. Wilson H Atomic Safety and Licensing Board 729 Hunter Street U.S. Nuclear Regulatory-Commission Apex, North Carolina 27502 Washington,ED.C. 20555

- Charles A. Barth, Esquire Mr. Wells Eddleman

- Janice E. Moore, Esquire 718-A Iredell-Street Office of. Executive Legal Director Durham, North Carolina 27705 U.S..: Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Richard E. Jones, Esquire Office of1the-Secretary Vice President and Senior. Counsel U.S.-Nuclear Regulatory Commission Carolina Power & Light Company Washington, D.C. 20555 P.O. Box 1551 Raleigh, North Carolina 27602 Mr. Daniel F. Read, President Dr. Linda W. Little CHANGE Governor's Waste Management Board P.O. Box'2151' 513 Albemarle Building Raleigh, North Carolina 27602 325 North Salisbury Street Raleigh, North Carolina 27611

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t:

Bradley W. Jones, Esquire .

U.S. Nuclear Regulatory Commission.

Regica II 101 Marrietta St'eet-r Atlanta, Georgia .30303 Mr. Robert P. Gruber Executive Director.-

~

Public Staff - NCUC P.O. Box 991 Raleigh, North Carolina ~27602 Administrative ~ Judge Harry Foreman Bcx 395 Mayo University.of Minnesota

-Minneapolis, Minnesota 55455

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