ML20213E794
| ML20213E794 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/06/1986 |
| From: | Gad R ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1443 OL, NUDOCS 8611130290 | |
| Download: ML20213E794 (36) | |
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In the Matter of ) g c_
) Docket Nos. 50-445 TEXAS UTILITIES ELECTRIC ) 50-446 COMPANY et al. )
) (Application for an (Comanche Peak Steam Electric ) Operating License)
Station, Units 1 and 2) )
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APPLICANTS' RESPONSE TO CASE's
" MOTION TO COMPEL" Pursuant to 10 C.F.R. sec. 2.730(c), the Applicants submit herewith their response to the " Motion to Compel" filed by CASE under date of 10/15/86.1 Introduction Prior Proceedings.
Presently underway is the Applicants' Comanche Peak Response Team ("CPRT") program, the implementation of which will yield Results Reports covering, at a minimum, the aggregate of the issues presently in litigation under Contention 5. If and to the extent that CASE at the appropriate time signifies that it wishes to contest any of these issues, the results of the CPRT program I
implementation relevant to that issue (together with such IBy agreement of the parties, the time within which this Response might be filed was enlarged to November 7,1986.
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b other evidence as the Applicants may choose to rely upon) will be offered into evidence and then become the subject of hearings and adjudications before and by this Board. As of the moment, about a dozen of the narrowly focussed, TRT-issue responsive CPRT Action Plans have been completed; the balance of the program, including the self-initiated global investigations of the adequacy of construction and the I adequacy of design, is still in process.
The Applicants have moved that the Board establish a schedule for the litigation of completed Results Reports (to the extent that CASE wishes to litigate them). CASE, apparently quite anxious to avoid litigating the results of the CPRT program, has strenuously advocated instead a number of different alternative proposals. One of the j latter is the never well-defined concept of litigating separately the theoretical, pre-implementation adequacy of the overall Program Plan.8 8 CASE concedes that the issue which the Board has considered for litigation is "whether the [CPRT Program Plan], if implemented perfectly, will be able to adequately resolve the questions" that exist regarding the adequacy of CPSES construction and design. Motion to Compel at 16 (emphasis added). See also Tr. 24588 (August 18, 1986): "[ Applicants] have proposed the CPRT to bring them back to that moment when they'd be able to say that [the plant is licensable).
What we want to litigate is the question [:] [I]s the CPRT inherently incapable of doing that[?]" (Emphasis added.) These statements are consistent with the Board's articulstion of the issue: whether "the
h The Applicants have opposed this concept on a number of grounds, including the fact that it is premature (the Program Plan may and most likely will change), hypothetical (there being no point to litigating the " adequacy" of some portion of the Program Plan that may prove to be immaterial to reaching any given conclusion), impractical (inasmuch as requires constant line-drawing between theoretical concept and actual implementation), and legally incompetent (unless and until the Program Plan is offered into evidence, there is nothing before the Board for adjudication).
Ultimately, the dispute between CASE and the Applicants has its roots (though it is not explicitly so framed) in CASE's belief that CASE should be given an active, participatory role in the implementation of the CPRT Program (and the development of the evidence upon which its opponent will rely in litigation). The Applicants, of course, have not consented and will not method of the CPRT program [ Plan]" should be examined before " specific examples of its implementation." Tr. 24503 (emphasis added); /d.
24507; /d. 24585; /d. 24587 (CASE wants to " litigate solely the question of the adequacy of the CPRT program to respond to possible
[QA/QC breakdowns]") (emphasis added). It is also consistent with CASE's written proposal to the Board urging that " generic CPRT issues" be litigated before the question of whether the CPRT has been implemented correctly. CASE's Proposed Schedule for Hearings at 14-17 (June 30,1986). CASE's position on the interrogatories, however, is decidedly inconsistent with its previous statements of "the issue."
O consent to so bizarre a concept.
At the most recent pre-hearing conference, the Board in essence deferred resolving this dispute about hearing schedules. It ordered that certain of the steps contained in this variant of CASE's proposed litigation schedule (i.e., discovery and the filing of a motion for summary disposition by CASE) take place.8 CASE responded with a flood of interrogatories. Answers to the first two sets of 8 CASE's motion contains a " prior proceedings" recitation that is inaccurate in a host of respects. Among them is the erroneous assertion that "the Board has ruled that the issue now ripe for consideration and scheduled for hearing is the adequacy of the CPRT
[P]rogram [P]lan, and that discovery is in order to enable the parties to prepare motions for summary disposition or for hearing." Motion to Compel at 2. The Board has scheduled no such hearing, nor has the Board determined that litigation of Program Plan adequacy (however that vague concept might be defined) is "now ripe for consideration."
See Tr. 24604 (8/19/86).
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these were filed on September 26, 1986, and this motion promptly followed.4 t
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- In its Motion to Compel, CASE observes that "[p]rior to filing the' responses the Applicant [s] made no attempt to contact CASE to clarify any of the interrogatories that they may have found
' objectionable, and refused to provide any specific basis for the blanket ohjecti.ons which were utilized in the responses." Id. at 1.
