ML20079N506
| ML20079N506 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 01/26/1984 |
| From: | Horin W, Reynolds N BISHOP, COOK, PURCELL & REYNOLDS, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8401300244 | |
| Download: ML20079N506 (11) | |
Text
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s January 26, I ((((D jy 4 27 UNITED STATES OF AMERICA NO.n?
NUCLEAR REGULATORY COMMISSION E(CJC Or t --[.
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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,':4 In the Matter of
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2 TEXAS UTILITIES GENERATING
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Docket Nos. 50-445 COM PANY, et al.
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50-446
)
(Application for Operating (Comanche Peak Steam Electric )
Licenses) 1 Station, Units 1 and 2)
)
APPLICANTS' ANSWER TO CASE'S MOTION FOR RECONSIDERATION OF SCHEDULING ORDERS 1
Pursuant to 10 C.F.R.
$2.730(c), Texaa Utilities Generating Company, et al.
(" Applicants"), hereby submit their answer to CASE's Motion for Reconsideration of Scheduling Orders, dated Janua ry 13, 1984.
For the reasons set forth below, Applicants oppose CASE's motion and urge the Board.to deny the motion in its I
entirety.
Fur the r, Applicants submit that the Board should cease further efforts to allow CASE to conduct discovery through an in situ inspection at the Comanche Peak site.
I.
BACKGROUND
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It is important to retrace the events that have brought this matter to its present posture to be able to appreciate fully the extraordinary ef forts the Board has made to accommodate the l,
intervenor, and to demonstrate that this matter has reached the 1;
point that further efforts are unwarranted and would be wholly inconsistant with the NRC Rules of Practice.
Accordingly, we describe briefly below the origins of this approach and its development into its present form.
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The possibility of the Board conducting a site tour to observe alleged construction deficiencies first arose during a conference call among the Board and parties on October 21, 1983.
The purpose of that call was to obtain the comments of the l
parties regarding a suggestion by the Board to hear evidence i! -
concerning the quality of the finished plant as an independent i1 ineans to obtain adequate assurance to issue an operating license, without awaiting the conclusion of various investigations being conducted by the Office of Investigations (Tr. 9079-81).
In this' context, the intervenor suggested that its potential witnesses 1,
accompany the Board to the site to point out " specific instances" of alleged construction deficiencies (Tr. 9099-9100).
Acknowledging that such a measure would be an " extraordinary
- l action," the Board requested comments by Applicants on that proposal, assuming certain conditions were applied (Tr. 9125).
Applicants urged, inter alia, that such a procedure was unnecessary, noting that if significant problems" were known to the intervenors they were under an obligation to have raised them in a timely manner.
Applicants did not argue, however, that such i
l a procedure should not be permitted, assuming certain measures I
were employed to demonstrate the feasibility of such an approach (e.g., affidavits, specificity, etc.) (Tr. 9125-27).
The Board memorialized the results of that conference call
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j in its October 25, 1983 Memorandum (Procedure Concerning Quality Assurance), in which it adopted a procedure "that may provide it 4
with a way of determining the safety of Comanche Peax without e
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awaiting the conclusion of pending investigations concerning p
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quality assurance matters" (Memorandum at 1; see Tr. 9080-81).
Among the procedures adopted by the Board was for CASE to identify, subject to strict procedures to prevent disclosure,
" specific...
quality deficiencies" to enable the Board to
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l-determine whether a site visit was necessary to verify their accuracy, prior to hearings (Memorandum at 3).
U In response to the Board's directive to identify specific deficiencies, CASE filed two pleadings, neither of which demon-i strated the existence of any particular deficiencies.
CASE d
ll refused to identify specific deficiencies, providing instead a I
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littany of previously raised general allegations.
Applicants
- t objected to the further pursuit of this procedure in their j '.
December 22, 1983 Response to CASE's " Identification" of Alleged Deficiencies, and we ask the Board to refer to that pleading.for p
a full description of Applicants' position ragarding the propriety of further pursuing this procedure in light of CASE's i
continued inability or refusal to identify alleged deficiencies.
l til' One point raised there particularly warrants repeating here, howeve r.
It was apparent to Applicants at that time that the intervenor was asking that the Board transform the process j
originally intended by the Board as a means to identify discrete ci,i alleged deficiences, susceptible to identification and I:
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observation by the Board, into an opportunity to conduct l
unlimited discovery by wandering through the plant (see Applicants' December 22, 1983 Response at 4-5).
Applicants i
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I 4-l objected then to the conduct of such unlimited discovery at this late date, particularly in view of the extensive discovery already conducted in this proceeding, and the lengthy hearings which had already been held addressing virtually the same alle-gations by many of the same people ( Applicants' Reply at 5).
