ML20082K491

Answer Opposing Ohio Citizens for Responsible Energy 831115 Motion to Reopen Discovery on Issues 6,8,14 & 15 & Any New Issues Which May Be Admitted.No Cause Given to Alter Discovery Dates.Motion Premature.Certificate of Svc Encl

ML20082K491
Person / Time
Site:	Perry
Issue date:	11/30/1983
From:	Glasspiegel H CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8312050182
Download: ML20082K491 (10)

Text

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00CMETED USNRC November 30,,g98dC -2 20 :58 UNITED STATES OF AMERICA <rnem-- .

NUCLEAR REGULATORY COMMISSION L BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) '

CLEVELAND ELECTRIC ILLUMINATING ) Docket No. 50-440 COMPANY, ET AL. ) 50-441

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

APPLICANTS' ANSWER TO OHIO CITIZENS FOR RESPONSIBLE ENERGY MOTION TO REOPEN DISCOVERY ON ISSUES 6, 8, 14, and 15 By Motion of November 15, 1983,1 /Ohio Citizens for Responsible Energy ("OCRE") asks the Licensing Board to " reopen discovery" for Issue Nos. 6, 8, 14 and 15, "and for any new issues which may be admitted (or old ones readmitted)."2 / The Motion seeks discovery that is " practically unlimited (as much as is consistent with the NRC's rules of practice) in scope and amount."-

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OCRE has identified no reasons which justify lifting the discovery cut-off dates previously imposed by the Licensing Board. The Motion is premature with respect.to issues not yet admitted to the proceeding. Accordingly, the Motion should be denied.

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-- " Motion To Reopen Discovery on Issues 6, 8 14 and 15," dated November 15, 1983 (Motion). The Motion was served by mail on November 16, 1983.

2/

- Id. at 1.

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Id.. at 5-6.

8312050182 831130 )

PDR ADOCK 05000440 '

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OCRE's Motion recognizes that "[d]iscovery in this proceeding 4

has been closed for some time." / As noted at pages 1-2 of OCRE's Motion, the Licensing Board has previously imposed cut-off dates 5/

of September 30, 1982 for Issue 6 and 8, and January 31, 1983 6/

for Issues 14 and 15.- OCRE believes that "[a]t the times they were imposed, these restrictions were reasonable."7 /

The Motion states that, because the original hearing schedule for these issues has been delayed, and in consideration of the passage of time since the close of discovery, the discovery restric-tions "no longer serve the purposes for which they were adopted."-8/

The Motion further asserts, without factual basis, that "[t]he closure of discovery has shackled OCRE by severely limiting its ability to properly prepare its case."-

9/

OCRE's arguments support-ing these assertions conflict with the Commission's Rules and Statement of Policy, as well as with the law of this case. They must be rejected.

OCRE first argues that its request is "not untimely under the rules," citing 10 C.F.R. 2.740(b)(1) and Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-196, 7 A.E.C. 457, 467 (1974). OCRE misreads 10 C.F.R. 52.740(b)(1) as indicating that 4/

Id. at 1.

5/

See Tr. 753.

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See Tr. 800-801. The Licensing Board required follow-up dis-covery on Issues 14 and 15 to be filed within seven days from the time of receipt of answers to initial discovery. Id.

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Motion at 1.

8/

- Id. at 2.

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_Id.

A.

discovery filed prior to a prehearing conference held pursuant 10 to S2.752 "cannot be untimely under the NRC's rules of practice."- /

Contrary to OCRE's construction of the regulation, 10 C.F.R.

S2.740(b)(1) merely establishes the S2.752 prehearing conference as an outside limit on discovery, and does not in any way preclude a licensing board from setting an earlier cut-off date. The introductory language of 10 C.F.R. 52.740(b), which modifies the provisions of S2.740(b)(1), explicitly states that.the scope of discovery may be "otherwise limited by the presiding officer in accordance with this section."

The Licensing Board in this case has implemented 10 C.F.R.

S2.740(b) in a manner wholly consistent with the Commission's Statement of Policy on the Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C. 452 (1981), which instructs that the boards should manage and supervise all discovery, including not only the initial discovery directly following admission of contentions, but also any discovery conducted thereafter. The Commission again endorses the policy of voluntary discovery, and encour-ages the board, in consultation with the parties, to establish time frames for the completion of both voluntary and involuntary discovery. Each individual board shall deter-mine the method by which it supervises the discovery process. Possible methods include, but are not limited to, written reports from

the parties, telephone calls, and status report conferences on the record. In virtually all instances, individual boards should schedule i an initial conference with the parties to l set a general discovery schedule immediately after contentions have been admitted.

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Id.,13 N.R.C. at 456 (emphasis added).- / The Licensing Board l

has utilized all of the suggested management tools noted above, 10/

, _ I_d. at 3-4.

