ML17339A319
| ML17339A319 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 11/07/1979 |
| From: | Coll N FLORIDA POWER & LIGHT CO., STEEL, HECTOR & DAVIS |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7911290003 | |
| Download: ML17339A319 (34) | |
Text
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UNITED STATES OF AMERICA Q ~
NUCLEAR,REGUL'ATORY COMMZSS ION BEFORE THE ATOMIC SAFETY. LICENSING BOARD y ',~g 1l Ppr ~o
'e In the Matter of ) 'Docket Nos. 50-250-SP
) 50-251-SP FLORIDA POWER & LIGHT COMPANY ) (Proposed. Amendments to
) .Facility Operating License (Turkey Point Nuclear .Generating.. ) .to Permit Steam Generator Units Nos. 3 and 4) ) Repairs)
MEMORANDUM GF LZCENSEE RELATING TO UNTIMELY DZSCOVERY'his memorandum is submitted on behalf of Florida Power
& Light Company (FPL or Licensee) in. xesponse to the. instructions of the Licensing Board orally conveyed during a conference telephone call among the parties and the members, of -'the. Board on Friday',.
1 9 79 g November N mb 4, 4 1979. At the end of the second conference ca 1 1 the Chairman requested FPL to file, by Wednesday;,. November 7, a memorandum in support of its position that the Board should not, in the exercise of its authority under 10 CFR 5'.711(a)', extend the time for the Zntervenoz to submit a.document entitled: "Zntervenor Mark P. Oncavage's Zntezrogatories to, and Request for the Production, of Documents from, Licensee Florida Power and Li,ght Company" (Discovery Request). The Board also directed FPL to file Two lengthy conference calls were held on that date.
All three Board members, Messrs. Rogow and Marshall, Counsel for
.Intervenor Oncavage, Messrs. Coll and Reis, Counsel for FPL, and Mr. Goldberg, Counsel for the NRC Staff, participated in each call.
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on the same. date objections it had, other than the timeli-ness objection, to particular questions or requests for document production. contained in the Discovery Request.
Intervenor was di.rected to respond to both FPL filings by Tue'sday, November 13. 'he procedure was designed 'to give Board- an opportunity further to consider the positions
'he advanced by the parties in the conference calls and to make it possible to rule promptly both on the extension of time guesti,on and, should the Board grant the extension, on the objections to specifi,c discovery requests.+ This memorandum xelates only to. the question whether the extension of time should, be granted. FPL is submitt9,ng its objections to speci,fi,c aspects of the Di,scovery Request, in a separate document.
The Procedural. and Le al Context Xn its "Order Ruling on the Petition of Mark p. Qncavage~'f August 3, 1979 {August 3 order), the Licensing Board asked Presumably the Board wi,ll., in accordance with estgbli,shed practice., enter a written order on. any rulings resulti,ng from the conference calls. Paci.fic Gas 6 "Electric Co. {Diabal'o Canyon Nuclear Power Plant, Units 1 E 2), ALAB-334., 3 NRC,809, 814-815.
The material in that regard.
it requested. from, the parties should be of assistance
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the parties to meet. promptly in an. effort to .agree on con-tentions or enter into a stipulation, "to agree on a realistic discovery schedule ..." and "to keep the Licensing Board. informed on progress.". (p. 29)
The parties met on August 30/ 19'79I
-/'ated and, as reflected in a letter to the Board August 31, 1979, no stipulation or agreement concerning contentions was reached. However, the Intervenor and the Licensee did agree to propose an expeditious discovery and hearing schedule, with discovery on six admitted contentions to begin on August 31, i.e., at once; and the hearing to commence on December
- 4. The Staff agreed to the commencement of discovexy on August 31 but had certain other objections or reservati.ons about the schedule proposed by the Zntervenor and the Licensee.
After considering the positions of the parties, the Licensing Board, on September 25, 1979, issued an "Order Relative to Contentions and. DiscoVezy.." That order ruled on the admissibility and wording of the contentions to be con sidered: i,n this proceeding and estab'lished' schedule for discovery. and'earing. The Board modified the proposed schedule of the Licensee and the Zntervenor but still provided for expediti,on.. The September 25 ordex'et October 22, 1979 as the final'ate for filing discovery requests on all contentions; Earlier preliminary meetings and telephone discussions isclosed, that August, 30 was the fiist date all. of the parties could prepare fox and meet to discuss. the matters suggested by the Board.