Nevertheless, the Board expressly reformulated the site tour
.i procedure into a matter of discovery (December 28, 1983,
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Memorandum and Order (Scheduling Matters) at 3), establishing certain limitations regarding the conduct of that discovery, but nonetheless continuing to afford CASE an opportunity for access to the site.
lloweve r, now the Board is faced once again with
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strenuous objections by CASE to the procedures the Board established.
In fact, CASE flatly refuses to engage in such discovery on the grounds established by the Board (e.g.,
CASE Motion at 3).
For the reasons set forth below, Applicants submit the Board should accept CASE's representation that it does not intend to utilize this procedure under the terms established by the Board, and find that because good cause for conducting such late discovery never has been demonstrated, further pursuit of i
this procedure is unwarranted and would be contrary to the NRC Rules of Practice.
Further, we urge the Board to find that, in any event, given the current plans for additional hearings on a variety of matters, the justification for this approach no longer exists.
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APPLICANTS' ANSWER TO CASE'S MOTION A.
The Board Should Deny CASE's Motion and Decline to Pursue Further Procedures For On Site, In Situ, Discove ry i
The Board has already afforded CASE more than ample opportunity to demonstrate that a site tour to observe alleged construction deficiencies was warranted.
In each instance CASE openly declined or simply failed to make the minimal demonstra-tion requested by the Board.
Now the Board has afforded CASE yet i
j another opportunity to conduct the site inspection it seeks, this a
i time in the form of discove ry.
However, CASE still refuses to y
avail itself of this opportunity, choosing instead to challenge t
1 once more the procedures established by Board.
In short, CASE has failed to avail itself of the procedures outlined by the Board.
In these circumstances, the equities clearly dictate that CASE's motion be denied and that the procedures outlined by the Board be terminated.
It is clear in any event that CASE has never shown any basis for reopening discovery on alleged quality assurance deficiencies.
The NRC Rules of Practice provide:
[N]o discovery shall be had af ter the beginning of the prehearing conference held pursuant to {2.752 except upon leave of the presiding officer upon good cause shown.
10 C.F.R.
$2.740(b)(1) (emphasis added).
Far from having shown good cause for reopening discovery, CASE repeatedly has failed to I
inake an adequate showing to support new discovery relating to its allegations of quality assurance deficiencies.
s i 1 Purther, CASE has stated flatly that it will not bear "any, i
costs associated with this site visit other than the necessary costs associated with having our witnesses present and for costs of copies of documents related to deficiencies identified" (CASE's Motion at 13; emphasis in original).
CASE apparently is 1
not content with in situ observations, but rather also seeks
" destructive examination or at least the taking down of items, such as pipe supports" (Id,. at 2).
Obviously, Applicants oppose any such activities and certainly assume that CASE would bear the cost of any examination and testing that might be occasioned by
~t CASE's discovery requests.
It is well established that a party 9
may not be put to the expense of, inter alia, conducting tests f
for the party conducting discovery.
See, 4A Moore's Federal Practice T34.19[2], citing Sladen v. Giritown, Inc., 425 F.2d 24, 25 (7th Cir. 1970) (interpreting Rule 34 of the Federal Rules of Civil Procedure, on which the provisions of 10 C.F.R. {2.741(a) are modeled).1 Certainly, CASE has not lacked opportunities to pursue such discovery in a timely fashion.
These are not new issues which i
CASE wishes to investigate.
CASE took extensive discovery during the normal period allotted for such matters, and it has made no showing why the matters it seeks to investigate now could not
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Consideration by NRC licensing boards of judicial interpretations of the Federal Rules is appropriate in interprsting comparable NRC discovery rules.
- See, e.g.,
Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit Z), LBP-78-37, 6 NRC 575, 577-84 (1978).
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have been adequately probed at that time.2 Additionally, CASE now has had two further opportunities to point to facts that -
support its allegations, yet it has failed to allege any specific quality deficiency as requested by the Board, despite the strict nondisclosure order to protect confidential sources.
See uj Memorandum (Procedure Concerning Quality Assurance) October 25, i
1983 at 3: CAS2's Answer, November 9, 1983; CASE's Response, December 5, 1983.
In sum, CASE has failed to deuonstrate good cause for 1
reopening discovery on its allegations of quality assurance deficiencies as required by 10 C.F.R. $2.740(b)(1).
In the absence of such a showing, the Board should deny CASE's motion to modify thg Board's procedures for that discovery, and should ll terminate the opportunity for further discovery.
