ML20034H823
| ML20034H823 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 03/10/1993 |
| From: | Knotts J PACIFIC GAS & ELECTRIC CO., WINSTON & STRAWN |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#193-13722 OLA, OLA-2, NUDOCS 9303220115 | |
| Download: ML20034H823 (10) | |
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1:0LMET ED U: March 10, 1993
~93 WS 15 P2:58 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION,,
g BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
)
)
Docket Nos. 50-275-OLA b
Pacific Gas and Electric Company
)
50-323-OLA
)
(Construction Period (Diablo Canyon Nuclear Power
)
Recovery)
Plant, Units 1 and 2)
)
)
PACIFIC GAS & ELECTRIC COMPANY'S RESPONSE i
TO TNTERVENOR'S MOTION FOR EXTENSION OF DISCOVERY PERIOD I.
INTRODUCTION By Motion dated March 4, 1993,l' the intervenor San Luis Obispo Mothers for Peace ("MFP") requested an extension of the discovery period in this proceeding. Under the schedule previously adopted by the Licensing Board, all discovery requests were to be.
filed by March 8, 1993.2/
MFP now requests that this period be' extended for a period of seven days after an upcoming visit ~by MFP to the Diablo Canyon Nuclear Power Plant ("DCPP"), "for the ' limited purpose of conducting. follow-up! discovery related to ' the. site visit."
Motion at 6.
As explained more fully below, Pacific Gas and Electric Company ("PG&E") objects to the blanket 7-day extension requested l
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" San Luis Obispo Mothers for Peace Motion for Extension of Discovery Deadline," March 4, 1993.
2' F_qg, Memorandum and Order (Discovery and Hearing Schedules), at-j 3 (February 9, 1993).
9303220115 930310
-PDR ADOCK 05000275 C
by MFP.
However, in the spirit of cooperation, PG&E would not oppose a single 7-day extension until March 23, 1993, solely for the purpose of follow-up discovery limited to Contention I..
(Maintenance) and limited to information on the maintenance practices associated with a sample of three specific components.
Such focused maintenance discovery would be consistent with the approach originally suggested by MFP's initial discovery request in this proceeding.
As MFP knows, PG&E has offered for over a month' to make such information available to MFP, but MFP so far has declined to provide a list of sample components.
With regard to Contention V (Thermo-Lag), as admitted, MFP has demonstrated no reason why follow-up discovery is necessary
[
t given the contention's narrow scope.
Since October 1992, MFP has had a copy of PG&E's response to NRC Bulletin 92-1, Supplement 1, which fully describes PG&E's interim compensatory measures in Thermo-Lag fire areas.
In addition, PG&E's responses ' to MFP's interrogatories and document requests on Thermo-Lag (also being filed today) will provide MFP with all existing data on PG&E's implementation of interim compensatory measur'es.
Further, PG&E believes that a limited extension of the discovery schedule should be the last extension of discovery in this proceeding.
PG&E is opposed to a) further extension (s) of the discovery period, which would serve only to unnecessarily delay resolution of this proceeding, and to b) further " rounds" of discovery, which would represent an unwarranted resource burden on PG&E.
The discovery opportunities allowed in this proceeding to l l-L i
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by MFP.
However,'in'the. spirit lof cooperation, PG&E'would not oppose a_ single:7-day extension until March 23, 1993, solely for j
the. purpose of-follow-up' discovery limited to Content'on'=I-i (Maintenance) and limited to information ;on the : maintenance' s
i practices associated with a sample of three specific components.
Such focused maintenance discovery would-be consistent with the,
l approach originally suggested by MFP's initial discovery request in
.r this proceeding.
As MFP knows, PG&E has offered for over a month to make such information available to'MFP, but MFP-so far.has
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i declined to provide a list-of' sample components.
i With regard to Contention V (Thermo-Lag),- as admitted, I
MFP has demonstrated no reason why follow-up discovery is necessary given the contention's narrow scope.