We are awareiof no obligation to telephone a party that has filed objectionable interrogatories (CASE may be confusing the asserted obligation with the practice, and in some jurisdictions the obligation, on the part of the interrogating party, after receiving the responses and considering that which is important and that which is not,' to attempt communication with the interrogated party for the
' purpose of seeing what compromise, if any, can be achieved). There then follows a lengthy diatribe of no apparent purpose and of which the only accurate assertion is that communications between the parties failed to resolve anything.
4 What actually happened is that CASE waited until Friday, October 3,1986, before calling Applicants' counsel, who was then in transit.
The message left was " Call me immediately, or else." CASE's counsel was called from an airport lounge, but the call was not productive:
this, however, had nothing to do with the place from which the call was made but because CASE's counsel advised that she was " conducting interviews right now and I don't want to interrupt to deal with this matter." An arrangement was made for Applicants' counsel to initiate another telephone call from his office on Sunday, October 5,1986, where he would be prior to taking another airplane flight.
Unfortunately, there was some sort of event scheduled in Boston that day as a consequence of which many of the streets were closed, so that instead of taking 20-25 minutes to drive to the office it took i approximately two hours, leaving just enough time to pack a briefcase
The Interrogatories and the Responses.
Set No. 1 consists of 21 numbered and two unnumbered questions. (Nominal " interrogatory" No. 22 was, in fact, a request for the production of documents.) Each of the former extracts a word or phrase from the Program plan and requests that it be " explained." The two unnumbered interrogatories seek (1) the identity of the person (s)
"[who [have) the authority [ presumably under the program and rush to the airport.
Interestingly enough, this particular airplane was equipped with a telephone and, once enough altitude was achieved to make the thing work and the aisles had been cleared to permit one to get forward, CASE's counsel was called from the plane. (This was about 21/2 to 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> later than had been arranged for.) However, we were informed that she wasn't available.
Because of travel and other matters, the next opportunity for making a telephone call was Tuesday, October 7,1986. Without rehearsing detail, this communication resolved no disputes. However, during the conversation counsel for CASE was asked what sort of compromise CASE had in mind and the response was that CASE was willing to accept nothing except outright capitulation. Counsel for CASE was also asked (respecting CASE's " Instructions" to the interrogatories) to identif r any respect in which the Applicants' declination gratuitou .ly to accede to the " Instructions" was thought to have l resultW in the failure to provide any information that would have l been provided had the " Instructions" been accepted. Counsel for CASE l was unable to identify any such respect and conceded that the response to the " Instructions" was a moot point as to Sets 1 and 2.
Suffice it to observe that these communications were not successful at achieving resolution of any issues. Given, moreover, CASE's position that only capitulation would be entertained, any such i potential was doomed from the outset. j
Plan] to decide what each of these terms and phrases mean[s]" and (2), for each phrase for which an
" explanation" is sought, "at least two examples from the actual work of the CPRT . . . which illustrates the application of the definition in practice." The first of the unnumbered interrogatories was answered (notwithstanding an objection to it) and the second was not, since it calls for the publication of as-yet unfinished work.s Each of the 21 numbered requests was j 1
answered either with a statement of or reference to the definition of specially defined terms or a statement to the l
effect that the questioned term was not used with any
)
special definition (i.e., the term is ordinary English and the written document speaks for itself).
Set No. 2 consisted of a single question. That question contained a list of 39 individuals and asked, for i each, for "all involvements of [each) individual in the planning and formation stages" of various different parts and revisions of the CPRT Program Plan and for "all sAs noted in the answer, the authority to interpret the CPRT Program Plan resides in the SRT, which also reviews and approves Results Reports embodying the results of Action Plan implementation.
Prior to completion of the work and submission of a Results Report to SRT, therefore, the concept of misinterpretation of a Program Plan term may be a conceptual impossibility and, in any event, it does not for the reasons set forth in note 8, infra, present a litigable issue in these proceedings.
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activities . . . which [each) individual performed or participated in [during the Program Plan implementation]."
This interrogatory was objected to on relevance grounds (since the adequacy of a written statement of actions to accomplish a purpose is not dependent upon the identity of the persons who may have authored the list, since the bulk of the materials referred to were superseded versions of the Program Plan, and insofar as it called for information about CPSES Project activities "beyond the CPRT activities"), and it was objected to on relevance grounds and in-process grounds (insofar as it called for the results of on-going CPRT implementation). Notwithstanding the objection, however, CASE was informed that the prior revisions of the Program Plan and Action Plans, which have previously been made available for inspection by CASE, would contain much of the (irrelevant) information sought.
CASE's Motion to Compel, while complaining about each answer as well as about objections that did not affect any answer, is a classic example of the "scattergun" approach.