No inequity 1*
will result from adherence to the Commission's Rules of Practice, for CASE has raised no new issues which it could not have pursued i:
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In fact, six of the ten people who provided affidavits with l ';
CASE's November 28, 1983 filing were previously CASE's I,
witnesses in this proceeding (one of those, Mr. Krolak, l
profiled testimony but did not appear at the hearing).
Indeed, only one of these individuals was still employed at Comanche Peak when she testified and, thus, the others were l
aware of any alleged deficiencies of which they had personal knowledge when they testified.
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i 4 in a timely manner, nor has it alleged any specific factual' matters suf ficient to warrant further inquiry pursuant to this Board's October 25, 1983, Memorandum.
Finally, as already noted, the idea of permitting CASE to conduct an on site inspection first arose in the context of the Board's ef forts to devise a proceduro by which the delay which
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may result from awaiting the results of certain ongoing investigations could be avoided (Tr. 9080-81, 9099).
This possibility appears to have been an important consideration in the Boced's mind in authorizing this procedure (see October 25, 1983 Memorandum (Procedure Concering Quality Assurance)) and was certainly a' factor in Applicants' decision to attempt to work
.l within the framework established by the Board (see Applicants' December 22, 1983 Response (at 2), where Applicants noted their willingness to cooperate with the Board on this matter, under the terms initially established).
Now, however, the reasons contemplated by the Board and the Applicants for adopting this procedure are no longer present, and the Board should terminate further discovery.
B.
Evidence Regarding Dismissal of Robert Hamilton CASE also requests that the Board reconsider its determination in its January 3, 1984, Memorandum and Order.(at 1-2) that the question of Mr. Hamilton's dismissal be the subject of litigation only upon a prior decision by the Board.
CASE states that it believes the record is unclear regarding the cause of Mr. Hamilton's discharge and requests, if the Board agrees,
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that it permit additional testimony on this matter.
While Applicants thought that the record was clear that Mr. Hamilton was terminated lawfully, the Board apparently disagrees (see September 23, 1983 Memorandum and Order (Emergency Planning, Specific Quality Assurance Issues and Board Issues), at 17-20).
In these circumstances, Applicants agree with CASE that the record is not complete regarding thie matter and support CASE's req ues t that the Board accept additional testimony.
Respec fu y submitted, f
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Nicho]
Reynolds QJ u drs William A.
Horin Counael for Applicants
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BISHOP, LIBERMAN, COOK, PURCELL & REYNOLDS l'
1200 Seventeenth Street, N.W.
Hashington, D.C.
20036 ji (202) 857-9817 it l:
January 26, 1984 e
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W UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORC THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket Nos. 50-445 and TEXAS UTILITIES GENERATING
)
)
)
(Application for (Comanche Peak Steam Electric
)
Operating Licenses)
Station, Units 1 and 2)
)
i 1
i CERTIFICATE OF SERVICE I hereby certify that copies of the foregcIng " Applicants' j
Answer To CASE's Motion For Reconsideratica Of Scheduling Orders" in the above captioned matter were served upon the following persons by deposit in the United States mail, first class, g
postage prepaid, this 26th day of January, 1984.
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- l Peter B.
Bloch, Esq.
Chairman, Atomic Safety and ij Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U.S.
Nuclear Regulatory
~ i U.S. Nuclear Regulatory Commission 1;
Commission Washington, D.C.
20555 Washington, D.C. 20555 Mr. Scott W. Stucky Dr. Walter H. Jordan Docketing and Service Branch Carib Terrace Motel U.S.
Nuclear Regulatory l;
Apartment 10 Commission 552 N.
Ocean Blvd.
Washington, D.C.
20555 Pompano Beach, FL 33062 Stuart A.
Treby, Esq.
Dr. Kenneth A. McCollom Office of the Executive Dean, Division of Enoineering Legal Director l;
Architecture & Technology U.S. Nuclear Regulatory I;
Oklahoma State University Commission Stillwater, Oklahoma 74074 Washington, D.C.
20555 1
Mr. John Collins Chairman, Atomic Safety and j
Regional Administrator Licensing Board Panel H
Region IV U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 611 Ryan Plaza Drive Suite 1000 Arlington, Texas 76011 i
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l David J. Preister, Esq.
Mrs. Juanita Ellis
~j Assistant _ Attorney General President, CASE Environmental Protection 1426 South Polk Street Division Dallas, Texas 75224 P. O.
Box 12548 Capitol Station Austin, Texas 78711 i
Lanny A.
Sinkin j
114 West 7th Street Suite 220 d.
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William A.
Morin
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Homer C. Schmidt l
Spencer C. Relyea, Esq.
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