ML20011A272

Motion to Compel Response to Util 810818 Production of Documents.No Documents Identified or Produced in 810918 Response.All Documents Dealing W/Effects of Earthquakes or Emergency Planning Requested.W/Certificate of Svc

ML20011A272
Person / Time
Site:	Diablo Canyon
Issue date:	10/01/1981
From:	Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8110080411
Download: ML20011A272 (11)

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. O q UNITED STATES OF AMERICA - -

NUCLEAR HEGULATORY COMMISSION E ocT 51981 > g

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BEFORE Tile' ATOMIC SAFETY AND LICENSING BOARD - '

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In.the in,tter of ) \c , s

) Docket Nos. h @ ,.

PACIFIC GAS AND ELECTRIC COMPANY ) 50-323 0.L.

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s e lo Canyon Nuclear Power ) Full Power Proceedings)

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/ .g, APPLICANT PACIFIC GAS AND ELECTRIC COMPANY'S MOTION TO COMPEL DISCOVERY AS

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AGAINST GOVERNOR BROWN

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,~A On August 18, 1981, Applicant Pacific Gas and Electric

-(s, arny requested Governor Brown, as a representative of an interested State, to produce certain documents for inspection and/or copying. On September 18, 1981, Governor Brown filed a  !

" Response" to that request which, in effect, is a motion for a  !

f protective order. No documents were identified or produced as l i

requested. For the reasons set forth below, Applicant l respectfully requests that this Board order the Governor to  !

comply with the Request for Production.

I. The Governor's " Response" t

Governor Brown complains that the Applicant 's Reques t for Production is "so broad and burdensome that compliance is  !

impossible within the time limits set forth in the NRC's regulations" and that compliance by the Governor "would require the State to expend more than $1,000,000." Ile then demands that the Applicant should agree in advance to reimburse the State for I

all expenses incurred by the State in complying with the rquest O

or that Applicant should limit the request in "some reasonabic.

manner."

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Governor Brown's " response" complains bitterly about the definition of " documents" in~ Applicant's request as well as

, the i'act that the request is directed at any agency, etc., past or present. Applicant ~ finds these complaints ironic at best.

Governor Brown submitted two requests for production to the

' Applicanty one dated August 5, 1981, and the other dated August .

25, 1981, the first before the Applicant's only request of August 18 and the second after. The Governor's definition of documents is broader than the Applicant's. It is indeed obvious that the. Applicant's definition of documents was directly derived from the Governor's.

As respects the phrase past or present, Governor Brown has construed this phrase to his own detriment. The Applicacit is asking for relevant documents which might be in the possession of a contractor, consultant, etc., even if he no longer is employed by the state. A logical approach does not require the Governor to contact each and every employee or consultant who ever worked for the state. It does, howeset, require the state to contact those who worked on emergency planning for a critical facility or earthquake planning to see if , documents not otherwise available might exist. Commpn sense dictates that this request is not aimed at a file clerk who worked for three weeks at a state hospital in L952 but that same common sense would also mandate an inquiry of a large consulting firm who

, perhaps had a several hundred thousand dollar contract in 1980 to study the ef fects of earthquakes on emergency planning.

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11. . Applicant's Request For Production Is~ Relevant And-Proper The discovery rules applicable to the case at bar are

. 10 C.F.R. S2.741~and $2.740, which mirror the provisions of the Federal Rules of Civil Procedure concerning the request for production of documentsf(Rule 34) and a. motion for protective order'(Rule 26). This Board is to be guided by the Federal Rules and cases decided hereunder. See, e.g., In the Matter of

' Boston Edison Company, 1 NRC 579 (1975). The touchstone case in this. area-has been H'ickman v. Taylor, 329 U.S. 495, 91 L.Ed.

451 (1947) wherein the Supreme Court stated:

- We agree, of course, that the discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of " fishing expedition" serve to preclude a party from inquiring i

into the facts underlying his opponent's case. flutual- knowledge of all the L relevant. facts gathered by both parties is essential to proper litigation.

(329 U.S. 495, 507-508) l L

l The fact that Governor Brown is crying " fishing expedition" is l of no moment. The Hickman v. Taylor doctrine continues to control. The Federal Courts of Appeal have stated in clear and convincing _ language that the test for determining whether J.

L material is discoverable under Rule 34 (requests for production) is relevancy. Weahkee v. Norton, 621 F.2d 1080 (10th Cir.,

1980). Governor Brown never argues that the request is not relevant.. lie complains the request is " burdensome," time

, cor.auming and expensive. It is respectfully submitted that it is the Governor who has thrust himself into these proceedings and

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has demanded that hedrings be held and discovery be had on

= emergency planning at Diablo Canyon. It is the Governor who maintains'that the offects of earthquakes on emergency planning must be considered, It is the Governor who in answer to an interrogatory s ,uesting the names of witnesses the Governor may call or subpoena to the emergency plar.:iing hearing states:

Governor Brown-has not identified any witnesses he may call or subpoena for the emergency preparedness hearing. In

, accordance with the requirements of NRC l regulations, Governor Brown will

. supplement this response as soon as

[ witnesses are identified. (Brown Response to Applicant Interrogatories dated i August 26, 1981) '( As of this writing no l such supplement has been received.)

