ML20053E097
| ML20053E097 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 06/01/1982 |
| From: | Miller D MILLER, D.S., SENSIBLE MAINE POWER |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA, NUDOCS 8206070601 | |
| Download: ML20053E097 (9) | |
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UNITED STATES OF AMERICA "NN NUCLEAR REGULATORY COMMISSIGH T-
- iM 03 before the ATOMIC SAFEfY AND LICENSING BOARD In the Matter of
)
Docket No. 50-309-OLA
)
MAINE YANKEE ATOMIC POWER COMPANY,
)
To Increase and 11odify
)
(Maine Yankee Atomic Power Station), )
Spent Fuel Pool Storage
)
Applicant. )
and Systems; Compaction SMP'S RESPONSE TO APPLICANT'S MOTION FOR PROPOSED SCHEDULE OF FURTHER PROCEEDINGS Pursuant to 10 CFR 82.730, Intervonor SMP here responds to Applicant's Motion for Proposed Schedule for Further Proceedings as presented May 17, 1982.
For the grounds and reasons more particularly set forth below, SMP respectfully requests that Applicant's Motion be denied as presented, or alternatively that it be granted subject to the amendments or conditions set forth herein.
Narrative Statement of Facts Because of the potentially misleading nature of several asser-tions in Applicant's motion, a statement of facts relative to those points is considered appropriate here.
On April 29 or 30, 1982, SMP counsel received a telephone call from NRC Etaf f Counsel in which the latter related a schedule for further proceedings being proposed by Applicant's counsel.
The schedule as related by Staff counsel is set out on the first page of a letter from SMP counsel to Applicant's counsel dated May 12, 8206070601 820601 PDR ADOCK 05000309 0
PDR w
I 19e2, appended as "SMP Exhibit 1",
the appropriate portion of which; letter is here incorporated by reference.
i Early in the week of May.3rd, Applicant's counsel telephoned SMP counsel relative to the schedule proposed.
SMP counsel stated that he had received notice of the same from Staff Counsel, and read the propocod schedule to Applicant's councol for' verification.-
i Applicant's counsel acknowledged the accuracy of the same and in-quired whether or not SMP counsel would acceyt it.
SMP counsel responded by inquiring as to the possibility of gaining more time for discovery.
Applicant's counsel answered that his original.
schedule had allowed about thirty days for discovery, eventually T
addin8 that if SNP counsel asked for more time than was al, lowed in the proffered
'ule "the Board will take your head - of f".
This conversatiou ;oncluded upon the un(erstanding that 'SMP "coun-sel Would reduce his concerns'and coun,terproposals to writing and transait the same to Applicant's counsel bithout unreasonable delay.
Early the next week (of May 10th) SMP counsel telephoned Appil-I cant 's counsel to/ reassure Applicant's c )unsel that the writteni s
rouponse noted'above was being prepared and would be transmitted shortly.
Applicant's counsel responded with thahks for the call j
and a statdment that "if the parties don't agree I'll just have -
to go to the Board and say 'Look, Judge, the Intervenors are act-3n ing like horses' asses, could you give me some relief?'".
SMP counsel replied 'that' while Applicant 's counsel's characterization of Intervenors might possess occasional applicability, still it ueemed best for the parties to maintain communications in pursuit
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of agroomont upon a ochedule.
SMP councol continued working on the letter to Applicant's coun-cul, finally mailing the same May 13 1982.
SMP councel received a tolophone call froa Applicant's counsol that day and informed Appli-cant's councol that the lutter had buon mailed that mornin6 SMP counsol then awaited negotiations with Applicant's councol on re-1 fining or compromicing the various proposals upon scheduling.
No I
cuch comuunication was forthcoming from Applicant's councol, and on May 20, 1982, SMP counsel rocoived a copy of the instant notion.
SMP ' counsel has undertaken to state theco facts because certain of Applicant's cotion, and in particular paragraph 3 on page 1, would scom to portray SMP as come sort of obdurate troublemaker here.
Such 1c not the case and SMP respectfully objects to such characterization.
i Also upon the facts here stated it was and remains the impres-sion of undersigned counsol that Applicant 's "tako-it-or-leave-it" position did' little to encourage and much to discourage any real effort at negotiations here.
It also boars mention that Applicant agreed to a thirty-day enlargement of discovery upon EIA and SER contentions with both Staff and Maine, a compromise never offered to SMP.
Thus SMP and its counsel respectfully take exception to any i
part of Applicant's motion tending to portray them as intractable spoilers unwilling to negotiate; the plain fact of the matter, at least within the understanding of undersigned counsel, is that negotiations were discouraged from the outsot.
Last, SMP and its counsel thank the Board members for their attention to this part of our Responso.
While the iscuo may coom.. - -
ulnor to uo:no, wo believo it is important to make au true, completo and accurato a record as poccible on all points in the ense.