Since October 1992, MFP has
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had a copy of PG&E's response to'NRC. Bulletin 92-1,'. Supplement 1,.
t which fully describes PG&E's interim compensatory mea'sures -in Thermo-Lag fire areas.
In addition, PG&E's responses to MFP's
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interrogatories and document requests on Thermo-Lag -(also being'
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filed today) vill provide MFP with all existing _ data on PG&E's?
implementation of interim compensatory measures.
1 Further, PG&E believes that-a limited-extension of the discovery schedule should be the last extension of discovery.in 1
this proceeding.
PG&E is opporad_ to a) further extension (s) of the
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discovery period, which would' serve only to unnecessarily delay resolution - of this proceeding, and to b) further- " rounds".of.
discovery, which would represent an unwarranted resource burden.on?
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PG&E.
The_ discovery opportunities allowed in this proceeding to l H 5
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date, along with those presented by theLupcoming site visit and the requested supplemental discovery period, are more than sufficient to allow MFP'a fair hearing, given the limited nature and narrow scope of issues admitted in this proceeding.
II.
DISCUSSION PG&E has indicated repeatedly its desire to' cooperate in.
this proceeding in meeting MFP's discovery needs, at least to the extent requested discovery is permissible and within the scope of the admitted contentions.
Toward this end, PG&E has been working informally with MFP's representatives to arrange the site visit previously requested by MFP.I' PG&E has provided MFP's consultants with information and documents, outside the context of the various pending formal discovery requests, in order to assist ' them in planning and preparing for the site -visit.
This has included copies-of maintenance procedures, a copy of the plant "Q-list," as.
well as a list of maintenance activities scheduled for.the week of March 15, 1993.
The express purpose of these efforts has been to assist MFP's consultants focus the visit on pertinent sources of information and thereby increase its efficiency and productivity.
MFP also acknewledges, in its Motion, that "PG&E. has committed to making an effort to respond to the [first set of MFP]
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MFP, in its Motion, indicates March 15 and 16' as p'ossible days for the site visit.
However, even when pressed,' MFP has never.
confirmed these dates to PG&E.
Due to a recent change in plans creating conflic: ting schedules at the plant, PG&E 'can no longer accommodate the March 15 date.
PG&E-has : proposed March 16 and 17.,
b (tg
g interrogatories during the week prior to March'15, even though the'
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answers are not due until March 19. "
Motion at 4.
This effort is being made by PG&E, at MFP's request, so that MFP'may have the discovery information in advance of the site visit.!'
In essence, in the spirit of cooperation and in order to facilitate MFP's. site visit, PG&E has already shortened the time it has been allotted to respond to MFP's first set of interrogatories and requests for.
documents.
Viewed in context, it becomes clear that the site visit
-- requested by MFP as a discovery device -- is being used by MFP to drive the discovery schedule in two directions; both adverse to PG&E.
As is clear from the recent developments discussed above, the site visit has necessitated hastening of PG&E's response to its interrogatories and document requests. Now, in the current Motion, MFP argues that the site visit will necessitate further " follow-up" discovery after the visit.
It is indeed ironic that 'if MFP had.not opted for a site visit as a.means of discovery, none of these
" problems" would have arisen.
In choosing discovery, parties should generally be required to adhere to the schedule adopted by the Licensing Board in its February 9, 1993 Memorandum'and Order.,
As now proposed, MFP's "first round" discovery would entail three bites at the proverbial discovery apple:
(1) initial requests d'
PG&E's stated goal was to respond to MFP's pending interrogatories and document requests, in full or in part, during the week of March 8, 1993.
PG&E is in fact filing responses to the Thermo-Lag discovery requests by overnight delivery on March 10.
PG&E currently plans to file responses to the maintenance requests one day later.
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. s filed by March 18, 1993 (to date, constituting voluminous documenti requests and ' interrogatories) ;
(2) the ? site visit, ' which i vill' p
involve a tour of relevant plant-areas, observations of' relevant j
plant activities _(e,q,,
fire-watches, maintenance activities), andc review of more documents; and (3)'" follow-up" discovery, ~which q
1-could presumably involve any of the discovery techniques allowe"d byf NRC's Rules of Practice..Moreover, MFP' implies in its Motion'that.