November 30 as the final date for filing responses to discovery requests; December 21 as the date to file pre-pared testimony and January 8, 1980, as. the date on which the hearing is to commence. There is, of course, no question of the authority of the Board to. enter the order (see 10 CFR 5 2.718),
and no party has ever objected. to the schedule or requested that it be modified in any, respect or reconsidered.
Despite the Board's order fixing Monday, October 22, as the final date for filing discovery. requests, the instant Discovery Request was dated October 27, 1979, as was the accompanying certificate'f service. Zn fact, the envelope.
in which it was mailed was'ostmarked October 29. Promptly upon receipt of the Discovery Request, Counsel for the Licensee sent a letter to. the Licensing Board, and the parties stating that, absent. an order from the Board: pursuant to 10 CFR 5 2.711 extending the time to fi,le the Discovery Request, the Licensee would, treat, it. as a,, nullity. FolloWing receipt of the letter the Board initiated the conference calls.
The Discovery Request was dele.'vered to Licensee's Miami counsel on October 30,and to its W'ashington counsel'n Qctobeg 31.. Both were in Washington on, both days and neither had any opportunity to examine. the discovery. request until the evening of October 30. The Licensee's letter was hand delivered to the Board on October 31.
41 During the first conference call., counsel for the Licensee elaborated upon the position taken in its letter:
there had, been no stipulation entered into or even requested for an extension of time to file the Discovery Request; In-tervenor could not,, therefore, simply ignore, the time limits set in, the September 2S order; and if Intervenor is to obtain an extension,'t should be by way of a motion and Board order issued pursuant to 10 CFR 5 2.711(a), which provides:
Except as otherwise provided by law, whenever an act is. required or allowed to be done at or within a specified time, the time fixed or, the period of time prescribed ma for ood. cause be extended or shortene y t e Commzssz.on or t e presiding. officer, or by. stipulation approved by the Commission or the pre-siding officer. (Emphasis supplied.)
There was no disagreement with Licensee' position.
that. 10 CFR 5, 2.711(a) governs. Indeed, Mz. Rogow, counsel for the Intervenor, orally moved. for. such an order during the first conference call. As we understand .it,, the Board tentatively granted. the motion to extend time at the. end of 'that conference The burden. of proof of demonstrating good cause is on CLX- , NRC k;,:..
the Intervenor as the moving party;; 10 CFR 5 2.'732';, Con'so'lidated an, ( B.
Zt is particularly appropri,ate that the burden be placed upon the Intervenor here because ig there are any facts which can demonstrate good cause they are in his possession.
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call. However, as a result of disclosures made in discussions among counsel for Tntervenor and. Staff made between the two confezence calls and during the second call, the Board agreed to reconsidez its tentative ruling, directing the Xntervenor and Li,censee to address the, matter in writing.
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Consequently, the question presented is whether the Xntervenor has carried the, burden imposed upon him and estab-lished good cause for an extension of 'time to file the Di,scovezy Request. Ne respectfully submit that if he has not, the Board cannot, under the rules, extend the time. We demonstrate below that no showing of good cause has or can be made.
Lack of Good Cause At the outset, we emphasize that the situation here presented cannot. be regarded as one in which an isolated and inadvertent "mistake" has been made involving an insignificant
'ew days. The Xnter'venor:has-conducted. discovery in a, manner significantly di..fferent.-from, what..-was .implicitly and expl'icit2y represented. to the; Licensing'Board -i'n fi.'lings .which'led to the Board's.ozdexs. authorizing the'.lateintervention and fixing the. schedule., The chang'e'places a.:heavy.and-unfair burden on the-other. parties..
The necessarily i,nformal st;ructure of the conference call and the lack of a transcxipt. may make the description herein of t:he Board's rulings.and the discussi;on which led to them, less than precise. However., we believe the substance of the discussi;ons, and rulings refezzed to herein are described with accuracy.
The question before. the Board must. be examined in the context of the history of this proceeding., including disclosures made during the .conference calls.
