ML20072M466

Answer to W Eddleman 830626 Motion for Extension to File Second Round Interrogatories & to File Interrogatories on Contentions 29 & 37B Until 830720.Agrees W/Second Request & Opposes First Request.W/Certificate of Svc

ML20072M466
Person / Time
Site:	Harris
Issue date:	07/12/1983
From:	Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8307140443
Download: ML20072M466 (10)

Text

July 12, 1983 o [' i' UNITED STATES OF AMERICA s NUCLEAR REGULATORY COMMISSION h Dy'f BEFORE THE ATOMIC SAFETY AND LICENSING BOARDtz JUL i 31983 30 Ng owe d t$e sec,

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In the Mettter of ) / s j/

) QNA' 4' CAROLINA POWER & LIGHT COMPANY )

AND NORTH CAROLINA EASTERN ) Docket Nos. 50-400 OL MUNICIPAL POWER AGENCY ) 50-401 OL

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(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

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APPLICANTS' ANSWER TO WELLS EDDLEMAN'S MOTION FOR EXTENSION OF TIME RE SECOND ROUND OF INTERROGATORIES ON ENVIRONMENTAL CONTENTIONS In a motion dated June 26, 1983,-1/ Mr. Eddleman requests, inter alia, an extension of time:

1. [ presumably to file second-round inter-rogatories] Until 15 days after the receipt of answers pursuant to motions to compel to his previous interrogatories on Contentions 29, 37B, 67, 75, 80, 83/84 cnd other contentions classified as environ-mental in the Board's Memorandum and Order of March 10, 1983;2/

2. Until July 20, 1983 to file a second round of interrogatories to Applicants on Con-tentions 29 and 37B.

" Motion for Extension of Time re second round of interrogatories on environmental contentions, by Wells Eddleman," at 1.

Addressing first the second request for relief, set forth above, Applicants already have agreed to Mr. Eddleman's 1/ Since June 26, 1983 was a Sunday, Applicants have treated the motion as having been served on Monday, June 27, 1983.

2/ Contrary to the implication of ir. Eddleman's motion, the Board classified Eddleman Contention 67 as a safety contention.

See Memorandum and Order (Reflecting Decisions Made Following Second Prehearing Conference), March 10, 1983, at 7.

8307140443 830712 PDR ADOCK 05000400 o PDR

l D) requested extension of time, as he notes later in his pleading.

Eddleman Motion at 4.

Applicants oppose the first request for additional time, set forth above, as premature, unsupported, and potentially detrimental to the Board's schedule for adjudicating environ-mental matters. A brief review of the progress of discovery between Applicants and Mr. Eddleman on admitted environmental contentions serves to illustrate why unwarranted delay may result from granting the motion.

I. Background With respect to Eddleman environmental contentions other than 29/30 and 37B, Applicants posed their first-round requests on January 31, 1983, and Mr. Eddleman responded on March 21. Applicants filed their second-round requests on June 30, 1983.

On these same contentions (i.e., admitted environmental other than 29/30 and 37B), Mr. Eddleman posed his first-round discovery requests to Applicants on March 21, 1983, and Applicants responded on April 28. Mr. Eddleman filed second-round requests on July 2, 1983.

In a postcard dated May 26, 1983, Mr. Eddleman notified the Board that negotiations with CP&L on Applicants' responses to his first-round requests "have been in progress and will continue June 1 and possibly thereafter." Applicants' counsel do not agree that negotiations were in progress at that time, but nevertheless later discusced the. responses with Mr. Eddleman L

and, on June 30, 1983, briefly supplemented a few interrogatory answers on Contentions 75 and 83/84.

With respect to Eddleman environmental contentions 29/30 and 37B, Applicants filed first-round discovery requests of Mr. Eddleman on March 9, 1983, and he responded on April 22.

Mr. Eddleman posed his first-round requests on these contentions on April 22, 1983, and Applicants responded on June 17.-3/Discussions were held between Applicants' counsel and Mr. Eddleman on July 1 to explore his dissatisfaction with the responses. The negotiations were unsuccessful.

As noted above, Applicants and Mr. Eddleman agreed to defer filing second-round requests on Contentions 29/30 and 37B until on or before July 20, 1983.

II. The Eddleman Motion is Premature As we understand the motion, Mr. Eddleman is anticipating that: (1) he will file motions to compel with respect to answers Applicants have provided to his interrogatories on environmental contentions; (2) that the Board will grant such l

l 3/ In exchange for Mr. Eddleman's agreement to this extension, the undersigned counsel for Applicants agreed to consider with favor a reasonable extension past the June 30 deadline-for Mr.

l Eddleman's second-round requests, even though the first round

! should have been filed earlier. Applicants subsequently agreed l to an extension. ;It is not correct, as Mr. Eddleman states, that I agreed "not to oppose" an extension, or that the dis-cussion included any environmental contentions other than 29/30 and 37B. Cf. Eddleman Motion at 1.

j motions; and (3) that the additional responses filed by Applicants

! in response to the Board's order will give rise to the need for i further discovery. Applicants understand the extension request to go to the potential additional discovery following Applicants' i response to a Board order granting an Eddleman motion to compel.

The Board should not entertain this kind of abstract and academic request for relief. None of the cascading series of events anticipated by Mr. Eddleman have occurred. Even if i

a motion to compel is filed in the near future, it is at best speculative that the Board would grant such a motion and that

! Applicants' response would give rise to the necessity for i

additional discovery. The Board should only consider a request for further discovery which is based upon a good cause showing ,

I in the context of actual facts and circumstances -- e.g.,

I need for the information, whether it could have been sought earlier, effect on the hearing schedule. -

III. Parties Should be Diligent in Pursuing Discovery i

The Board set. June 30, 1983 as the last day for filing I

l discovery requests on currently admitted environmental con-tentions. Memorandum and Order . . ., March 10, 1983, at 6.