Supolomontary Comment and Arcument unon Applicant's Proposed Schedulo SMP now roepectfully directs the attention of the Board to the letter of liay 12, 1982, from SMP counsel to Applicant's councol, here incorporating the entirety of the cano by reference.
The conoral conciderations there discucced, and the more specific re-aponcos, objectiona and recommendations mado, wil not be reiterat-od here.
Hathor S'!P urgos the Board to treat tho following com-cents and argumento as supplomontary to and explanatory of the positions taken in said lotter.
1.
Commencoment of Discovery:
SMP took the stated position on commencing diccovory simultaneously upon all admitted conton-tions for coveral reasons:
(a)
Information contained in the EIA and SER is highly liho-ly to favor, if not in fact to require, amendment of admitted con-tentions; by way of example only, new or additional information from those cources could so change, diminish or ronder inapplicable the stated basis of a contention as to necessitato the thorough rodrawing of that contention; (b)
Information contained in the EIA and SER is also highly likely to influence, and qutto significantly influence, the thrust of Intervonors' discovery; otherwise stated, new or additional in-formation. from those sources could on the one hand obviato discov-ory upon lasues now being prepared, and at the same time require much more tuorough discovery into areas not yet contemplated; i
(c)
Tho "staccored discovery" proposed by Applicant burdens 1, -
Intervonors with a duty of simultaneous pleading and discovery that would soom to lucrease the complexity and confusion in this unprocedented caso; SMP respectfully submits that the more plain and forthright thoso proceedings be kept, the more liholy we are to "got titis caso right" on the first try.
2.
Lencth of Discovery: SMP defends, although we do here amend, our statod position on the nood for a full and fair dis-covery period in this caso.
The letter of May 12, 1982, communi-catos SMP's counterproposal of 180 days for discovery; Applicant's proposed schedulo as amended in its motion contoaplatou 60 days on each " sot" of contentions; and we now respectfully request the Board to coupromiso those proposals at 120. days.
In support of this request we urge the Board to recognize three realitics apllicable here: (a) First, and duo largely to a shortage of funds, SMP must proceed priuarily by written interroca-tories; while the law puta no premium on poverty, yet the right of a party to prepare its caso in this proceeding should not be made to turn upon the sort of discovery it can afford; (b) Second, and in corollary to the forogoing, it can also be recognized that an-swers to interrogatories, for whatever reason, may be unresponsivo, incomplete, or othorwiso insufficient, requiring second or third inquiry into the samo subject aroa beforo a complete or satisfac-tory answer has boon obtainod; and (c) Third, given that we have the admitted lead time of four or five years in this case, a dis-covery period of four months seems a reasonablo expenditure of
" affordable time".
3 Recognition of Need for, and Moans for Governing, Extension or Enlargement of Discovery Period: The purpose of SMP's recommend-
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ation upon thic point is uccontially two-fold: Firat, exprocaly to acknowledge and protect the rights of all partion to full and fair diccovery in thic caco; and cecond, to obviato, or at least reduce, the need for extended curative motionc practico cometiuo later on.
It 1c not difficult to postulato a cituatinn in which, for whatever reacon, a party or partiou might fail or be unable to comply in furniching full and timely disclocuro of desired infor-mation.
sihat then noot likely encuou?
The uiccovered party movec for an c::tencion, for a protectivo order, or for cuch other relief as it may doca appropriato - and the diccovering party cocho what-over canctions, onlargomento, or other roller ao it thinka may be marited -- all ultimately including, in ovary reasonable likollhood, the postpnneraont of the cuppocodly "laat day" for discovery in thic Caco.
The cuggestion undo, however inartfully drawn, was propocod to deal with auch eventualitloc in a reasonably expeditious and equit-able manner, and for that reason it is here dofonded.
In conclusion upon the forogoing iccucc, SIP respectfully urges thic Board:
(1)
To order ciraultancouc discovery upon all contentions in i
thic caco, coincident with its ruling upon the adticcibility of EIA and SER contentionc; (2)
To comproraice the propocod discovery periodo at 120 daya; and.
(3)
To adopt a statocont exprocaly recognizing and governing delay or dicruption in the discovery cchedule.
Recpoctfully submitted, David Santee Miller Councol for S. M. P.
213 Morgan Street, H. W.
Washington, D. C.
20001 Telephone:(202)638-0483*
CERTIFICATE OF SERVICE T hereby certify that on June 1, 1982, I made cervice of the inctant Responce and Exhibit by mailing copico thereof, first clara recular nail postace prepaid, to:
Robert M. Laco, Esquire Jay M. Gutierres, Ecquire Atoaic Safety & Lcnag. Bd.
Office of Exec. Legal Dir.
U. S. Iluclear Regulatory Cman.
U. S. liuclear Regulatory Cman.
Wachington, D. C.
20555 WashinCton, D. C.
20555 Dr. Cadet II. I!and, Jr.
Thouac G. Dignan, Ecquire Director, Bodega Marine Lab Ropec & Gray University of California 225 Franklin Street Poct Office Bo:: 247 Bocton, MA 02110 Bodega Bay, CA 94923 Rufus E. Brown, Ecquire Peter A. Morris, Esquire Deputy Attorney General Atomic Safety & Lenog. Bd.