In fact, it is so devoid of legal argument as to make both the Applicants' job of responding and the Board's responsibility for ruling more difficult than either should be. Hereinafter we attempt to extract from the collage of assertions contained in the M'otion to Compel those issues I
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- I cognizable as discovery issues and demonstrate why each lacks merit. Before doing so, however, we suggest that the l
motion should be dismissed summarily because of the lack of ,
any attempt to support it, i
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I. THE MOTION SHOULD BE SUMMARILY DENIED FOR LACK OF COGNIZABLE LEGAL ARGUMENT.
It is a well-accepted precept that the novant on a particular matter has the burden of persuading the tribunal that the requested relief should be afforded. 10 CFR secs. 2.730(b), 2.723. Among the requirements of such a burden is a reasoned legal argu~ent m why the prerequisites for the sought-after relief have been met by the showing offered by the movant. A simple recitation of asserted deficiencies does not amount to legal argument. E.g.,
Cleveland Electric Illuminating Co. (Perry Nuclear Pouer Plan, Units 1 and 2), ALAD-841, NRC , CCH Nuc. Reg.
Rptr. par. 30,977 (July 25, 1986); Houston Lighting Power Co. (South Texas Project, Units 1 and 2, ALAB-799, 21 NRC 360, 378 (1985); Visconsin Electric Power Co. (Point Beach Nuclear Plan, Units 1 and 2), ALAB-739, 18 NRC 335, 338 n.4 (1983). Failure to make such argument has two impacts:
first, it suggests rather compellingly that the movant either doesn't believe his own assertions or regards them so unimportant as not to be worth the time it would take to present them adequately. Second, it forces the tribunal to do the movant's work (in order to see if there is something valid in the assertion not apparent from the moving papers). It similarly forces the opposing party to figure l
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out and articulate the arguments the moving party should have made (in order to respond to them). Neither is fair, either to the tribunal or to the opposing party. Not surprisingly, the judicial reaction to shoddy pleading on the part of a party is summary denial or dismissal. E.g.,
Perry, op. cit. supra.
Such is precisely the fate this motion should suffer.
While CASE laments often and loudly that the Applicants' responses are inadequate, its prolix motion to compel nowhere advances legal argument as to why this is so, sufficient to permit either reasoned response or reasoned adjudication.
It is, for instance, not until page 9 of the N'otion to Compel that we learn what supposed errors committed by the Applicants are complained of. At that point, CASE identifies four supposed perfidies:
First, CASE complains of " Applicants failure to follow the lawful and useful instructions laid out in CASE's discovery requests for the purpose of ascertaining detailed information and an accurate understanding of the CPRT." Notion to Compel at 9. CASE's argument on the point, however, doesn't come until two pages later, and even then the entire argument is limited to the following ipse dixit:
"[T]he instructions listed below in their entirety are both lawful and permissible. The instructions were researched prior to their being used, and were based on a form book which was also carefully reviewed and researched."
One ought to be able to presume that if the
" Instructions" were " researched thoroughly," some legal argument and authorities suggesting why CASE has the power unilaterally to dictate major changes in the rules governing answers to interrogatories could be provided.
Likewise, if the " Instructions" were in fact copied from a formbook,e then some citation to a page in the formbook might be provided. However, neither argument nor citation will be found in the Notion to Compel.' Courts typically dismiss motions with so little meat to them. E.g., Wolgin
- v. Simon, 722 F.2d 389 (8th Cir. 1983); Chicago and Northwestern Railway Co. v. Bri t ten , 301 F.2d 400, 402 (8th Cir. 1962); Marshall 's U.S. Auto Supply v. Cashman, 111 F2d 140, 142 (10th Cir), cert. denied, 311 U.S. 667 (1940);
- With which, we presume, the Board is familiar enough to know that it simply copies pleadings used in prior cases and is authoritative as to nothing.
'It is also worth observing that CASE is somewhat confused about the Applicants' response to the " Instructions." The Applicants did not object to the " Instructions," it simply, as it has the right to do, ignored them. Perhaps it would have been better had the Applicants, as they also have the right to do, not explicitly called out to CASE's attention that the invalid " Instructions" were being ignored, but that does not amount to an objection.
Bartholomen v. Port, 309 F. Supp 1340, 1343-44 (E.D. Wix.
1970); 5 Wright & Miller, Federal Practice and Procedure sect 1182 (1969 and 1985 Supp.).
CASE's second assertion is stated in these terms:
"[ CASE complains of] Applicants' refusal to answer questions which they claim are irrelevant, (i.e. beyond the scope) of the CPRT and deal with implementation."
Notion to Compel at 9. One would have thought it commonplace for a party not to respond to questions to which an objection on relevance (or any other ground) has been interposed. By itself, this assertion is meaningless.
Nonetheless, one searches on for argument to the effect that the relevance objections ought not to be sustained. Such argument as is made appears on page 15, again by an ipse dixi t assertion:
"Such information is clearly relevant to the adequacy of the [CPRT Program Plan] . . . . Since the work processes might be implemented by people who have one definition and understanding in mind, and reviewed or overviewed by another group of people who have yet another meaning in mind, and accepted by the NRC using a third meaning it is critical that CASE be able to identify how the CPRT plan is implemented, including by whom it is implemented. . . . [T]he requested information . . . goes directly to the validity of the CPRT process and the credibility of its work or process."