The initi.al history is set forth in detail in this Board's August 3 order. There it. poi.nted out, that the petiti.on I
to intervene was more than a year late., that, no good cause for the lateness was establi.shed. and that considerable doubts existed as to the ability of the Zntervenor to contribute to a hearing. Zt appears from the opinions that the last minute appearance upon the scene of Xntervenor's present. counsel (together with the promise of expert witnesses)'eighed heavily in the ultimate decision to h'old'the hearing. See Board Opinion pp. 6-7; Paris Opinion, pp., 33-34., Moreover, the Board emphasized the impression conveyed by the, X'ntervenor's new attorneys that measures would be taken to avoid unnecessary delay. Describing the representations of one of Zntervenor's present counsel, the Board Opi,ni,on emphasized (p. 8):
He says that serious delay i;n the proceedings can .be avoided by a pre-hearing conference.to narrow and defi.ne the .scope of the'.hear'ing, by~:stipulations, and by submission of written materials without live testimony, and he maintains that any small time savings that would be gained by denying his petition for, leave to intervene would be fax out, weighed by the benefi.t to,be. deri.ved from venti,lating his contentions, Apparently at;least i,n part on the basis of such representations the Board concluded that "the effective
4l delay of granting the, petition would amount to a few months at most." (Board Opinion, p.. 26; emphasis in. original.)
Obviously, limiting delay to a few months contemplated con-ducting pre-hearing proceedings, including discovery, within a 'compact time frame. in which the parties cooperat'ed. and complied with deadlines. Zndeed., the Board urged prompt meetings among the parties, an attempt to stipulate on contentions
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and a realisti,c discovery schedule. (Board. Opinion, p. 29) .
The Board reemphasized this and its own willingneys to help resolve problems in its September 25 order. There it said:
The Board urges the parties to fully cooperate during discovery and, to make every effort to resolve possible differences. Zf any party determines.'a discovery request. is inappropriate and is not able to resolve the matter, the party ob)ecting should take immedi-ate action and not wai.t for the final day for filing the responses.
The message was clear: "begin discovery. promptly; try to work things out;- and if you have. problems bring them to the Board's attenti,on. as'uickly as possible."
The hope that stipulations, would be entered into in order to conserve time 'and, effort, originally suggested as a possibility by Intervenor, did not in fact eventuate--
even with:respect to contentions which the Board ultimately revised verbatim, as suggested by the Licensee.
II The NRC Staff acted'n this spirit.. On September 14, 1979, it served upon the Intervenor a set of interrogatories related to the admitted, contentions. On October 4, 1979, the Staff served similar interrogatories related to. the contentions admitted. i.n the September 25 order. Upon. review- of the Staff's interrogatories and in an effort not, to burden Xntervenor,'icensee did not serve any interrogatories or document requests on intervenor.
The intervenor was not heard. from at. all during the discovery pe iod. He did not answer the Staff's interrogatories. He never made an informal request for information
.or production. He never submitted a partial set. of interroga-tories or discovery requests directed to less than all of the contentions.
Qn October 23, after the cutoff fox filing discovery requests, Xntervenox's counsel Rogow called Licensee's counsel Coll, noted that the d'iscovery peri'od had expired,, but stated, nevextheless, that he intended 'to file discovery requests at some unspecxfied future date. He offered, no explanation, and did not ask Licensee to stipulate. to the late fi,ling.
Xn the first conference call on. November 2, 1979, Xntervenor.'s counsel Rogow said that the lateness, was due to the diffi,culty in obtaining expert assistance and the difficulty i,n coordi,nating 'the work of the lawyers and the experts. He said Zn fact, none have. been; answered to date.
0 10 the failure to reguest advance authority to file late was entirely his own fault and "mistake" and absolved Mr. Coll of any responsibility to act or advise the Board concerning their October 23, 1979, telephone conversation.
Mr. Rogow characterized the late filing as insignificant., suggesting that the Licensee be given an additional week to answer the interrogatories.
But. the matter is not. insignificant and the suggestion does not afford a substitute for good cause. Even in the absence of the background summarized above,, Intervenor has wholly failed to explain when his alleged difficulties arose or what measures were taken to meet them. At the time the intervention was granted, Intervenor represented, that Messrs.