Dept. of the Attorney General U. S. !iuclear Regulatory Cmon.
State House - Station 6 Washington, D. C.
20535 Augucta, ME 04333 David Santee Miller Counsel for S. M. P.
- Councel for SMP wishes to advice the Board and parties to this proceeding that he will be absent from the noted addroco and telephone number from June 10, 1982, through June 20, 1982.
During this period he can be reached, or meccagea can be left, at (207) 633-4102.
DAVID SANTEls MILLEll ATTOHNEY AT LAW 213 MonUAN NTussT. N. W.
WAmuswuTow. D. C. 20001 esoas...-o...
May 12, 196d Thomau G. Dignan, J r., Esq.
Ropeu 6 Gray 22S Franklin Street Bouton,ilA 02110 Re:
Discovery in DRC Intervention Proceeding; Docket lio. S0-309 OLA;
Dear Mr'. Dignan:
This in to communicate SMP's responce to a schedule proposed by you in the above-captioned matter.
Said proposed schedule, via Staff Counsel Jay Gutierrez, I understand to be as follows:
Day X EIA and SER are icuued; discovery begins; X+ 30 Contentions due on EI A and SER issues; X'4S Reply by Applicant and Staff; X+ 60 Intervenors' Surrebuttala due; X+ 80 Suggested time for decision on SIA-SER issues; X+ 110 Laat, day for discovery requests; X+140 l<equests or Motions for Summary Disposition; X+160 Responses to came; X'18S Decision on same; X'215 Prehearing Conference, or Hearing, as appropriate.
Before detailing SMP's responses, objections and recoa..r.enda-tions relative to developing a fair and reasonable schedule for the conduct of these proceedings, I wich to state so.co general factora and considerations which I believe bear.contion.
Perhaps most cignificant and comprehenatve amongut these in that we all avoid a "ruch to judguent" in this case.
While my experience is probably the least of any attorney's participating, yet I have learned that the more hastily prepared and the more hastily tried a case is, the more likely it is to be retried uometime later on.
Given the limited sourcoc of SMP, the fact that Applicant's counsel fees are ultimately born by the rate-payers, and that neither Maine nor the Commiccion itself has un-
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limited resources of either time or money, I suggest that it la in the best interests of all to "get this case right" on our first try - and I further suggest that such result is uore likely to flow frou a deliberate, rather than a hurried, approach.
M P Ex w s r1
Mr. Dignan May 12, loca Pade Two dot unrelated to the foregoing is the recognition that Appli-cant is of course most fortunate in its representation by an ac-knowledged expert in this legal specialty; SMP is not so fortunate.
While the law putu no premia:n on outr16ht incoupetency of counsel, I nonetheless urge you to recognize that SMP may prove less speedy and efficient than Applicant at propounding anc responains to ois-covery in thic casu.
Perhaps your first intervention proceeding of come fif teen or so years ago was flawlessly conducted - I don't know; but I do know that, while I uicht in uomentu of deluced op-timism aupire to such representation of SMP, I cannot rationally ausumo any such perfection -- and I sugdest that the best tiue to allow for any such lost notion, delay or disruption is now, rather than later.
Aloo favoring a deliberate rather than a hurried schedule in this caue is the fact that the Applicant has, to the heut of our knowledge and information, some four or five years storage capa-city remaining.
Against such background, I suggest that a few aualtional weeks or even months devoted to thorough discovery is
" affordable" time, well spent.
And last by way of general considerations, I would like to reiterate that it is not SUP's purpose in this proceeaing to inter-poco frivolous objections or to raise unnecausary delayu; rather it is to contribute, in an admittedly mouest way, to protecting the safety, health and welfare of the people of Maine, and to pro-tecting her environment.
We believe that an opportunity for full and fair diucovery will best serve this public interest.
SS.P's responses, objections and recomuendationu are essen-tially as follows:
(1) We respectfully object to your proposal of beginning uis-covery coincident with the issuance of the EIA and SER; we propose that discovery begin upon all admitted contentions when the Board has ruled upon the EI A-SER contentions; I believe the State of Maine will join us in this position; (2) Your proposed schedule allows 110 uaya for discovery; we' reupectfully object and propose 180 days therefor; and (3) Your proposed schedule makes no allowance or accomooation for delay or disruption in the conduct of discovery; we respect-fully recommend that any extensions granted to a party to comply with discovery, or any delays occasioned by nonresponsive, incoa.-
plete or otherwise insufficient compliance with discovery, will extend the. discovery period in direct proportion to the enlarge-cent granted or the delay created; I believe that both Maine und NRC Staff Counsel join us in this position.
Thank you for your attention to this communication.
Yours trulv Copies:Mr. Gutierraz; vavia Santee H ller Mr. Brown; File.
SNP EXH/BW1
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