ML20080K970

Answer to W Eddleman 840130 Motion for Extension of Time to Respond to Summary Disposition on Eddleman Contention 65 Until Second Round of Discovery Completed.Motion Should Be Denied & W Eddleman Directed to File Answers by 840228

ML20080K970
Person / Time
Site:	Harris
Issue date:	02/14/1984
From:	Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20080K971	List: ML20080K970 ML20080K985
References
ISSUANCES-OL, NUDOCS 8402160201
Download: ML20080K970 (15)

Text

., - __

y February 14, 1984 8

00CKf1E0 UNITED STATES OF AMERICA UM NUCLEAR REGULATORY COMMISSION

'84 [315 A11:06 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD rrr *

• 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) )

APPLICANTS' ANSWER TO WELLS EDDLEMAN'S MOTION FOR EXTENSION OF TIME TO RESPOND TO

SUMMARY

DISPOSITION ON EDDLEMAN 65 UNTIL SECOND ROUND OF DISCOVERY IS COMPLETED On January 30, 1984, intervenor Wells Eddleman filed

" Motion for Extension of Time to Respond to Summary Disposition on Eddleman 65 until Second Round of Discovery is Completed" (hereafter "Eddleman Motion"). The motion seeks an order from the Board to defer Mr. Eddleman's response to "Appli-cants' Motion for Summary Disposition of Eddleman Contention 65," January 18, 1984, until 15 days after Mr. Eddleman receives answers to additional discovery requests filed on January 30, 1984 (including rulings on any motions to compel and answers which may be required thereunder) or until 15 days after Applicants file any amended summary disposition motion. Applicants oppose the Eddleman motion for extension of time.

Eddleman 65 was admitted by the Board in its September 22, 1982 Memorandum and Order (Reflecting Decisions Made Following 8402160201 840214 PDR ADOCK 05000400 0 PDR

4 Prehearing Conference) , LBP-82-119A, 16 N.R.C. 2069, 2101

.(1982). On January 18, 1984, Applicants filed a motion for summary disposition of Eddleman 65, to which any response by Mr. Eddleman was due on February 13, 1984. Instead, Mr. Eddleman filed the instant motion for extension of time on January 30, 1984, accompanied by a 26-page set of

-discovery requests on Eddleman 65.

In their summary disposition motion, Applicants explicitly addressed the timeliness of their motion. Mr. Eddleman neither challenges nor addresses those arguments. To repeat, a motion for summary disposition may be filed at any time in the course of a proceeding. Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 N.R.C. 1245, 1263 (1982); see also 10 C.F.R. S 2.749 (a) . Mr. Eddleman simply asserts: "I think it basic fairness that I get to complete discovery before such a motion is ruled on." Eddleman Motion L

at 1. While Applicants concede that some opportunity for discovery may be appropriate prior to entertainment of a motion for summary dispeeition of an admitted contention, that opportunity'is not unlimited and the Commission's regu-lations do not prohibit summary disposition until discovery is exhausted.

Discovery on Eddleman 65 has been open since September 22, 1982, by order of the Board.-1/ LBP-82-119A, supra, 16 N.R.C.

1/ Apparently because the parties agreed to defer discovery

.on several safety contentions, Mr. Eddleman now harbors the mistaken impression that_his agreement was necessary to begin discovery on Eddleman 65. See Eddleman Motion at 2.

. at 2113.. Until he filed the instant motion on January 30, 1984, Mr. Eddleman's only discovery requests to Applicants on Eddleman 65 were filed on March 21, 1983 -- nearly six months after discovery was opened. Until January 30, 1984, more than eight months later, no follow-up requests had been posed to the~ answers Applicants filed on May 13, 1983. With respect

- to the few additional discovery responses filed by Applicants on November 11, 1983 -- in accordance with the Board's October 6, 1983 ruling on an Eddleman motion to compel of August 3, 1983 -- again no action was taken oy Mr. Eddleman until after the summary disposition motion was filed.-2/

There-isnorequirementthatapartybonductthorough

- discovery, or that a party conduct'its discovery with dis-patch.- However, a partyjmust accept the consequences of its failure to do so. There is a public interest in the expeditious resolution of the issues Mr..Eddleman has raised in-this proceeding,sGiven the number of contentions Mr.