3 It is the Governor who has requested voluminous documents be produced by the NRC Staf f and the Applicant. (Document

production requests dated 8/5/81, 8/7/81, 8/13/81 and 8/26/81.)

i It is the Governor who has the unmitigated gall to request from l

this Board (two days after the filing of their instant

" response") the issuance of subpoenas for the production of i

documents from a county and federal agency, neither of which is I

a party to these proceedings, which has the same definition of

" documents" of which they complain.

I j It is respectfully submitted that the Governor's I

behavior in these proceedings is unprecedented. He literally whines at the cos t -of discovery which is directed at him, as a l

. result of a process which he has steadfastly insisted upon, and o --

within two days files requests for subpoenas to inflict

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I virtually ths same discovery upon two much smaller agencies of a

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. county and the federal government who are not even parties to this' administrative process.

The Requests for: Production are unquestionably relevant to.these proceedings. As such they must'be complied with.

.The Applicant's first of'two requests states as follows:

All1 documents in possession, custody or.

control of the State of California (including the' possession, custody or control of any agency or organization of the

. State or. of any contractor, employee, consultant, or agent of the State, past or

present) which. relate in any way to

. radiological emergency planning (at Diablo Canyon or any other nuclear facility) or earthquake response or emergency planning i

(at-Diablo Canyon or any other critical facility (nuclear, medical or otherwise))- ,

This request is directed at emergency planning for critical facilities, i.e., those where a possibility of radiological f- releases exists. The request is not aimed at any non-critical l- facilities.

The second request is as follows:

l All documents in the possession, custody l or control of the State of California (including the possession, custody or

[ control of any agency or organization of the State, or of any contractor, employee,

. consultant or agent of the State, past or

[ present) which relate in any way to State, local, Federal, or utility emergency L

• response plans within the State of California.

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III. No Meaningful Response to the Request for Production Has Been Made

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Neither the Governor nor his counsel have made any meaningful attempt to respond to the request for production. l LInstead, the Governor has gone to great lengths to avoid f

' production of documents. The Governor started of f by sending a j self-fulfilling' prophecy memo to all agency heads (Exhibit A to Brown Response). The memo intones that "PG&E's foregoing request

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for documents is. unusually broad. The Governor is, of course, concerned that PG&E's request will prove to be an unreasonable

-burden on State resources." The memo then asks the recipients h

p to provide all "readily-available" documents and requests l j

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f . detailed information regarding costs of full compliance, man- l I

hours, time and the like. A review of the responses to the memo l is most enlightening. Several agenci<*i forwarded all or many of the documents in their possession (e.g. Exhibits E, F, G, H, J,

! M, O, etc. to 9rown Response). The Governor has not even

bothered to identify these documents in his response, let alone l

produce them as requested or state when and where they might be examined. In addition, the responsive memo frem the Department l

(. of Health Services contains a mos e interesting paragraph.

! The search in our office revealed no documents that would be covered by the request. Marian King of my staff' discussed with Wade Rose of the Governor's Office the L unreasonableness of PG&E's definition of l " documents." Mr. Rose stated that the Governor's Office is only interested in

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o receiving " standardized documents." They l

are not interested in receiving calendars,

[ appointment books, diaries and the like (Exhibit L to Governor Brown's Response).

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[Apparently_ Governor' Brown had decided not to comply with the request except as he pleased prior to the filing with this Board lof any response or ' request for protective order by his counsel.

Again, the definition of " documents" in the Applicant's request was derived from and is'less arcad than the Governor's Ldefinition in his earlier request directed at the Applicant. The Applicant has fully complied with the Governor's requests,

. including the production of appointment books, diaries, calendars "and'the like."1/

In summary,-the Governor has found a further conven-lent tool for. delay. Rather than producing any documents under the request, the Governor has filed a " response" which reveals not one single document. It is respectfully requested that this Board order that the documents received by counsel for the

[ Governor pursuant to the request be made available at once at a location convenient to tl> parties.

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.IV. Limitation In a " Reasonable Manner" Governor Brown has requested that the Request for l

Production.be limited in a " reasonable manner" and then suggests reasonable would be to limit the documents to be produced to L those documents which relate to Diablo Canyon. The Applicant does not see such a limitation as " reasonable." Request number i

I/-As set forth in responses to requests filed by the Applicant in this matter, Pacific Gas and Electric Company has spent thousands of man hours and untold monies in timely compliance with the Governor's and Joint Intervenor's Requests for Production.

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one is directed at critical facilities within the State of California from which radiological releases tcight occur.

Certainly emergency planning for such facilities is relevant to these proceedings. Do they exist? How thorough are they? Are the plans for Diablo better, more or less comprehensive? These and a multitude of other questions could well be raised by the Governor himself in these proceedings. Wi13 the Governor take the position that the emergency response plans for Diablo Canyon are not as good as those for other nuclear f acilities in the state? Will the Governor attempt to introduce documents prepared by various state agencies under his cor. trol which make comparisons between the Diablo Canyon emergency plans and those of other utilities or critical facilities? Does the Governor, through agencies under his control, possess documents which prove the Diablo Canyon emergency plans meet certain or all appitcable state and federal regulatory criteria?