This deadline is important to the preservation of the remainder of the schedule. Further, since discovery has been op'en on these contentions since September, 1982, Applicants submit that l

there has been adequate time to pursue discovery, and that any party which started late assumed the risk that dispute  !

i I

complications might accumulate near the end.-4/ l There are at least two respects (beyond delay in the initiation of discovery) in which diligence in the discovery process is not recognized by Mr. Eddleman's motion. Fl.4:s t ,

Mr. Eddleman appears to believe that all second-round requests I

may await the final resolution of any disputes from the first round.-5/The trail for such resolution could involve:

a. Negotiations on Applicants' interrogatory answers. l

b. Motion to compel by Mr. Eddleman. l

c. Negotiations on Mr. Eddleman's motion. '

d. Applicants' answer to the motion.

e. Board ruling.

f. Further response by Applicants if motion granted.

g. Attempts at follow-up discovery by Mr. Eddleman,

h. Argument over whether " good cause" has been shown.

i. Repeat steps a through f indefinitely.

Applicants submit that if Mr. Eddleman wished to pursue such an extended course under the umbrella of a single round of discovery, before posing a second round, he should have started months earlier.

In any case, parties should only pursue discovery disputes which are material. If there has been a reasonably responsive answer, the requesting party should move on to follow-up 4/ The fact that Mr. Eddleman elects to pursue new contentions, l

to file a 2.758 petition, to review extensive numbers of docu-ments produced, and to participate in rate cases is irrelevant to his obligation to proceed diligently with discovery.

5/ For example, Mr. Eddleman indicates that he filed some second-round requests on July 2, 1983, only to cover the possibility that his motion is denied. Eddleman Motion at 3. (At the same time, Applicants note that the motion does not appear to apply to the timing of those requests.)

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questions with a second round.~ Otherwise, discovery may become interminable.

Second, the consultation process required by the Board

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prior to filing any motion to compel must be pursued diligently, especially when the deadline for termination of discovery is near. The Board has been clear that in order to toll the time for filing a motion to compel, negotiations must be ongoing.

See Memorandum and Order . . ., March 10, 1983, at 12. Uni-lateral notice to the Board of intent to negotiate is not sufficient to toll the time for filing a motion to compel.

Negotiations require two-way communication between the parties.

If the requesting party cannot review the answers to its own questions in a timely fashion, the appropr'iate course is to proceed to the second round of discovery after the review is completed, assuming that the termination deadline has not passed- Applicants advise the Board of these matters now to il.' astrate the potential pitfalls of granting the relief requested in the Eddleman Motion.

IV. Conclusion Applicants have agreed to an extension (beyond the June 30 deadline) for filing second-round discovery requests on Eddleman Contentions 29/30 and 37B. The blanket request for additional 6/ At the very least, second-round discovery should proceed as to those first-round responses which are not in dispute.

7/ See Memorandum and Order . . ., March 10, 1983, at 11.

discovery at some hypothetical point in the future should be denied as premature, unsupported, and in conflict with the orderly conduct of the proceeding.

Respectfully submitted, A. k Thomas A. Baxter, P.C.

SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1090 Richard E. Jones Samantha Francis Flynn CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-6517 Counsel for Applicants Dated: July 12, 1983 i

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL AND NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )

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)

(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Answer to Wells Eddleman's Motion for Extension of Time re Second Round of Interrogatories on Environmental Contentions" were served this 12th day of July, 1983, by deposit in the U.S. mail, first class, postage prepaid, to the parties on the attached Service List.

Thomas A. Baxter, P.C.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL and NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

SERVICE LIST James L. Kelley, Esquire John D. Runkle, Esquire At,omic Safety and Licensing Board Conservation Council of North Carolina U.S. Nuclear Regulatory Commission 307 Granville Road Washington, D.C. 20555 Chapel Hill, North Carolina 27514 i Mr. Glenn O. Bright M. Travis Payne, Esquire Atomic Safety and Licensing Board Edelstein and Payne U.S. Nuclear Regulatory Commission Post Office Box 12643 Washington, D.C. 20555 Raleigh, North Carolina 27605 Dr. James H. Carpenter Dr. Richard D. Wilson Atomic Safety and Licensing Board 729 Hunter Street U.S. Nuclear Regulatory Commission Apex, North Carolina 27502 Washington, D.C. 20555 Charles A. Barth, Esquire (4) Mr. Wells Eddleman 718-A Iredell Street Myron Karman, Esquire Durham, North Carolina 27705 Office of Executive Legal Director U.S. Nuclear Regulatory Commis~sion Richard E. Jones, Esquire Washington, D;C. 20555 Vice President and Senior Counsel Docketing and Service Section (3) Carolina Power & Light Company Office of.the Secretary Post Office Box 1551 U.S. Nuclear Regulatory Commission Raleigh, North Carolina 27602 Washington, D.C. 20555 Dr. Phyllis Lotchin Mr. Daniel F. Read, President 108 Bridle Run -

Chapel Hill Anti-Nuclear Group Effort Chapel Hill, North Carolina 27514 Post Office Box 524 Chapel Hill, North Carolina 27514 Deborah Greenblatt, Esquire 1634 Crest Road Raleigh, North Carolina 27606

Service List Page Two 4

Bradlef W. Jones, Esquire U.S. Nuclear Regulatory Commission Region II 101 Marrietta Street Atlanta, Georgia 30303 Ruthanne G. Miller, Esquire '

Atomic Safety and Licensing Board Panel

- U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Karen E. Long, Esquire Public Staff - NCUC Post Office Box 991 Raleigh, North Carolina 27602 l

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