Eddleman has raised, and the number of' contentions he con-tinues to propose be added to the proceeding, it is incumbent upon him not to attempt to forestall Licensing Board decisions on the merits of his allegations.

The'first ev$dentiary hearing session in this case is scheduled' tentatively for June, 1984 on environmental matters

-- only one year prior to the projected fuel load date for 2/ Mr. Eddleman's first discov'ery requests of the Staff on 1 Contention 65 were not filed until May 6, 1983, and the Staff responded on June 24, 1983. Mr. Eddleman's second-round requests to the Staff were filed on January 30, 1984.

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the Harris plant. Hearings on physical security plans, the numerous management and other safety issues will follow shortly, while the proceeding on emergency planning issues has barely begun. Given the involvement Mr. Eddleman is attempting on many issues, the potential conflicts yet to come for his participation in the proceeding may be significant -- albeit self-created. In an effort to avoid such situations, Applicants have sought to resolve some of the original contentions during this period of the proceeding when there~is not the press of ongoing evidentiary hearings.

Beyond questions of the sound administration of the procceding, however, it is clear that sixteen months repre-sent an adequate and fair time period for Mr. Eddleman to have conducted discovery on Eddleman 65. He must now live with the situation created by his failure to do more than he chose to do. (Although the discovery conducted was broad --

a reflection of the fact that Eddleman 65 has no stated basis specific to the Harris concrete containment structure.)

The merit in Mr. Eddleman's motion is particularly absent in this instance where Applicants put him on notice it. January, 1983, that summary' disposition of Eddleman 65 might be sought prior to the close of discovery, so that discovery by the intervenor should be pursued expeditiously.

3/ In its Memorandum and Order (Reflecting Decisions Made Following Second Prehearing Conference) at 2 (March 10, 1983),

the Board recognized, in setting schedules, the Commission's policy of attempting to complete licensing proceedings prior to the time the plant is_ ready to operate, if that can be done consistent with a fair hearing. Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C. 452 (1981).

D

! 6 l

-See Attachment-A (counsel's letter to the Board of January 14, 1983, enclosing minutes of a meeting held by the parties on

~ January 6, 1983). It was clear, as wall, from the discussion at the second prehearing conference (held on February 13,

-1983), that the basis for the parties' agreement to defer.

discovery on some safety contentions but not others was the likelihood of pursuit of summary disposition by Applicants.

Tr. 476; see also Memorandum and Order (Reflecting Decisions Made Following Second Prehearing Conference) at 4 (March 10, 1983); Memorandum and Order (Ruling on Discovery Dispute Betfeen Applicants and Joint Intervenors) at 2 (Nov.'29, J-J3). -Motions for summary disposition of safety' contentions

.have been-filed by Applicants on September 1, 1983 (Eddleman 64 (f) ) ', December 7, 1983 (CHANGE 44 and Eddleman 132) , and January 9, 1984 (Joint IV). Consequently, it is nothing short of' incredible for Mr. Eddleman to state to this board

, that "[ulntil Applicants started doing it, I had not been aware that they intended to enter niotions for summary

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disposition pricr to the completion of discovery." See Eddleman Motion at 1.

In addition, Mr. Eddleman has made absolutely no attempt,

.inisupport of this motion, to explain why additional discovery 1

is necessary.

In fact, he in no way addresses ~the merits ofLApplicants' summary disposition motion. Rather, he appears to believe that he has an inalienable right to discovery at his 2

i

own pace and without regard to the summary disposition process.

To the contrary, to justify the deferral of a ruling pending further utilization of discovery procedures, the party opposing summary disposition must be able to demonstrate with some particularity that discovery is indeed likely to develop the basis for avoiding summary disposition on the contention.

Vermont Yankee Nuclear Power Corporation (Vermont Yankee 4/

Nuclear Power Station) , ALAB-138, 6 A.E.C. 520, 524 (1973).-

Mr. Eddleman has not even attempted such a showing. Moreover, even if it is viewed that discovery is not completed, the Board may grant summary disposition if it determines that

., there are no genuine issues of material fact and if the opposing party cannot identify what specific information it seeks to obtain through further discovery. Point Beach, supra, ALAB-696, 16 N.R.C. 1245, 1263 (1982); see also 10 C.F.R. S 2.749 (c) .