Id. The only conclusion one can come to from these unadorned assertions e is that the subject (of how CPRT Prograr, Plan terms may have been interpreted and applied in specific cases) is not assessable until final results have been made available and are ripe for litigation, since ultimately it is only how terms are used in the Results Reports that is meaningful.
CASE's third indictment in directed against:
" Applicants' refusal to provide a specific definition to a given term or phrase when requested and instead rely on a circular response which relies on the original term or phrase or a claim that a word or phrase has no particular meaning" Nation to Compel at 9. Prescinding from the erroneous assertion that anywhere in the answers to interrogatories is the claim made that any word or phrase in the CPRT Program Plan "has no particular meaning," all that is at issue here is that from time to time CASE sought what didn't exist, namely some special definition or usage
'Since it is SRT's prerogative and responsibility to review and approve completed CPRT work, any of the hypothesized
" misinterpretations" that might occur on a lower level should have been detected and corrected before the Results Report is published, leaving no issue for Board resolution. Likewise, any failure of the Staff properly to comprehend the CPRT Program Plan (of which there is no evidence to date and none cited by CASE) goes only to the persuasiveness of any Staff testimony ultimately offered to the Board at such time as the CPRT conclusions are offered into evidence, not to the adequacy of the Program Plan. How, therefore, the quoted assertion is supposed to translate into something presently litigable remains a mystery.
associated with a word or a phrase.
CASE's legal argument on this point begins on page 17.
After merely listing a number of the responses that CASE
" finds inadequate," it addresses only one: " multiple, apparently isolated and relatively minor discrepancies."
Id., at 18. Presumably it is possible for a document such as the Program Plan to employ such a phrase with a specialized meaning, that is to say, with some meaning other than that normally attaching to the usage of common English words (though it bears noting that, where the Program Plan specially defines terms, it is usually quite clear about both the fact and the substance of the special definition, see e.g., Program Plan at 2 & n.). In this case (as well as many other of the cases singled out by the interrogatories), however, no such special definition was employed. The answer so stating is responsive and complete and nowhere does CASE even essay any demonstration to the
i contrary.'
' Arguably CASE does advance one legal argument cognizable as such, namely the assertion that, by not coupling its " objections" with a motion for a protective order, the Applicants should be deemed to have waived them. Motion to Compel at 11. To this there are two quick and dispositive responses. The first is that, as noted above (see note 7, supra), CASE has mischaracterized the Applicants' response to the " Instructions." The second is that the Rules of Practice do not require the result CASE proffers. Indeed,10 C.F.R. 2.740(f), the very provision cited by CASE, provides that, on a motion to compel, the Board may make any order that it might have made had a motion for a protective order been filed, language which is flatly inconsistent with CASE's proposition. More to the point, the fundamental assumption of the discovery rules on which the Commission modelled its Rules of Practice is that there is no issue joined until the motion to compel has been filed: it is, after all, quite permissible for an interrogating party to seek more than is his right and for a responding party to waive any objection that might lie.
Once the objection has been interposed, the burden falls to the interrogating party to determine the likelihood that a motion to compel will prevail, tha burdens of making the motion, and the value of the sought-after material, on the basis of all of which a judgment should be made about filing. It would be fundamentally inconsistent with widely accepted principles of judicial economy to interpret section 2.740(f) as forcing judicial intervention at any earlier stag e. See also Consumers Power Ca (Palisades Nuclear Power Facility), ALJ-80-1,12 NRC 117,130 n.9 (1980), which criticizes section 2.740(f) for being " confusing." See also Pennsylvania Power &
Light Ca (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613,12 NRC 317, 322-23 (1980) (motion for a protective order "may" accompany objections to interrogatories); Long Island Lighting Ca (Shoreham Nuclear Power Station, Unit 1), LBP-82-82,16 NRC 1144,1152 (1982) (motion for a protective order not required).
II. NO JUDICIALLY RESOLVABLE QUESTION IS PRESENTED BY CASES " INSTRUCTIONS" A. The " Instructions" are Moot as to Sets I and 2.
As is noted above, CASE has previously conceded that, putting aside all other considerations about the validity or effectiveness of the so-called " Instructions" referenced in CASE's interrogatories, those " Instructions" and whether or not they were acquiesced in had no bearing on the responses obtained as to these two sets of interrogatories.
See note 4, supra. A review of the questions and the answers confirms the propriety of this concession. Under these circumstances, there is no live controversy regarding the " Instructions," and the Board should eschew venturing into the territory of academic questions.
B. CASE Offers no Sufficient Argum?nt as to Why its " Instructions" are Legally Proper Commands to the Applicants.
As is pointed out above, CASE's Motion to Compel is bereft of legal argument purporting to demonstrate the propriety or effectiveness of its " Instructions" under the Commission's Rules of Practice. Insofar as that issue purports to be raised by the Nation, therefore, the proper course for this Board to follow is summary denial.