K. Z. Morgan and Walter Goldberg would be available to assist him. No attempt was made to describe any, di;fficulty in obtaining their assistance, or coordination of their efforts as to di,scovery. No explanation has been given as to when the lawyers for Zntervenor started working on the Discovery Request and how much time they gave to it. No explanation has been given as to why at least some of the interrogatories could not have. been filed earlier. Xn short, the explanation for lateness i,s so unspecific thateven if taken at face value, it cannot support. a finding of good cause.
Moreover,; it appears that the late filing was part of a discovery strategy which 'is, wholly inconsistent with. what the Board and the other parties expected in view of the schedule which had been adopted. Xn the time between
II the two conference calls, Mr. Steven Goldberg, NRC Staff Counsel., called Intervenor Counsel Marshall to discuss pro-cedures'elating to summary -disposition. Mr. Marshall then:
disclosed for the first time that Intervenor intended to C
serve late interrogatories 'and document requests on the Staff and .may also seek still later to take depositions of Staff and Licensee witnesses.
Mr. Goldberg reported the disclosure at the start of the second conference call. Mr. Marshall explained in general. terms. that interrogatories are frequently followed by further interrogatories, document requests or depositions.
He addressed the matter as though the time l'imits essentially agreed to by the Intervenor and set by the Board were non-existent or meaningless. After further questions from the Board, Mr.. Rogow suggested that an attempt, to undertake further dis-covery from the. Staff might not actually be made, but he suggested .that any determination of, that'atter be deferred until such an attempt was made. Nevertheless, neither stated that no such efforts would be. made; rather, it appears that they were. attempting to reserve such rights to further discovery as they may have.
Pn the light of Mr. Marshall's subsequent disclosure, Mr.. Rogow's. explanation that the late filing of the instant Discovery Request was only a "mistake,"and an insignificant one at that, cannot withstand scrutiny. The Zntervenor ignored
0 l2 the understanding, that discovery. would be initiated early so that the Board would be. in a posi'tion to resolve disputes promptly. The Intervenor treats as of no significance the Board's express order setting the "'fff@nal date for filing discovery requests on all contentions." This l behavior is in sharp conflict with Xntervenor's ori.gi.nal representation that he would participate in. the proceeding, in a manner which would minimize delay.
Pre udice to Li.censee The Discovery Request is extensive and burdensome.
lt contains 69 pages, 276 numbered paragraphs and more than two thousand two hundred questions.'xtraordinary amounts of time of attorneys and administrative and technical personnel have already been consumed to determine whether the questions are, within the proper scope of discovery in this 'proceeding or are even answerable and whether documents are available.
Far from tailoring and refining the issues in dispute, or efficiently and fairly pursuing those issues,, Intervenor has improperly enlarged, the issues and materially contxibuted to delay in. preparation, for the hearing.,
These interrogatories'ould be. regarded as excessive and burdensome even if they had been filed at the earliest
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possible ti,me. Then, at least'he parti'es would. have had an opportunity to attempt to accommodate differences and the Board could ha4e resolved..remaining; differences in time for discovery to be completed without unduly interfering with case preparation.
Zn view of the contemplation. of the parties and the orders of the Board as. to.how discovery would be conducted, they would. have been both surprising and unduly burdensome if filed. technically on time hut late in the discovery period.
But filing them out, of time, under the signature of an attorney who belatedly. made it clear that he regards the filing as the beginning rather than the end-.of the discovery process, flies in the face. of what the Board ordered. and the other parties we'e led to believe was the understanding of all concerned.
To grant the Zntervenor's emotion to. Extend. the Time to Pi,le the. Discovery Request would unfairly impose substantial burdens upon Licensee. Licensee could not, reasonably be expected to respond to the 2,200 discovexy requests by the November 30 deadline, and, at the same time 'prepare its affirmative case in parallel and file its prepared testimony by the December 21 deadline. Xt is no answer. to, suggest an extension of the November 30 or December 21 deadlines, for Licensee, or to suggest any delay in the commencement: of the. hearing January 8, 1980,
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of those If eight requests, preliminary paragraphs are applied to each as set forth in the preface to the document, the requests actually total more than 16,000.
in order to accommodate the delay solely caused by Intervenor.