Mr. Eddleman's motion for extension of time does not discuss why he needs additional discovery.-5/ While Mr. Eddle- >

man contemporaneously filed a 26-page set of discovery requests,

. Applicants review of those requests discloses no recognition, explicit or implicit, of Applicants' Motion for Summary 4/ See also Cleveland Electric Illuminating Company, et al.

(Perry Nuclear Power Plant, Units 1 & 2) , LBP-83-46, 18 N.R.C.

218, 226 (1983).

5/ Mr. Eddleman does state that so far he has not been able to see any of the Harris concrete reports themselves. Eddleman Motion at 1. The facts are that Mr. Eddleman never requested those reports in his first round of discovery. Rather, he asked ,

for information which Applicants compiled and provided from the reports. If Mr. Eddleman wanted to see the reports, he need not have first put Applicants to the task of reviewing them to answer his interrogatories.

T -

Ea Disposition'of Eddleman Contention ~65, or the affidavit and state-ment of material facts'in support thereof. Rather, the questions

represent,.as did the first round ofidiscovery, a virtually 1 unrestrained, unfocused attempt to cover every conceivable bit of'information which pops into Mr. Eddleman's mind -- much of which appears to reflect mere curiosity. To illustrate the wandering breadth of these discovery-requests filed _some

' sixteen months after the contention was admitted, Applicants attempted to count the number of questions posed, excluding

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the general interrogatories. Interrogatories 65-9 through 65-27,'and'their voluminous and often compounding cross-

.referencedisubparts, represent a minimum of roughly 275 questions, and a potential maximum (depending--upon the answers) of over;900. Without regard to whether the dis-covery is'otherwise objectionable,.these numbers, and the

. nature of-t'e1 h questions asked, reveal Mr..Eddleman's failure sto focus-in on any promising basis for the contention or on thef summary . disposition motion.

The Board stated,.upon admitting Eddleman 65, that

"[ilf it develops that Mr. Eddleman has little or no evidence to.back up this contention, it may be amenable to summary disposition." LBP-82-119A, supra, 16 N.R.C. at 2101 (1982).

. Applicants motion for suumary disposition was. timely filed.

Mr. Eddleman has had sixteen months in which to conduct dis-

-covery'on Eddleman 65'-- more than an ample opportunity to 6/ Also excluded was Interrogatory 65-8 which, among other

' things, poses-the twenty questions in General Interrogatories G-10 and..G-11 for-each previous interrogatory response.

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uncover any basis for the contention. Mr. Eddleman has not

-shown with particularity that additional discovery is like'_y to develop the basis for avoiding summary disposition of Eddle-man 65, or identified why specific information is necessary in order for him to prepare an answer to the summary disposi-tion motion. Further, delay in the Board's ruling on the sum-mary disposition motion may contribute to delay in the conduct of the proceeding.

For all of the foregoing reasons, the Eddleman motion for extension of time should be denied, and Mr. Eddleman should be directed to file any answer to Applicants' summary disposi-tion motion on or before February 28, 1984. This would provide Mr. Eddleman the opportunity at the same time to respond to any new facts and arguments presented in the "NRC Staff Response in Support of Applicants' Motion for Summary Dis-position of Wells Eddleman's Contention 65," served on February 13, 1984. See 10 C.F.R. S 2.749 (a) .

Respectfully submitted, 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 Dated: February 14, 1984

1 j Attachment A

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-m TER S O.=c? O.AL MvM.Em January 14, 1983 822-1090 James L. Kel. ley, Esquire Mr. Glenn O. Bright Atomic Safety and Licensing Paard Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. James H. Carpenter Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 In the Matter of Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant, Units 1 and 2)

Docket Nos. 50-400 and 50-401 OL Administrative Judges Kelley, Bright and Carpenter:

In its Memorandum and Order (Addressing Motions for Recon-sideration'and Clarification of the Board's Prehearing Conference Order) , January 11, 1983, the Atomic Safety and Licensing Board announced its belief that it would be useful at this juncture to convene a second pre'.learing conference, primarily for the purpose of discussing discovery and scheduling questions. The Board also scheduled a telephone conference for January 21, 1983.

