ML19330B144
| ML19330B144 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 07/24/1980 |
| From: | Blake E METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8007300437 | |
| Download: ML19330B144 (10) | |
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oi DOCKETED USNRC JUL 2 81980 > q UNITED STATES OF AMERICA
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e NUCLEAR REGULATORY COMMISSION Branch 9
BEFORE THE ATOMIC SAFETY AND LICENSING BOAR _
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METROPOLITAN EDISON COMPANY
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Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
LICENSEE'S RESPONSE TO TMIA'S MOTION FOR RECONSIDERATION OF THE BOARD'S JUNE 25, 1980 MEMORANDUM AND ORDER I.
Introduction On March 31, 1980, TMIA deposed Diane Kay Gee, who is employed by Licensee as an administrative assistant.
TMIA received an unsigned copy of the deposition early in April 1980.
TMIA received Ms. Gee's signed deposition on May 6, 1980 and, on May 13, filed ten follow-on interrogatories based upon the March 31 deposition.
In its May 15 response to TMIA's follow-on discovery request, Licensee objected to the interrogatories as untimely and irrelevant.
In a two and one-half page filing dated May 29, TMIA moved to compel Licensee's response to the follow-on interrogatories.
On June 4, Licensee responded to TMIA's Motion To Compel.
In its response, Licensee elaborated on its earlier 8007300 N
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i objections to the follow-on discovery as irrelevant and untimely, and opposed the Motion To Compel as itself untimely.
The Board, by " Memorandum and Order" dated June 6, sua sponte granted TMIA permission to reply to Licensee's response to TMIA's Motion To Compel, stating that Licensee's response " raises issues.
which should be addressed by TMIA."
TMIA filed a brief " Response To Licensee's Response To TMIA's Motion To Compel Follow-On Discovery of Licensee" ("TMIA's Reply") on June 18, 1980.
On June 25, 1980, the Board issued a " Memorandum and Order on TMIA's Motion For Order To Compel Discovery of Licensee."
The Board's Memorandum and Order " reluctantly [gave] the nod to TMIA's counsel who [ won] on a technicality" the argument as to the timeliness of 4
the May 13 follow-on interrogatories, found TMIA's Motion To Compel i
itself untimely, and denied TMIA's Motion To Compel, ruling that TMIA had " failed to support its motion with argument and I
a demonstration of relevancy."
Now, by motion dated July 10, l
1980, TMIA asks the Board to reconsider its June 25 ruling j
denying TMIA's Motion To Compel.
Licensee opposes TMIA's
- /
Motion For Reconsideration.~
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TMIA's Motion For Reconsideration may be mooted by the Board's
,ruling on " Licensee's Motion For Sanctions Against TMIA," filed July 16, 1980.
Licensee therein moved that the Board dismiss TMIA Contention 5 (on which TMIA's May 13 follow-on interrogatories are based) in light of TMIA's failure to provide responsive answers to Licensee's interrogatories on that contention.
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II.
Argument Lice is prepared, if necessary, to stand on the merits of its arguments on the relevance of TMIA's follow-on interrogatories, which Licensee seasonably set forth, initially in its May 15 objections and in further detail in its June 4 response to TMIA's Motion To Compel, as required.
However, TMIA's Motion For Reconsideration demands a response, for several ree ins.
TMIA does not seek, by its Motion For Reconsideration, to present to the Board relevant facts or law previously unavailable to TMIA.
See, Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619 (1976).
Rather, TMIA's Motion For Reconsideration is its first attempt to demonstrate the specific relevance of its May 13 follow-on interrogatories to its Contention 5.
Its earlier discussions of relevance were bare conclusory assertions, without explanation or elaboration, as to the " thrust" and relevance of the interrogatories.
See " Memorandum and Order On TMIA's Motion For Order To Compel Discovery of License" (June 25, 4
1980), at pp. 4-5.
As the Board noted in its June 25 Memorandum and Order, Section 2.740 (f) of the Commission's rules of practice obligated TMIA to set forth arguments in support of its Motion To
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1 Compel.