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C. The Applicants' Declination to Follow the Instructions was Proper.
Given that CASE has devoted no effort to defending the legal sufficiency of its unusual " Instructions,"
extended treatment of the subject is not warranted.
Nonetheless, it takes but a few minutes and an example or two to summarize why those " Instructions" exceed the bounds of the obligations that can be imposed on the Applicants by the service of interrogatories.
For example, CASE's first " Instruction" dictates that:
"This discovery request is deemed to be continuing, and any other additional information which is discovered and responsive to this request requires supplementation to these answers up to and including the time of the hearing in this proceeding."
This " instruction" does not not merely transcend, it tramples the carefully drawn line contained in the Federal Rules of Civil Procedure, emulated in the Commission's Rules of Practice. A party who responds to a discovery request with a complete response is under no continuing obligation to supplement that response, except as expressly provided in Rule 10 CFR sec. 2.740(e). The corresponding rule in the federal courts, Fed. R. Civ. P. 26(e), is identical to 10 CFR sec. 2.740(e). Regarding the Federal Rule, it has been noted "[The rule] makes it as clear as language possibly can that Rule 26(e) is the exclusive authority for requiring supplementation and that no duty to
supplement can be imposed on a party except as there provided. The party who originally sought discovery may not expand the duty to supplement by a preamble to his request for discovery nor can a court do so by adoption of a local rule." 8 Wright & Miller, Federal Practice and Procedure, sec. 2049 (emphasis added).10 CASE's second " Instruction" is indecipherable. The first sentence states:
"All interrogatories should be answered on the basis of Applicants' knowledge or information and belief, including that of Applicants' representatives, agents, and, unless privileged and specifically alleged with respect to specifically identified material and the basis for the claim attorneys."
Applicants had no duty to follow this instruction because it was not comprehensible. Rucker v. Wabash Railroad Co., 418 F.2d 146, 154 (7th Cir. 1969) ("We agree, however, that Interrogatory 70 about the 20-year use of the passing track did not call for an answer. It contained an incomplete sentence the meaning of which defendant was under no obligation to decipher.");
loTo be sure, Rule 26(e) and section 2.740(e) contain authorization for the Court or Board to require additional supplementation in specific cases. Plainly, however, the rules intend this power to be exercised only in specific limited cases and only for specific reasons that warrant exceptions to the general rule.
Prescinding from the fact that CASE makes no claim either of having moved for or obtained an order under section 2.740(e), it would be plain error for the Board to adopt a wholesale supplementation rule along the lines of CASE's interrogatory " instruction."
Tsangarakis v. Panama Steamship Co., 41 FRD 219, 220 (E.D.
PA 1966) ("some of the objections were sustained on the ground that the proposed interrogatories were so garbled as to be indecipherable or so vague and misleading as to be beyond the bounds of relevancy suggested by Fed. R. Civ. P.
26"). Regardless, either the " instruction" was intended to be a mere paraphrase of section 2.740b(6) (" answers to be under oath and signed by the person making them") -- in which case it is uselessly redundant -- or it was intended to command something greater than that dictated by the Rules of Practice.
CASE's fourth instruction is similarly contrary to the Rules of Practice. Instruction "D" demands that, if the Applicants object to any interrogatory, then in addition to ,
stating the reason for the objection, they must " identify each person having knowledge of the factual basis, if any, on which the privilege or objection is asserted and the precise scope of the claimed privilege or objection." Both the Rules of Practice and the Federal Rules, however, require only that, if an interrogatory is objected to, "the reasons for the objection be stated in lieu of an answer" and that "the objections be signed by the attorney asserting them." 10 CFR sec. 2.740b(b); Fed. R. Civ. P.
33(a). Again, CASE's instruction seeks to place a burden
on the Applicants that is contrary to the Rules.
This instruction is also objectionable because in a subtle way it is attempting to force the Applicants to designate their expert witnesses before they are prepared to do so. As the NRC Licensing Boards now appear to be unanimous in holding, the provisions of Fed. R. Civ. P.
26(b)(4) regarding discovery of experts apply in NRC licensing proceedings. E.g., Kerr-N cGee Chemical Corporation (West Chicago Rare Earths Facility), LBP-85-38 22 NRC 604 (1985). In that case the Board denied the State's motion to compel Kerr-McGee to answer an interrogatory that required Kerr-McGee to reveal who conducted certain studies. The Board stated:
"We strongly agree with the line of cases which holds that if the individuals are experts retained in anticipation of litigation but not expected to testify, then the identity and other collateral information concerning such an expert are not discoverable unless a showing is made of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. Furthermore, if the State wanted to propound a 26(b)(4)(A)(i) interrogatory, it should have done so directly, not by couching its request within an interrogatory not clearly designed to elicit the names of the experts who will be witnesses."
Id. at 616-17 (citations omitted).