In order to facilitate the discussion on January 21, I will report to the Board now on the status of discussions held by the parties on the scheduling of discovery on environmental contentions. A meeting of Applicants and four intervenors took c

i

t SHAW. PITTMAN, PoTTs & TROWERIDGE g, A pastThtm3Hs3 OF PetOFESetON. CSKpomafl0N3 James L. Kelley, Esquire Mr. Glenn O. Bright Dr. James H. Carpenter January 14, 1983 Page-Two place in Raleigh on January 6, 1983. Enclosed are my minutes of that meeting and my letter to the attendees, dated January 10, 1983.

We had intended to report to the Board on these discussions as soon as'they were completed.

Respectfully submitted, Thomas A. Baxter Counsel for Applicants TAB:jah Enclosures cc: Service List attached

't 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. Falley, Esquire

• John D. Runkle, Esquire Atruic Safety and Licensing Board Conservation Cemdl of North Carolina U.S. Nuclear Regulatory Cr-ni== ion 307 Granville Road W==hington, D.C. 20555 &==1 Hill, North Carolina 27514 Mr. Glenn O. Bright

• M. Travis Payne, Esquire Atanic Safety and Licensing Board Edelstein and Payne U.S. Nuclear Regulatory Ccmtission P.O. Box 12643 W==hington, D.C. 20555 Raleigh, North Carolina 27605 Dr. J e ns H. Carpenter

• Dr. Richard D. Wilson Atcznic Safety and Licensing Board 729 Hunter Street U.S. Nw'la=" Regulatory Ccanission Apex, North Carolina 27503 Washington, D.C. 20555

• Mr. Wells Eddlenan "

• Charles A. Barth, Esquire 718-A Iredell Street-Myron Karman, Esquire Durham, North Carolira 27705

' office of Executive Imgal Director U.S. Nuclear Regulatory Ccmnission Ms. Patricia T. Neman Washington, D.C. 20555 Mr. Slater E. Neman Citizens Against Nuclear Power Docketing and Service Section 2309 Weymouth Ccuzt Office of the Secretary Raleigh, North Carolina 27612 U.S. Nuclear Regulatory Ccmnission Washington, D.C. 20555 Richard E. Jones, Esquire Vice President & Senior Counsel

. *Mr. Daniel F. Read, President Carolina Power & Light Conpany Chapel Hill Anti-Nuclear Group Effort P.O. Box 1551 P.O. Box 524 Raleigh, North Carolina 27602 ,

Chapel Hill, North Carclina 27514 Dr. Phyllis Ictchin a' 108 Bridle Run Chapel Hill, Ncrth Carolina 27514

• without enclosures rt

\ .A l SMAW, PITTMAN, PoTTs & TROWBRIDGE A pamfee!aSMs3 OF pmOFESS40NAL CompORAftCMS 4

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wetTEn S CamECT OsAL NUMSCm January 10, 1983 822-1090 M. Travis Payne, Esquire John D. Runkle, Esquire Edelstein and Payne Conservation Council of North P.O. Box 12643 Carolina Raleigh, North Carolina 27605 307 Granville Road Chapel Hill, North Carolina 27514 Mr. Daniel F. Read . Mr. Wells Eddleman President 718-A Iredell Street Chapel Hill Anti-Nuclear Group Durham, North Carolina 27705 Effort P.O. Box 524 Chapel Hill, North Carolina 27514 In the Matter of Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant, Units 1 and 2)

Docket Nos. 50-400 OL and 50-401 OL

Dear Messrs. Payne,

Runkle, Read and Eddleman:

, Enclosed are my minutes of our meeting of last week. Please review my statement of our agreements and telephone Samantha Flynn (836-7707) with any comments. Concurrently, John O'Neill will discuss the agreements with NRC Staff counsel Charles Barth and ascertain whether the Staff will join in the stipulation.