TMIA failed to do this, ignoring its opportunity to timely address fully the relevance of its interrogatories and to relate each to the specific allegations of its Contention 5.
As the Board pointed out in its " Fourth Special Prehearing Conference Order" (February 29, 1980), at page 28, a motion to reconsider is ordinarily denied where the motion is in rc slity not an elaboration or refinement of previously advanced arguments but, instead, is based upon a new e
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l thesis.
Tennessee Valley Authority (Hartsville, Units lA, 2A, 1B and 2B), ALAB-418, 6 NRC (1377).
In the instant case, TMIA's Motion To Reconsider preJents its first thesis in support of the relevance of its interrogatories.
It would be manifestly inappropriate for the Board to reopen TMIA's Motion To Compel responses to-its May 13 interrogatories at this late date, after the issues have been briefed and decided, merely to have the Board consider for the first time arguments which TMIA was obligated to set forth in its May 29 Motion To Compel.
- See, e.g.,
Riss & Co. v. Association of Western Railways, 162 F. Supp. 69, 71 (D.D.C. 1958).
i TMIA's reliance on its apparent misreading of the Board's June 6 " Memorandum and Order" as support for its Motion For Reconsideration is unwarranted.
TMIA was not, by any construction of the rules of practice, entitled to a "second bite of the apple" -
an opportunity to reply to Licensee's response to TMIA's Motion To Compel - which the Board's June 6 " Memorandum and Order" provided.
Accordingly, TMIA should not be heard to argue that it now deserves a " third bite" because it misunderstood the size of the "second bite" permitted by the Board's June 6 " Memorandum and Order."
TMIA should have fully addressed both Licensee's timeliness and relevance objections in TMIA's Motion To Compel.
I If TMIA believed that Licc7see's response. raised issues which TMIA I
had not anticipated, TMIA should have sought leave of the Board to l-l l
I~
- reply to Licensee's response.
Similarly, even if TMIA read the Board's June 6 " Memorandum and Order" as limiting TMIA's Reply to the timeliness issue, TMIA should have sought leave of the Board to reply to other arguments (such as relevance) raised by Licensee's response, if TMIA judged such reply to be necessary.
If the bottom line of TMIA's argument for reconsideration is that the Board's June 24 " Memorandum and Order" led TMIA to believe that the Board was rejecting Licensee's relevance arguments (and needed further guidance from TMIA on the timeliness issues only), the.short answer is that no party is entitled to a pre-judgment indication from the Board as to the relative strength of that party's arguments, simply to allow the party an opportunity to supplement its weak arguments.
i Licensee further opposes TMIA's Motion For Reconsideration as untimely.
Though the Commission's rules of practice do not authorize motions for reconsideration of licensing baard orders generally, Sections 2.751a (d) and 2.752(c) do provide that
" objections" to a Special Prehearing Conference Order or a Prehearing Conference Order must be filed within five days of service of the order.
Section 2.771(a) provides that a party has only ten days after issuance of an entire Final Decision to file a petition for reconsideration of the Decision based upon the complete record in a proceeding.
Thus, though there is no explicit time bar to TMIA's Motion For Reconsideration, the fifteen day interval between the Board's June 25 Memorandum and Order and TMIA's Motion for Reconsideration is excessive under the circumstances presented here.
i
Presumably, TMIA had theorized the relevance of its May 13 follow-on interrogatories to its contentions before it served those interrogatories on Licensee.
As the Board itself has pointed out, TMIA was required by the rules of practice to include in its late-filed Motion To compel its arguments on, inter alia, the relevance of its follow-on interrogatories.
TMIA must have given some additional thought to the relevance of its follow-on interrogatories upon receipt of Licensee's June 4 response to TMIA's Motion To Compel, and surely further considered the matter in light of the Board's June 6
" Memorandum and Order."