Throughout. this. proceeding, Licensee has emphasized its need to be in a posi;tion to make the. repairs when they become necessary or economical'ly desirable.. See August 3 order, p. 24. Delay in 'commenci.ng the .proceeding is inconsi,stent with, that objective.
Under the ci.rcumstances which have occurred in this proceedi,ng outli.ned above, we beli.eve the Board should deny the moti.on. Howevex', the Board has indi.cated that its pre-liminary reVieW of the Discovery Request discloses that it is probable that. some of the requests may be appropriate. Ne respectfully submit that the Board cannot substitute its evaluation of the validity of the 1liscovery Requests for the requirement of good cause which;must,be shown before they can be filed. HnWevev, from this statement by the Board, we detect a concern that if the motion. is denied, and no response made to the'D'iscovery" R'equests., certain information might not otherwise be available to the Board for its determination of the issues in this proceeding.
For that. reason, Licensee suggested a proposed procedure to the Board. and parties. which would accommodate this concern.
Pursuant to that procedure, we submit that upon receipt and. review of'his memorandum, and objections. to the discovery
.Requests by Licensee, and any potion to Compel from Intervenor,
41 0 15 the Board will be in a position to deny the motion for lack of showing'f good cause. However, the Board may at that, time review the Discovery Requests to determine the validity of Licensee's objections"to those requests which Intervenor elects to pursue by Motion to Compel and then determine. whether any information. sought .therein should be
. available to the Board. for. its. determination of the issues in this proceeding. Should.,it. make such a determination, it can then direct the Licensee, to. address those subjects in its prepared. written testimony. See, e.cC., "Orders Requesting Additional Information" issued in this proceeding October ll, 1979.
CONCLUSION This motion must be.,denied.. The alternative procedure .suggested by Licensee will assure development of a full and complete. record. without unfairly burdening or prejudicing the rights, of any party.:-
DATED thi;s 7th day of Respectfully submitted, November, 1979.
STEELg HECTOR 6 DAVIS~
Co-Counsel for Licensee, Florida Power 6 Light Company, 1400 Southeast First. National Bank Building, Miami, 33131.
Tel: ( 5) 577-286 By ORMAN A. C LL
~i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket. Nos. 50-250-SP
) 50-251-SP FLORIDA POWER & LIGHT COMPANY )
) (Proposed .Amendments to Facility (Turkey Point Nuclear Generating ) Operating License to Permit Units Nos. 3 and 4) ) Steam Generator Repair)
CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the attached Licensee>s Objections to Intervenor Mark P. Oncavage's Interrogatories to, and Request for the Production of Docurrents from Licensee, Florida Power and Li.ght Ccmpany, and Memorandum of Licensee Relating to. Un.timely Discovery captioned in the above matter were served on the following first
'y deposit in the" United States mail, class, properly stamped and addressed, on the date shown below.
- Elizabeth S. Bowers, Esquire Chairman Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555
- Dr. Oscar H. Paris Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555
- Dr. Emmeth A. Luebke Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555
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- Atomic Safety and Licens'ing Appeal Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Mark P. Oncavage 12200 S.W. 110 Avenue Miami., FL 33176
- Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission
-Washington, DC 20555
- Steven C. Goldberg, Esquire ='~
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, DC 20555 Bruce S. Rogow
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Joel V. Lumer Richard A. Marshall, Jr..
Counsel for Intervenor 3301 College Avenue Ft..Laudezdale, FL. 33314 Harold F. Reis, Esquire Lowen'stein, Newman, Reis, Axelrad 6 Toll 1025 Connecticut Avenue, NW Washington, DC 20036
- Bruce S. Rogow, Esq.
Nova University Law .Center 0&H4!h6 .
'oodwin Hall NORMAN A COLL 3100 S. W. 9th Avenue Fort Lauderdale, FL. 33315 STEEL CTOR & DAVIS
- Bruce S. Rogow, Esq. 1400 S utheast First National c/o Pearson, Josefsberg Bank Building 6 Tarre Miami, FL 33131 25 West. Flagler 'Street Suite 733 Mi ami., FL. Telephone: (305) 577-2S63 Dated: November 7, 1979
- Delivered to Union Courier for immediate hand delivery.Service, Inc. On November 7, 1979
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