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the requested extension may not be the 'last'.I' j
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PG&E objects' to the open-ended, unfocused extension-l requested by MFP.
However, as stated above, PG&E _would not-object l
!y to an extension to March 23, 1993, if the additional discovery.
opportunity were limited to Contention I --(Maintenance) _ andI to 1
, :I information'on a sampling of three components._ If this additional-j focused discovery period will forestall _ future. motionsfor-
]-i additional discovery, then the interests of all parties-would seemL i
to favor the extension.
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LIn addition, since'PG&E, this week will be providing MFP
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'i with a substantial amount of maintenance information in response to ll the pending interrogatories and';documentI: requests, such lan
- extension should be tied to a firm date rather than the site visit.-
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Although the visit could 'be completed next week ' as' has been discussed, it remains up.to MFP to set a date (which PGEE can i
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MFP specifies in its Motion, at 6, n.5, that?"SLOMFP may also
-l need to _ seek an opportunity 'for' follow-up discovery on PG&E's -
1 responses to our first round of,' interrogatories and document j
requests.....
At this time, we are requesting an extension I
only::for_ the purpose' of conducting follow-up discovery regarding the site visit." !l
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- support) and to attend ' (PG&E has suggested March 16 and 17).
PG&E has no desire for.this visit to be delayed, or for " follow-up" discovery to remain open if MFP does not schedule the visit.
Any such delay would in turn prolong all else to follow in this proceeding.
In anticipation of the possibility of a series of similar requests from MFP, the. extension of discovery' should also be conditional on a
concomitant ruling that precludes further extension (s) of the discovery period by MFP in this ' proceeding.
MFP has already filed a significant number of interrogatories and document requests.
The issues admitted in this proceeding. are narrow in scope and neither unduly complex nor subtle.
The types-
.of information required by MFP would seem to be readily apparent.
Accordingly, the need for a further round of discovery as suggested by MFP (Motion, at 6,
n.5) is highly suspect.
Despite i MFP's continued misinterpretation, Contention V (Thermo-Lag) is confined to the narrow issue of the adequacy of the implementation of
' interim compensatory neasures at DCPP.
Between the discovery already requested and the upcoming site visiti, PG&E cannot fathom what further discovery might be necessary on this issue.
With respect to Contention I'(Maintenance), MFP already has requested a substantial amount of information pertinent to maintenance and surveillance at DCPP.
This will be amplified during the upcoming site visit, where documentation will also be available for review.
The prospect of further, open-ended - discovery in this area is inconsistent with the Commission's guidance on discovery in its
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proceedings and with a fundamental notion of economy in the discovery process.
As has been articulated by the Commission, focused discovery as well as Licensing Board management and guidance of i
discovery processes are necessary to expedite hearings through the disclosure of-relevant information. See Statement of' Policy on Conduct of Licensina Proceedinas, CLI-81-8, 13 NRC 452, 455 (19 81).f' Moreover, each "round" of discovery places a burden on PG&E's resources in order to respond to the requests.
Discovery in this proceeding should therefore remain efficient and focused on the issues raised by Contentions I and V,
All parties to this proceeding have an interest in moving forward toward resolution and avoiding further unwarranted extension (s) of the discovery period
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i previously established by the Licensing Board.
s III.
CONCLUSION As discussed above, PG&E objects to MFP's Motion.
PG&E would not oppose, however, an alternative limited extension to March 23, 1993.
This extended opportunity for discovery would-be limited to Contention I, and would be required to be focused on a
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sampling of maintenance practices on three components.
The i.
f' Similarly, it is impermissible under NRC practice to use the discovery process as a " fishing expedition" to uncover new bases.for contentions or new alleged problems. Vermont Yankee.
Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
LBP-8 8-25, 2 8 NRC 3 94, 3 9 6, (1988); Houston Lichtina and Power Co.