CASE's so-called " Instructions" constitute an effort to amend the Commission's Rules of Practice, so as to place
a greater burden on Applicants than the Rules of Practice and the Federal Rules of Civil Procedure now impose. Such an amendment neither can nor should be effected by the Board and CASE's motion to compel therefore should be therefore be denied.11 12 CASE advances in its Nation to Compel the strange notion that,-
because " CASE has given up certain rights to further discovery to which it would be entitled to" (sic), the Rules of Practice should be thrown out the window. (Plainly, if CASE can prevail on the claims advanced in its Motion to Compel without throwing the Rultss of Practice out the window, there would have been no point to making this claim.) The notion is both legally erroneous and factually without predicate. First, the Board has no power to do anything other than to follow both the Commission's regulations and the dictates of sound discretion, regardless of how doing so might be perceived by CASE as disadvantaging CASE. Second, we are wholly unaware of how CASE has "given up" anything: the propesal of which the Board ultimately adopted portions was advanced by CASE entirely on its own. The 2
Applicants neither supported it nor offered any inducements to CASE to advance it; quite the contrary, the Applicants strenuously opposed it.
Insofar as CASE's contention here sounds in the nature of a plea for enforcement of a bargain, it fails utterly because there was no bargain. If CASE's real complaint is that it did not expect its own proposal to be accepted and therefore it did not have to consider the consequences of an unexpected victory, we are aware of no remedy.
Certainly the one proposed is inappropriate.
III. THE INTERROGATORIES ARE IRRELEVANT A. CASE Offers no Sufficient Argument Why its Interrogatories are Relevant Or Why the Objections are Invalid.
As is pointed out above, CASE's Nation to Compel contains no legal argument purporting to demonstrate the relevance of any of its objected-to interrogatories or the impropriety of any of the Applicants' responses. Insofar as that issue purports to be raised by the Nation, therefore, the proper course for this Board to follow is summary denial. See Point I, supra.
B. The Interrogatories are Irrelevant To the Extent They Seek to Discover What the People Who Implement CPRT Think CPRT Means CASE's first set of interrogatories asks that, for each of a series of words and phrases used in the CPRT Plan, the Applicants " identify name, job description and employer of each person who has the authority to decide what each of these terms and phrases mean in practice and answer the question in light of the meaning given to the phrase or term in practice." (Emphasis added.) In its Nation to Compel, CASE clearly states that it wants to know "what the words in the CPRT Program Plan mean to the individuals who have to implement it." Notion To Compel at
- 5. Such information might be relevant to litigation on the adequacy of the CPRT as implemented.12 It is irrelevant to the question here: is the CPRT Program Plan, as written and "if implemented perfectly," capable of achieving its objective? Not only that, but litigating now what CPRT's implementers think CPRT means will waste judicial resources on " hypothetical" and academic questions that later must be answered again in a real context.
Each of the words and phrases that are the subject of these interrogatories come from the CPRT Program Plan.
Where special definitions are intended, the definitions come from the Program Plan or one of its subsidiary documents (appendices, PAGs or the like). See Applicants' Answers to CASE's CPRT Program Plan Interroga tories (Set No. 11 The possibility that some implementers may not understand those definitions would, if it developed, be a problem in Program Plan implementation, not Program Plan design. The point is easily demonstrated. Assume arguendo that some implementers of CPRT do not understand what it means. The Board must then determine whether the 18But see notes 5 and 8, supra, and 13, infra.
n, conclusions they draw about the quality of the plant are, therefore, suspect.28 To do so, the Board must determine whether those particular implementers' mistakes render their particular conclusions flawed. At that point the issue is no longer the merits of CPRT as designed, but, rather, the faults (if any) of CPRT as applied.
CASE's requests are not simply irrelevant; they negate the only legitimate basis for urging pre-implementation litigation of the adequacy of the CPRT 4
Program Plan at all -- to save time and resources.
Administrative courts, like judicial ones, seek to avoid wasting their resources on deciding " hypothetical" or 280f course, it is far from clear that in any given context, the personal interpretations of particular individuals will ever be something of which resolution is required in order to assess the validity of the CPRT conclusions. In the first place, it is the SRT's job to ensure that CPRT Program criteria have been properly applied and its commitments fulfilled; this should screen any hypothetical misinterpretations that might occur in process. Second, approximately 50% of the possible misinterpretations would be ones that tend to ,
increase rather than decrease the level of confidence that is derived '
about any particular matter; random chance says that, assuming misinterpretations, about half will be conservative and about half '
will not be. Third, given the findings in any area, possible misinterpretations about aspects of the program plan are likely to be completely moot: how the RTL for an Action Plan that finds no deviations in its investigations might interpret the Program Plan requirements for categorizing deviations is a moot point. The possibilities are endless; the conclusions the same: what CASE seeks to litigate at the discovery level leads ineluctably to a hopelessly academic exercise.
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" academic" questions. Village of Ilion, N. Y. v . F.E.R.C.,
790 F.2d 212, 217 (2d Cir. 1986) (quoting Babbi t v. Farm Workers, 442 U.S. 289, 298 (1979)); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-557, 10 NRC 153, 156 (1979); Northern Sta tes Power Co.