It is the Applicant's firm position that Request for Production at "er one is relevant in its entirety and an order should issue fr' this Board that the Governor comply therewith immediately.

App icant's request number two may be broader that, necessary. Applicant would be willing to limit that request to a request for documents regarding the effects of earthquako.3 on l all emergency response plans for all facilities, critical or S

not. Remembering it is the Covernor who maintains that the effects of earthquakes on emergency planning must be consic .ed

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, ,. 5x In "a state where earthquakes are common," one cannot seriously

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believe ' the Governor would suggest such a document request would not lead to relevant mater'11.

V. Conclusion it-is respectfully regt sted that this Board order

! ~Go'vernor Brown to immediately produce a11' documents requested pursuant.to request number one. It is further requested that the Governor produce all documents currently in his possession or under his control which deal with the effects of earthquakes i on . emergency response planning.

I Respectfully submitted, MALCOLM 11. FURBUSl!

, . Pill LI P A. CRANE, JR.

[ s Pacific Ga s and Electric Company i.

77 Beale Street l

San Francisco, California 94106 l (415)781-4211 l ARTilVR C. GEllR l Snell & Wilmer j 3100 Valley Center p Phoenix, Arizona 85073 l (602)257-7288 L

BRUCE NORTON Norton, Burke, Berry & French, P. C.

3216 N. Third Street

. Suite 300 Phoenix, Arizona 85012

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(602)264-0033 l

Attorneys for Pacific Gas and Electric Company

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[ By_ _

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Bruce Norton e

DATED: Octooer 1, 1081.

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UNITED STATES OF AMERICA

. NUCLEAR REGUI.ATORY COMMISSION BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket Nos. 50-275 0.L.

PACIFIC GAS AND ELECTRIC COMPANY ) 50-323 0.L.

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, (Diablo Canyon Nuclear Power )

Plant, Units No. 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " APPLICANT PACIFIC GAS AND ,

ELECTRIC COMPANY'S MOTION 'IO COMPEL DISCOVERY AS AGAINST GOVERNOR BROWN",

dated October 1, 1981, have been served on the following by deposit in ,

the United States mail, postage prepaid, this 1st day of October, 1981:  !

i The lion. John F. Wolf, Chairman Gordon Silver l Atomic Safety and Licensing Board 1760 Alisal Street Mail Drop East West 450 San Luis Obispo, CA 93401 l U. S. Nuclear Regulatory Comm'n Washington, D.C. 20555 Sandra A. Silver 1760 Alisal Street The ilon. Glenn O. Brigh t San Luis Obispo, CA 93401 f Atomic Safety and Licensing Board Mail Drop Eas t Wes t 4 50 liarry W. Willis, Esq.

U. S. Nuclear Regulatory Comm'n W. Andrew Baldwin, Esq.

Washington, D.C. 20555 601 California Street ,

Suite 2100 l The lion. Jerry R. Kline San Francisco, CA 94108  !

Atomic Safety and Licensing Board i Mail Drop East West 450 l U. S. Nuclear Regulatory Comm'n j Washington, D.C. 20555 i Mrs. Elizabeth Apfelberg John R. Phillips, Esq.

l c/o Nancy Culver Center for Law in the  !

182 Luneta Drive Public Interest San Luis Obispo, CA 93401 10203 Santa Monica Blvd.

i Los Angeles, CA 90067 David F. Fleischaker, Esq. Mrs. Raye Fleming l P. O. Box 1178 1920 Mattic Road Oklahoma City, OK 73101 Shell Beach, CA 93449 Mr. Frederick Eissler Scenic Shoreline Preservation r Con f e re nce , Inc.

4623 More Mesa Drive Santa Barbara, CA 93105 o

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William J. Olmstead, Esq.

Charles Garth, Es q .1 Carl Neiburger Lucy Swartz, EEq. P. O. Box 112 Edwerd G. Ketchen, Esq. San Luis Obispo, CA 93402 Of fice of Executive Legal Director BETH 042 U. S. Nuclear Regulatory Comm'n

. Washington, D.C. 20555 J. Anthony Kline, Esq.

Byron S. Georgiou, Esq.

Legal Affairs Secretary Atomic Safety and Licensing Board to the Governor Panel State of California U. S. Nuclear Regulatory Comm'n State Capitol Building Washington, D.C. 20555 Sacramento, CA 95814 Herbert H. Brown, Esq.

Docketing and Service-Section Lawrence Coe Lanpher, Esq.

Office of the Secretary Hill, Christopher & Phillips

, U. S. Nuclear Regulatory Comm'n 1900 M Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20036 Janice E. Kerr, Esq.

Lawrence Q. Garcia, Esq.

350 McAllister Street San Francisco, CA 94102 IN o dbs Bruce Norton 6

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