(South Texas Project, Units 1 and 2 ), LDP-8 6-8, 23 NRC 182, 188 (1986); Illinois Power Co.
(Clinton Power Station, Unit 1), LBP-B1-61, 14 NRC 1735, 1741 (1981).
extension would be tied to a fixed date rather than to the, 'as yet, unscheduled site visit.
In addition, PG&E's agreement to such a' limited ' extension is premised upon the expectation that this additional discovery opportunity will be the final discovery opportunity in this proceeding.
Respectfully submitted, Joseph B.
Knotts,'Jr.
David A. Repka Kathryn M.
Kalowsky WINSTON & STRAWN 1400 L Street, N.W.
Washington,'DC 20005 (202) 371-5700 "hristopher J. Warner Richard-F. Locke PACIFIC GAS AND ELECTRIC COMPANY 77 Beale Street San Francisco, CA 94106 Attorneys for Pacific Gas and Electric Company Dated in Washington, DC this 10th day of March, 1993 l',
UNITED STATES OF AMERICA
,yg NUCLEAR REGULATORY-COMMISSION 6%%
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD WiR 15 P2:58
')
In the Matter of:
) ~
Docket Nos.!505275-0I$
/In. c
)
Pacific Gas and Electric Company.
)
50-323"OLA
)
(Construction Period (Diablo Canyon Power
)
Recapture)
Plant, Units 1 and 2)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " PACIFIC GAS & ELECTRIC COMPANY'S RESPONSE TO INTERVENOR'S MOTION FOR EXTENSION OF DISCOVERY 1 PERIOD" in the above-captioned proceeding'have been served on the.following1by.
deposit in the United States mail, first class, or as indicated'by an-asterisk (*), by Federal Express overnight delivery, or as indicated by two asterisks
(**), by hand delivery, this 10th day of March,1993.
In addition, for those parties indicated by the (t) symbol, duplicate service by facsimile has been made.
Charles Bechhoefer, Chairman **(t)
Frederick J. Shon **(t)
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission' Washington, DC 20555 Washington, DC 20555 Jerry R. Kline**(t)
Office of Commission Appellate Administrative Judge Adjudication Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Office of the Secretary Ann P. Hodgdon,IEsq.**(t)
U.S. Nuclear Regulatory Commission Office of the' General-Counsel Washington, DC 20555 U.S. Nuclear Regulatory Commission Attn:
Docketing and Service Washington, DC 20555' Section (original + two copies)
Adjudicatory File Peter Arth, Jr.
Atomic Safety and Licensing Edward W.
O'Neill Board Panel Peter G.
Fairchild U.S. Nuclear Regulatory Commission California Public Utilities' Washington, DC 20555 Commission 505 Van Ness Avenue San Francisco, CA 94102 L
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t Nancy ' Culver,j President (t)1 Truman Burns
' Board of Direct! ors
' California Public Utilities
- San Luis;Obispo. Mothers for Peace-Commission
~P.O.: Box 1641 505: Van Ness;"Rm.-4103 i
L
' Pismo? Beach, CA 93448
. San. Francisco,' CA-94102-J
'Roberk R.1 Wellington, Esq.-
Richard F..Locke,1Esq._.
Christopher J..; Warner, Esq.,
Diablo: Canyon. Independent Safety Committee Pacific; Gas' f ElectricLCompany'
'857fCass Street,? Suite D 77 Beale.' Street-Monterey, CA 93940 San-Francisco, CA 94106-Robert Kinosian Jill'ZamEk*
e California-Public Utilities' 1123--Flora Road-Commission-
' Arroyo Grande, CA-93420 p
-505 Van Ness, Rm. 4102 San Francisco, CA-.
94102 Mr. Gregory: Minor *(t)
MHB Technical Associates 1723 Hamilton Ave., Suite K l
San Jose, CA 95125 4
-=
David.A..mRepka l
Counsel for.PacificEGas,&
Electric. Company.
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