(Prairie Island Nuclear Generating Plant, Units 1 and 2),
ALAB-419, 6 N.R. 3, 6 (1977). Litigating whether
> particular implementers currently understand the words used in the CPRT Program Plan will do just that. Addressing the question now -- before the implementers do their work -- is a purely academic exercise. The result cannot matter unless any assumed implementers' confusion were to propagate through to results and to prejudice the Results Report's conclusions, a fact it is literally impossible to determine in advance of -- or separately from -- the results and their validity. Furthermore, even were the Board in some fashion to rule on the matter, the same issue must of necessity be relitigated (and its implication for particular CPRT reports analyzed) when the Board turns to the question: is the CPRT adequate as applied? CASE's discovery thus focuses on issuea that, if pursued, will waste the Board's and parties' resources on the litigation of hypotheticals.
C. CASE's Interrogatories Are Irrelevant To The Extent They Seek To Discover Who Will Implement CPRT.
CASE's first set of interrogatories asks the name, job description and employer of each person who has the authority to decide what the terms used in the CPRT mean.
The second set of interrogatories asks information on the role each and any of thirty-nine individuals may have played in the planning and formulating each of the four revisions of the CPRT and asks the applicants to
"[i]dentify all CPSES project activities which each of the individuals listed has been assigned to or involved in above and beyond the CPRT activi ties. " (Emphasis added.)
CASE explains these interrogatories seek information on "who implements" CPRT. It asserts that it is " critical that CASE be able to identify how the CPRT Plan is implemented, including by whom it is implemented." CASE Motion to Compei at 15.
Once again, however, CASE's requests violate both the letter and spirit of the Board's August 19th order. CASE argued that order to be appropriate only because "the inadequacies of the CPRT . . . are apparent on their face,"
Tr. at 24563, and because "we feel very confident that the CPRT Program Pian cannot pass the minimum muster necessary
and that the earlier the Board decides that it doesn't, the better," id. at 24564 (emphases added). These interrogatories, however, have nothing to do with deficiencies apparent on the face of the Program Plan.
Quite simply, who implements CPRT (and how well they may do so) is an implementation question, not a design-of-the-program question. Indeed, litigating the identities and qualifications of CPRT implementers will do what the Board presumably sought to avoid -- waste time and resources.
The impact of any rulings on implementers' credentials will be purely hypothetical. Later the Board will be obliJed to decide the same issues again (and what they mean) when the CPRT results are presented.
CASE suggests, however, that the identities and responsibilities of the implementers are relevant to two
" generic" issues. First, CASE asserts, the names, ,
responsibilities and past history of the implementers is relevant to a supposed " generic" flaw that the "CPRT Program Plan [ lacks independence] from the project," CASE Motion to Compel at 20, or, as CASE puts it elsewhere, to
" independence and incompetence issues." Id. at 9.
Prescinding from the relevance of this subject as a
g whole,14 CASE should accept that " independence" cannot be a generic issue. This Board has twice ruled that "the degree of independence of the Comanche Peak Response Team (CPRT) affects the weight of the evidence and not whether it would be received into evidence." Nemorandum and order (October 2, 1986) (emphasis added). See also Nemorandum and Order October 29, 1985) at 5 ("The alleged lack of independence of the CPRT is relevant only to the credibility of its testimony.") (emphasis added). The Board's two rulings, of course, correctly state the law.
E.g., Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1091 (June 29, 1983); Netropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1) ALAB-772, 19 NRC 1193, 1210-11 (May 24, 1984). Since " independence" is relevant only to issues of witness credibility, the " independence" issue cannot be determinative of CPRT Program Plan a priori adequacy. The
" independence" of particular witnesses, rather, can be material only in the context of the testimony of those tilt is worth noting that, while CASE has repeated this clarion call with regularity, it has yet to cite any regulatory authority for the proposition that " independence" -- however that term might be defined -- is a requirement of a witness who intends to take the ;
witness stand to offer expert testimony.
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witnesses and the specific, concrete matters about which they testify. Who is implementing the CPRT Program Plan is irrelevant to its adequacy as designed.
CASE asserts, finally, that it can discover implementers' names, responsibilities and past relationship to the CPSES Project in order to find who might have
" knowledge of any discoverable matter." Nation to Compel at 14. CASE must do more than recite that platitude. It must explain (which it has totally failed to do) what
" discoverable matter" about the adequacy of the written CPRT Program Plan named individuals might know and it must then ask questions designed to find out if they do.
Obviously, its current interrogatories do not.
D. CASE's Interrogatories Are Irrelevant To The Extent They Seek Information On The Drafting Of The CPRT Revisions.
CASE's Second Set of Interrogatories ask about "all involvements" thirty-nine named individuals "had in the planning and formation stages" of the each of the four revisions of the CPRT Program Plan and its constituent documents. That information is clearly irrelevant to the issue of whether the CPRT Program Plan, as designed and in its present (or future) form, is capable of providing the requisite reasonable assurance about the adequacy of the finished CPSES construction and design. The merit of the
1 plan as formulated is what is alleged by CASE to be at issue. So long as that topic is the focus, it doesn't matter whether the plan was left,-anonymously, on the Applicants' doorstep or whether it was drafted by Genghis Khan. The question is: will it, "if implemented perfectly," work?