We will then prepare and file an informal memorandum of under-standing (approved by you) with the Licensing Board. I propose we avoid the time and expense of pansing around a si..gle docu-ment for everyone to sign.

i

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tp SMAw, PITTMAN. POTTs & TROWBRIDGE

_ . .. -.. _ o ._,,m M. Travis Payne, Esquire John D. Runkle, Esquire Mr. Daniel.F. Read Mr. Wells Eddleman January 10, 1983 Page Two I would like to add to the memorandum of understanding a stipulation that the following contentions are " environmental" and subject to the schedule agreement:

- Joint Contention II

- CCNC 4, 12 and 14

- CHANGE 9 and 79 (c)

- Eddleman 15, 22A&B, 29 & 30, 37B, 75, 80, 83 & 84

- Wils~on la-d, le-f3, and lg Sincerely, Wh.

• Thomas A. Baxter Counsel for Applicants TAB:jah Enclosure .

~cc: Dr. Richard D. Wilson Charles A. Barth, Esquire Samantha Francis Flynn, Esquire t

6 8

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MEETING-MINUTES v

January 6, 1983, 9:30 a.m.

Legal Department Conference Room, Carolina Power & Light Co.

Parties represented: Applicants Kudzu Alliance Conservation Council of North Carolina CHANGE /ELP Wells Eddleman (participated by telephone)

(Dr. Wilson was invited, but was unable to attend.)

The purpose of the meeting was to discuss voluntary arrangements the parties might undortake to manage and faci-litate the discovery process in the NRC operating license proceeding on the Shearon Harris Nuclear Power Plant.

The discussion focused, for the most part, on environ-mental matters,-in reccgnition of the NRC Staff's review schedule set forth in the December 28, 1982 letter from NRC to CP&L, which calls for the issuance of a draft environmental statement on February 21, 1983.

The parties agreed that prior to addressing motions for extensions of time to the Licensing Board, the parties would first seek from each other any needed extension of the discovery response times specified in the NRC's regul-lations (14 days for interrogatories, 30 days for document i

production requests).

The parties agreed that the intervenors sponsoring the Joint Contentions would pose consolidated discovery requests on' those contentions, and that they would attempt to prepare.

consolidated responsen to discovery requests on those con-l tentions.

The parties agreed to a limit of two rounds of discovery on any given contention, absent good cause, and without waiving

!. the opportunity to' pursue motions to compel discovery if they L are warranted.

Applicants, Kudzu, CCNC and CHANGE /ELP agreed upon the following discovery schedule for environmental contentions:

June 30, 1983 -- last day for filing discovery requests on contention.c currently admitted by ASLB.

July 29, 1983 -- last day for filing responses to discovery on contentions currently admitted by ASLB.

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, . , om.y, - - ~ ,- % ,--,---=~-.--re= '

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i 90 dnye aftor ralovant ALSB ordor cdmitting i

contentions -- last day for filing discovery requests on new/ deferred contentions based on NRC Staff's draft environmental statement.

120 days after relevant

-ASLB order admitting contentions -- last day for filing responses to dis-covery on new/ deferred contentions based on NRC Staff's draft environ-mental statement.

It was agreed that the schedule stipulation does not waive the opportunity to pursue motions to compel discovery if they are warranted. Mr. Eddleman indicated that he would like to give further consideration to the matter of joining in the schedule stipulation. It was also agreed that the schedule does not apply to requests for admission.

Applicants advised the intervenors present that Applicants may pursue summary disposition early (i.e., prior to the close of discovery) on the following contentions:

- Joint II, IV, V, VI, and VII (3 & 4)

- CCNC 12 and 14

- CHANGE 44 and 79 (c)

- Eddleman 9, 11, 15, 22A&B. 37B, 41, 45, 65, 75, 80, 83 and 84

- Wilson la-d, le-f3, and lg The purpose of the notification by Applicants was to alert the intervenors that should Applicants actually seek summary disposition of any of the listed contentions prior to the close of discovery Applicants would assert to the ASLB that any failure by intervenors to pursue discovery on those contentions is not an adequate defense to a motion for summary disposition. -

Applicants agreed to provide an identification of the currently admitted contentions Applicants consider to be

" environmental" and which would therefore be covered by the schedule stipulation.

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