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See Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-81-22, 14 N.R.C. 150, 154-57 (1981).

0 including the establishment of reasonable discovery time frames, in recognition of the fact that "the Commission expects us to 12/

manage the discovery process in the interest of expedition."--

Commonwealth Edison Co., ALAB-196, which OCRE cites, does not support a wholesale lifting of the established discovery cut-offs in this case. The question considered by the Appeal Board in ALAB-196 was whether the licensing board had acted properly in granting a motion to quash a subpoena. The Appeal Board found, among other things, that the subpoena request was filed within the period for initiation of discovery authorized by the licensing board, that the subpoena in question met the Commission's " general relevance" standard applicable to obtaining discovery by subpoena, and that "there was no warrant for any speculation by the Licensing Board that granting the discovery would inevitably have led to delay." ALAB-196, 7 A.E.C. at 464, 466. In light of these and other findings, the Appeal Board ruled that the licensing board 13 abused its discretion in quashing the subpoena in question.- /

Thus, ALAB-196 involved timely filed discovery in a factual setting 12/

- Memorandum and Order Concerning the Status of Ashtabula County and Objections to the Special Prehearing Conference Order, LBP-81-35, 14 N.R.C. 682, 689 (1981). See Tr. 751 ("The Board can establish discovery deadlines, that is clear, and we were requested to do so by the Commission, and a public notice to that effect.")

13/

The Appeal Board emphasized that "[o]ur ruling on the timeliness of the instant discovery request should not be taken as denigrat-ing the significance of requiring that parties ' discovery requests be filed in a manner consistent with the goal of carrying on and completing licensing proceedings expeditiously."

_I d_ . , 7 A.E.C. at 467.

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completely dissimilar to our own, and is therefore inapposite.--

In both the August 13, 1982 and November 15, 1982 telephone conferences, the Licensing Board made it abundantly clear that additional discovery, beyond the targeted deadlines, would be 15/

available upon a showing of good cause.-- This is consistent with the Commission's rules. See 10 C.F.R. SS 2.711 and 2.732.

OCRE's Motion cites only two relatively limited areas, both relating 16/

to Issue #8,-- in which it seeks additional discovery.' If OCRE believes that it has good cause to file discovery with respect to these or other areas, OCRE has only to seek a good cause exception to the discovery cut-off under the Licensing Board's prior rulings in this case. (In this regard, the same standard will be applied whether the information sought is proprietary or non proprietary.

See Motion at 5). The parties have, in fact, successfully utilized l

14/

Similarly, Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 N.R.C. 1038, 1040 (1978), cited by OCRE at page 2 of its Motion, involves the application of the " general relevance" standard of 10 C.F.R. 52.740(b)(1) and does not involve the question, which OCRE raises, of removing established discovery cut-offs.

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See, e.g., Tr. 753 ("The Board in setting a target understands that there may be good cause for exceeding these deadlines.

We would not expect them to be exceeded without good cause.").

See also Tr. 800-01 ("After considering the arguments, we have decided to set a January 31 cut-off date on initial discovery requests on issues 13 through 15 subject to a showing of good cause for late filing.")

16/

OCRE asserts that it is entitled to receive information on hydrogen ignition experiments being conducted by the Hydrogen Control Owners' Group, and proprietary portions of a Westinghouse

Electric Corp. publication on the CLASIX-3 computer program.

i See Motion at 4-5. Applicant is willing to discuss with OCRE the basis for OCRE's assertion that such information is relevant to Issue #8; however, OCRE's two specific requests under Issue

1. 8 hardly justify a blanket reopening of discovery on Issues 6, 8, 14 and 15.

l

e the good cause exception to obtain extensions of the discovery 17/

schedule in specific instances.--

Thus, there is already a procedural mechanism in place for intervenors to obtain discovery as to relevant matters that were not known at the time of the discovery cut-off date. See Tr.

737-38. It.is therefore not " imperative that discovery be reopened" for "[n]ew information and data [which] are continuously being 18 generated with respect to the issues in question."- /

The Licensing Board has previously rejected a similar blanket motion, filed by Sunflower, to extend for an indefinite period of time the discovery schedule for Issue #1. Sunflower argued, among other things, that relevant information (final emergency plans) had yet to be published on Issue #1, that this information would have to be reviewed, and that "[s]ince there is no hearing date yet in place on this issue, no one (Applicant, Staff or Intervenors) would be prejudiced by permitting the time for discovery 17/ See, e.g., Memorandum and Order Concerning Motion For Extension of Time, dated October 28, 1981 (granting Sunflower Alliance, Inc. a 30-day extension of time within which to respond to Applicants' first set of interrogatories); Order Concerning Motion For Extension of Time, dated November 6, 1981 (granting OCRE a 30-day extension of time within which to respond to Applicants' first set of interrogatories); Letter, Applicants' Counsel to Licensing Board, dated April 4, 1983 (confirming the Board's granting of an extension of time within which to file follow-up interrogatories on Issues 13, 14 and 15).