Indeed, even if CASE were ready to litigate CPRT's merit e.s implemented, this request would be irrelevant.
The issue would then be whether the activities performed and the results obtained by CPRT provide " reasonable assurance that, as built, the facility can and will be operated without endangering the public health and safety."
Philadelphia Electric Co. (Limerick Generating Station, Units 1 and ), ALAB-819, 22 NRC 681, 729 (1985) (quoting U'
n ion Electric Co. (Callaway Plant, Unit 1), ALAB-740, 18 NRC 343, 346 (1983)). See also 42 U.S.C. secs. 2133(d);
2232(a); 10 C.F.R. sec. 50.57(a)(3)(i); Carolina Power &
Light Co. (Shearon Harris Nuclear Power Plant), LBP-86-11, 23 NRC 294, 303-04 (1986); Louisiana Power & Light Co.
(Waterford Steam Electric Station, Unit 2), ALAB-812, 22 NRC 5, 14-15 (1985); Pacific Gas and Electric Co. , (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 NRC 1340, 1345 (1983); Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), LBP-83-77, 18
NRC 1365, 1367-68 (1983). How the plan was drafted won't i help answer that question.
Finally, CASE appears to suggest its interrogatories might be relevant on the theory that " CASE does not believe that the work done under Revision 0, 1 and 2 is acceptable to be ' grandfathered in' to Revision 3."
CASE Nation to Compel at 20. That question, however, is scarcely a " generic" one and CASE's requests have nothing to do with it anyway. The changes worked in Revision 3 of the Program Plan impact each Action Plan differently, if at all.15 If there is any litigable issue bere, it is one capable of resolution only when the results obtained under each Action Plan can be examined and assessed individually. At that point, CASE will be litigating the merits of the CPRT as implemented, not as planned.
Finally, even if CASE's "grandfathering" argument were relevant, its current discovery requests would have nothing to do with it. Who drafted Revisions 0, 1 and 2 is not relevant to the question of whether the present revision 15 Note that this asserted basis for propounding these questions is critically dependent upon the foundation proposition that any such earlier work was performed. CASE hasn't asked that qucation (tho7gh later interrogatories have, and the answer will be largely in the negative). On the face of things, all of the Results Reports published to date have been published since the publication of, and under the aegis of, the current revision of the Program Plan. We submit that CASE is grasping at post hoc straws with this argument.
a
- incorporates enough safeguards to make work done under it credible.
Conclusion For the foregoing reasons, the CASE " Motion to Compel" should be denied.
1 4espec fu 1, a d, mm .
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Thomas G. Dignan, Jr.
R. E. Gad III William S. Eggeling Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 Robert A. Wooldridge Worsham, Forsythe, Samples
& Wooldridge Suite 3200 2001 Bryan Tower Dallas, Texas 75201 (214) 979-3000 November 6, 1986.
I
COLKEilf usNW CERTIFICATE OF SERVICE
'86 NOV 10 P3 :21 I, Robert K. Gad III, one of the attorneyggfor;the Appl-icants l 00CKEiiNb & i"O herein, hereby certify that on November 6, 1986, I bW65 service of E the within Applicants' Response to CASE's " Motion to Compel", by mailing copies thereof, postage prepaid, to:
Peter B. Bloch, Esquire Mr. James E. Cummins Chairman Resident Inspector Administrative Judge Comanche Peak S.E.S.
Atomic Safety and Licensing c/o U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory P.O. Box 38 Commission Glen Rose, Texas 76043 Washington, D.C. 20555 Dr. Walter H. Jordan Nancy Williams Administrative Judge Cygna Energy Services, Inc.
881 W. Outer Drive 101 California Street, Suite 1000 Oak Ridge, Tennessee 37830 San Francisco, California 94111 Chairman Chairman Atomic Safety and Licensing Atomic Safety and r.icensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Stuart A. Treby, Esquire Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S. Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C. 20555
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Renea Hicks, Esquire Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel P.O. Box 12548, Capitol Station U.S. Nuclear Regulatory Commission Austin, Texas 78711 Washington, D.C. 20555 Anthony Roisman, Esquire Mr. Lanny A. Sinkin Executive Director Christic Institute Trial Lawyers for Public Justice 1324 North Capitol Street 2000 P Street, N.W., Suite 611 Washington, D.C. 20002 Washington, D.C. 20036 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, Esq.
Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P.O. Box X, Building 3500 U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Maryland National Bank Bldg.
Room 10105 7735 Old Georgetown Road Bethesda, Maryland 20814 Ms. Billie P. Garde Midwest Office 3424 N. Marcos Lane Appleton, Wisconsin 54911
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Robert K. G4d"III 1
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