ML20028B203
| ML20028B203 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 11/23/1982 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8211300165 | |
| Download: ML20028B203 (6) | |
Text
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ED November 237 g f ~D{,'gid UNITED STATES OF AMERICA r e NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, et al.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
APPLICANTS' ANSWER TO SUNFLOWER ALLIANCE INC.,
ET AL. MOTION TO EXTEND TIME TO FILE MOTION FOR LITIGABLE ISSUES By notion of November 10, 1982, Sunflower Alliance Inc., et al.
(" Sunflower") requests an extension of time to file a motion for litigable issues on Issue No. 3, quality assurance.
Granting Sunflower's Motion would cause an unnecessary delay in this pro-ceeding.
The motion should be denied.
The essence of Sunflower's argument in support of its motion 3 is not 'et complete.
Sunflower is that discovery on Issue No.
f claims that it consequently does not possess all of the informa-tion it needs to prepare a motion for litigable issues and to appropriately support the motion.
Sunflower further asserts that the fact that discovery is not complete is due to the Nuclear 1
Regulatory Commission Staff
(" Staff") having " suddenly and without warning... changed.its position" in responding to Sunflower's discovery requests.
Brief in support of Motion To 8211300165 821123 PDR ADDCK 05000440 gQ3 0
% Extend Time To File Motion For Litigable Issue Quality Assurance
(" Sunflower's Brief") at 1.b!
Sunflower's claim that it'has been prejgdiced by a " change in position" on the part of the Staff toward discovery requests is without merit.
The Nuclear Regulatory Commission's Rules of Practice limit the discovery of documents against the Staff to documents which are neither made available in the NRC Public Document Room n~or.~ easonably. obtainable elsewhere.
10 C.P.R.
r S2.744.
The Rules allow interrogatories to be addressed to the Staff only upon the prior finding of the Licensing Board that the answers 'are 'both 'necessary to' a proper decision in the proceeding and not reasonably obtainable from another source.
10 C.F.R. S2. 720 (h) (2) (ii).
Although the Staff has previously answered Sunflower's interrogatories voluntarily, the Staff has also made clear that it was not waiving its right to object to future discovery requests pursuant to the Rules.
- See, e.g.,
NRC Staff Partial Answer to Second Set of Interrogatories to NRC Staff by the Sunflower Alliance, dated August 2, 1982, NRC Staff Answer to First Set of Interrogatories to Staff by the Sunflower Alliance, dated March 3, 1982.
b[
The Staff objected to all but one of Sunflower Alliance et al. Third Set of Interrogatories (With Requests for Production of Documents) to NRC Staff
(" Third Set of Interrogatories to Staff"), dated September 30, 1982.
See Letter from J. M.
Cutchin to D.
C. Wilt (October 13, 1982).
. Sunflower thus has no basis for claiming unfair surprise on the part of the Staff.
Sunflower simply failed to make the showing required by 10 C.F.R. SS 2.744 and 2.720 (h) (2) (ii) when it served its most recent set of interrogatories on the Staff.
By failing to make the required showing, Sunflower invited the possibility that the information it sought would not be provided by the Staff prior to the deadline for filing a motion for
. litigable issues.
Moreover, Sunflower has not shown that answers to any of Sunflower's most recent interrogatories to the Staff are indeed necessary for Sunflower to file a motion'for litigable issues on Issue No.
3.
It must first be noted that Sunflower has been on the distribution list for every NRC inspection report since 1978.
Sunflower has also received extensive answers to its interroga-tores on Issue No. 3 from Applicants and the Staff -- including access to virtually every quality assurance document at Perry.
- See, e.g.,
Applicants' Answers to Sunflower Alliance, Inc. Third Set of Interrogatories to Applicants, dated October 29, 1982, at 10-11.
And almost all of Sunflower's most recent interrogatories to the Staff either inquire about generic Staff procedures other-wise unrelated to Perry (see interrogatories 3, 5, 7-13, 27-32),
or ask about information.already available in NRC inspection reports (see interrogatories 1-3, 15-18, 33, 34), or ask about matters unrelated to quality assurance (see interrogatories 4, 6,
21, 23-25).
Sunflower could easily have prepared its motion
' for litigable issues on quality assurance based on the informa-tion currently available to it.
Sunflower has no justification for allowing the deadline of November 15, 1982 which the Licensing Board established in its September 16, 1982 Memorandum and Order (Concerning Scheduling) to pass.
Finally, refusing to extend the deadline to file a motion for litigable issues will have no practical effect upon Sunflower's presentation of its case.
Sunflower simply mischaracterizes the consequences of not being able to file a motion for litigable issues when it says that the quality assurance contention will thereby be " dismissed".
Sunflower's Brief at 2.
Issue No. 3 will only be dismissed from this proceeding if the Licensing Board grants the NRC Staff's Motion for Summary Disposition of Issue No.
3, dated October 29, 1982.
Sunflower will have a chance to respond to that motion and to show that genuine issues of material fact exist with respect to Issue No. 3.
For all these reasons, Applicants respectfully request that Sunflower's motion be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By:
D, c/
AY SILBERG, P C
1 for Appli ts 1800
- Street, N.W.,
Suite 900 S Washington, D.C.
20036 (202) 822-1063 DATED:
November 23, 1982
00tKETED UwRC November 23, 1982 12 NOV 26 P1:41 UNITED STATES OF AMERICA g3 7 ;gue.jAs1 7
00C$lig'gERVICE NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, et al.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)-
)~
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Applicants' Answer to Sunflower Alliance Inc., et al. Motion to Extend Time to File Motion for Litigable Issues" were served by deposit in the U.S.
Mail, First Class, postage prepaid, this 23rd day of November, 1982, to all those on the attached Service List.
f A N SILBEflG Jy 3.
DATED:
November 23,'1982 I
j
)
i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
]
In the Matter of
)
).-
THE CLEVELAND ELECTRIC.
)
.Do'cket Nos. 50-440 ILLUMINATING COMPANY
)
50-441
)
(Parry Nuclear Power Plant,
)
Units 1 and 2)
)
SERVICE LIST Atomic Safety and Licensing Board',
. Atomic Safety.and Licensing.
Pater B. Bloch, Chairman Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.'
20555 Dr. Jerry R.
Kline Docketing and Service Section Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Frederick J.
Shon James M.
Cutchin, IV, Esquire Atomic Safety and Licensing Board Office of the Executive U.S. Nuclear Regulatory Commission Legal Director Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Christine N.
Kohl, Chairman Atomic Safety and Licensing Ms. Sue Hiatt Appeal Board OCRE Interim Representative l
U.S.
Nuclear Regulatory Commission 8275 Munson Avenue l
Washington, D.C.
20555 Mentor, Ohio 44060 l
Dr. John H.
Buck Daniel D. Wilt, Esquire l
Atomic Safety and Licensing Post Office Box 08159 i
Appeal Board Cleveland, Ohio 44108 l
U.S. Nuclear Regulatory Commission l
Washington, D.C.
20555 Donald T.
Ezzone, Esquire
~
j Assistant Prosecuting Attorney Gary J.
Edles, Esquire Lake County Administration Center Atomic Safety and Licensing 105 Center Street Appeal Board Painesville, Ohio 44077 1
U.S.
Nuclear Regulatory Commission l
i Washington, D.C.
20555 John G. Cardinal, Esquire l
Prosecuting Attorney I
Atomic Safety and Licensing Ashtabula County Courthouse Jefferson, Ohio 44047 Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Terry Lodge, Esquire 915 Spitzer Building Toledo, Ohio 43604 i
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