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~- Motion at 4.

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See Sunflower Alliance Inc. Application To Extend Discovery Time on Contention One, dated September 30, 1982.

I

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• to remain open on this contention." The Licensing Board denied Sunflower's motion, stating, the purpose cf a discovery cut-off date is to require a party to complete as much discovery as is feasible before that date. The fact that Sunflower will obtain additional information in the future will permit it to argue that it has good cause for late-filing of interrogatories with respect to that material, providing that the information was not previously available to it.

We will not deprive Sunflower of its fair opportunity to seek discovery of matters' not previously known to it, but that is not a reason to extend the deadline on matters already known to it.

Memorandum and Order (concerning Request to Extend Discovery 21 /

on Issue #1), dated October 8, 1982, at 1.- Appl,icants submit that the same principles require the rejection of OCR3's Motion to lift the discovery cut-offs for Issues 8, 6, 14 and 15.

OCRE's final argument in support of its Motion is that "prac-tically unlimited discovery" is necessary "so as not to abridge 22/

OCRE's cross examination rights in the future."-- OCRE cites two procedural rulings by the Licensing Board during the Issue

1. 3 hearings, which assertedly " limited intervenors' cross examination on the grounds that the questions could have been (but were not) 23 asked during discovery. Tr. 1074, 1530-1."- /

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Id at 1.

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-- C f . Public Service Company of New Hampshire (Seabrook Station Units 1 and 2), LBP-82-106, 16 N.R.C. 1649, 1665 (1982).

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Motion at 5.

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_I_d.

t While Applicants believe that the rulings in question were 24/

proper,- the appropriateness of two discretionary rulings in a completed hearing on Issue #3 can have no conceivable relevance to the question of lifting discovery cut-offs on Issues 6, 8, 14 and 15. OCRE fails to explain how " practically unlimited discovery," in unspecified areas, will aid its future cross-examination rights. It is not possible for other parties or the Licensing Board to speculate in this regard.

For all the stated reasons, the Licensing Board should deny OCRE's Motion.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE s

By: '

- II JAY E. S LBERG, P.C.'

HARRY H GLASSPIEGEL

[/

Counsel for Applicants 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 DATED: November 30, 1983 i

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-/

In one case, contrary to OCRE's assertion, the Licensing Board made clear that cross-examination would not be limited. See Tr. 1532 (permitting questions by OCRE or Sunflower on Applicants' testimony in response to Board questions). In the other case, i

OCRE's cross-examination was neither relevant nor material, and called for speculation. See Tr. 1074.

6 November 30, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1

Before the Atomic Safety and Licensing Board In the Matter of )

) .

THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 l ILLUMINATING COMPANY, ET AL. ) 50-441 '

) l (Perry Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Applicants' Answer to Ohio Citizens For Responsible Energy Motion to Reopen Discovery on Issues 6, 8, 14 and 15" were served by deposit in the United States Mail, first class, postage prepaid, this 30th day of November, 1983 to all those on the attached Service List.

I Harry H. lasspiegel "

DATED: November 30, 1983

s l

!4 i

UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION

) Before the Atomic Safety and Licensing Board l

)

l In the Matter of )

i

) Docket Nos. 50-440  ;

l THE CLEVELAND ELECTRIC 50-441

)

} ILLUMINATING COMPANY (Perry Nuclear Power Plant, ) $

Units 1 and 2) ) /

?

(

! SERVICE LIST Atomic Safety and Licensing 4

Peter B. Bloch, Chairman Appeal Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry R. Kline Docketing and Service Section Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Colleen P. Woodhead, Esquire Mr. Glenn O. Bright Office of the Executive Legal Atomic Safety and Licensing Board Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 20555 Washington, D.C.

Christine N. Kohl, Chairman Atomic Safety and Licensing Ms. Sue Hiatt OCRE Interim Representative Appeal Board 8275 Munson Avenue U.S. Nuclear Regulatory Commission Mentor, Ohio 44060 Washington, D.C. 20555 Terry Lodge, Esquire Dr. John H. Buck 618 N. Michigan Street, Suite 105 Atomic Safety and Licensing Toledo, Ohio 43624 Appeal Board U.S. Nuclear Regulatory Commission '

Donald T. Ezzone, Esquire Washington, D.C. 20555 Assistant Prosecuting Attorney Gary J. Edles, Esquire Lake County Administration Center Atomic Safety and Licensing 105 Center Street Painesville, Ohio 44077 Appeal Board U.S. Nuclear Regulatory Commission John G. Cardinal, Esquire Washington, D.C. 20555 Prosecuting Attorney Atomic Safety and Licensing Ashtabula County Courthouse Jefferson, Ohio 44047 Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ,

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