Thus, any arguments on the relevance of TMIA's interrogatories should already have been well formulated in the mind of TMIA's counsel at the time he received the Board's June 25 Memorandum and Order.
TMIA's unwarranted delay in putting its arguments on paper in the form of a Motion For Reconsideration should not be countenanced by the Board.
III.
Conclusion For the reasons stated herein, Licensee opposes TMIA's Motion For Reconsideration as late-filed and without merit.
- However, should the Board decide to reconsider its June 25 Memorandum and Order, Licensee refers to " Licensee's Response Objecting To TMIA's
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Follow-Up Interrogatories of May 13, 1980" (May 15, 1980) and
" Licensee's Response To TMIA's Motion To Compel Follow-On Discovery of Licensee" (June 4, 1980) in response to the arguments TMIA now sets forth in its Motion For Reconsideration.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By Amut YhL Q, /
M:.rnest L.
Blake,'gr.Cdyt.
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Dated:
July 24, 1980
Lic 7/24/80
)
l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear
)
Stntion, Unit No. 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response To TMIA's Motion For Reconsideration of The Board's June 25, 1980 Me'uorandum and Order" were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 24th day of July, 1980.
Aun es n im_+
' '1Delissd 4. Rijgwdly G
Dated:
July 24, 1980 L
l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
SERVICE LIST Ivan W.
Smith, Esquire John A. Levin, Esquire Chairman Assistant Counsel Atomic Safety and Licensing Pennsylvania Public Utility Comm'n Board Panel Post Office Box 3265 U.S. Nuclear Regalatory Commission Harrisburg, Pennsylvania 17120 Washington, D.C.
20555 Karin W. Carter, Esquire Dr. Walter H. Jordan Assistant Attorney General Atomic Safety and Licensing 505 Executive House Board Panel Post Office Box 2357 881 West Outer Driva Harrisburg, Pennsylvania 17120 Oak Ridge, Tennessee 37830 John E. Minnich Dr. Linda W. Little Chairman, Dauphin County Board Atomic Safety and Licensing of Commissioners Board Panel Dauphin County Courthouse 5000 Hermitage Drive Front and Market Streets Raleigh, North Carolina 27612 Harrisburg, Pennsylvania 17101 James R. Tourtellotte, Esquire (4)
Walter W. Cohen, Esquire Office of the Executive Legal Director Consumer Advocate U. S. Nuclear Regulatory Commission Office of Consumer Advocate Washington, D.C.
20555 14th Floor, Strawberry Square Harrisburg, Pennsylvania 17127 Docketing and Service Section (21) l Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D.C.
20555
~2-Jordan D. Cunningham, Esquire Karin P. Sheldon, Esquire Attorney for Newberry Township Attorney for People Against Nuclear T.M.I. Steering Committee Energy 2320 North Second Street Sheldan, Harmon & Weiss Harrisburg, Pennsylvania 17110 3725 Eye Street, N.W.,
Suite 506 riashington, D.C.
20006 Theodore A. Adler, Esquire Widoff Reager Selkowitz & Adler Robert Q. Pollard Post Office Box 1547 609 Montpelier Street Harrisburg, Pennsylvania 17105 Baltimore, Maryland 21218 Ellyn R. Weiss, Esquire Chauncey Kepford Attorney for the Union of Concerned Judith H. Johnsrv.d Scientists Environmental Coalition on Nuclear Sheldon, Harmon & Weiss Power 1725 Eye Street, N.W.,
Suite 506 433 Orlando Avenue Washington, D.C.
20006 State College, Pennsylvania 16801 Steven C.
Sholly Marvin I. Lewis 304 South Market Street 6504 Bradford Terrace Mechanicsburg, Pennsylvania 17055 Philadelphia, Pennsylvania 19149 Gail Bradford Marjorie M. Aamodt Holly S. Keck R. D.
5 Legislation Chairman Coatesville, Pennsylvania 19320 Anti-Nuclear Group Representing York 245 West Philadelphia Street York, Pennsylvania 17404 l
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