ML20083M749
| ML20083M749 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 04/13/1984 |
| From: | Swiger M CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8404180326 | |
| Download: ML20083M749 (7) | |
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April 13, 1984 00CHETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 14 APR 17 P1:47 Before the Atomic Safety and Licensing Boafh0F SECRETAP)
GCML flNG 4 SEFVif:i, MAPCH In the Matter of
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THE CLEVELAND ELECTRIC
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Docket Nos. 50-440
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50-441 (Perry Nuclear Power Plant,
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Units 1 and 2)
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APPLICANTS' ANSWER TO OCRE MOTION TO EXTEND THE DISCOVERY DEADLINE ON ISSUE NO. 16 By motion of March 28, 1984 (filed March 29, 1984), Intervenor Ohio Citizens for Responsible Energy ("OCRE") asks the Licensing Board to extend the discovery deadline on Issue No. 16, concerning standby diesel generator reliability.
OCRE requests that the dead-line of April 6, 1984 set by the Licensing Board in its December 23, 1984 Memorandum and Order (New Contention on Diesel Generators), at 8, be extended "until the NRC Staff issues'its Safety Evaluation on the TDI DG Owners Group Design Review / Quality Revalidation Program (currently scheduled for May 15) and for a reasonable period of time (e.g.,
2 weeks) thereafter."
OCRE Motion to Extend the Discovery Deadline on Issue #16 ("OCRE Motion"), at 2.1!
OCRE's motion is without good cause and should be denied.
1/
OCRE is apparently referring here to the NRC Staff's (" Staff's")
evaluation of the Owners Group's reports on the 16 " critical items" identified by the Owners Group.
Applicants understand that the Staff's evaluation is now scheduled to be issued June 15.
8404180326 840413 PDR ADOCK 05000440:
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The Licensing Board has made clear that it will not entertain blanket requests to extend discovery.
In denying earlier in this proceeding a motion by Intervenor Sunflower Alliance Inc., et al.
(" Sunflower") for an indefinite extension of discovery on Issue No. 1, the Licensing Board stated:
[T]he purpose of 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 addi-tional 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 avail-able 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 dead-line on matters already known to it.:
Memorandum and Order (Concerning Request to Extend Discovery on Issue #1), dated October 8, 1982, slip op. at 1 (emphasis added).
The Licensing Board reaffirmed these principles when it denied OCRE's motion to reopen discovery on Issues No. 6, 8, 14 and 15.
See Memorandum and Order (OCRE Motion to Reopen Discovery),
dated December 20, 1983, slip op at.1-3.
More recently, the Licensing Board elaborated on its requirements for conducting additional discovery by stating that, "[i]n general, we will not rule on general requests to reopen diservery unless they are accompanied by the interrogatories or questions to which answers are sought. "
Memorandum and Order (Motion to Reopen Discovery),
dated February 28, 1984, at 3 (emphasis added).,
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The principles established by these previous discovery rulings by the Licensing Board clearly apply to the instant motion.
- However, OCRE ignores the Licensing Board's rulings entirely.
OCRE's motion is not accompanied by specific interrogatories to which answers are sought.
Neither does OCRE identify any particular additional information or material which it seeks to obtain.
Rather, OCRE in its motion observes generally that there is
" voluminous information being compiled by the NRC Staff and by the utilities" and that "much more material will be produced and generated before this issue is near resolution."
OCRE Motion at 1.
OCRE also states that it has received a large number of documents from Applicants through discovery and that (as of March 28) there still were documents to be produced.
OCRE complains that " [il t is unreasonable to expect a public interest group with limited resources and personnel like OCRE to evaluate this extremely large amount of information and to formulate follow-up discovery based on these documents by April 6."
Id.
at 2.2/
2/
OCRE filed initial discovery on Applicants on January 6, 1984.
Applicants filed their answers on February 8, 1984.
OCRE then submitted follow-up interrogatories to Applicants on February 18, 1984, which Applicants answered on March 8, 1984.
OCRE's final inspection of documents produced by Applicants was conducted on April 2, 1984; and Applicants hand delivered the copies requested by OCRE as a result of that inspection (about 150 pages) on April 5, 1984, before the deadline for follow-up interrogatories established by the Licensing Board.
In response to a telephone re-quest by OCRE Representative Susan Hiatt to extend discovery, Applicants agreed to an extension until mid-April for OCRE to sub-mit follow-up interrogatories on the documents recently received from Applicants and for OCRE to submit its answers to Applicants' interrogatories to OCRE, which were served on March 9, 1984 by Express Mail.
Ms. Hiatt then indicated that she would file the instant motion.
Applicants assume that OCRE will submit its answers to Applicants' interrogatories, which were due on March 26, 1984, and that Applicants will be permitted to file follow-up interrogatories on those answers.
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OCRE's arguments simply miss the point of the Licensing Board's previous discovery rulings.
The procedure established by those rulings is that, once a party obtains information which it believes provides good cause for further discovery, the party must make a motion for extension or reopening of discovery, setting forth the good cause for extension or reopening as well as the specific interrogatories to which answers are sought.d!
OCRE, however, by seeking a blanket extension of discovery until some unspecified date, is attempting to receive assurance in advance that it may obtain further discovery without having to show good cause or provide specific discovery requests.
OCRE~
is asking the Licensing Board to assume that any information (e.g., information contained in yet-to-be submitted Board Noti-fications) relating to Transamerica Delaval, Inc. standby diesel generators will constitute good cause for further discovery.
Such information, however, may have been previously available or may not even apply to che Perry Nuclear Power Plant.
3/
OCRE's further argument that the Licensing Board's established procedure for additional discovery will " burden the Board with requests for permission.to file late discovery every time some new information (e.g., a Board Notification) becomes available,"
OCRE Motion at 2, and thereby delay the proceeding is misplaced.
Since the Licensing Board established the procedure to promote
" thoughtful hearing amanagement," Memorandum and Order (OCRE Motion to Reopen Discovery), dated December 20, 1983,. slip op. at 2, presumably the Licensing Board will not.be unduly burdened by it.
_4_
1 With respect to CCRE's complaint that it was unable to meet the April 6, 1984 deadline for follow-up discovery because of its
" limited resources and personnel," the Commission in its Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C.
452, 454 (1981), said:
Fairness to all involved in NRC's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with appli-cable. law and Commission-regulations.
While a board should endeavor to conduct the proceeding in a manner that takes account of the special circumstances faced by any participant, the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations.
For all of the above reasons, OCRE's motion should be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE BY:
Ms'c4 k. hs'V Jay E. Silberg, P.C.
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Michael A. Swiger Counsel for Applicants 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 DATED:
April 13, 1984 - - -
t April 13, 1984 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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THE CLEVELAND ELECTRIC
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ILLUMINATING COMPANY, -- --ET AL.
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Docket Nos. 50-440
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50-441 (Perry Nuclear Power Plant,
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Units 1 and 2)
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CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Applicants' Answer to OCRE Motion to Extend the Discovery Deadline on Issue No. 16" were served by deposit in the United States Mail, First Class, postage prepaid, this 13th day of April, 1984, to all those on the attached Service List.
Ytthk
'Y MICHAEL A.
SWIGER DATED:
April 13, 1984 j
UNITED STATES OF AMERICA NUCI. EAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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TEE CLEVELAND EI.ECTRIC
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Docket Nos. 50-440 ILLUMINATING COMPANY
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50-441
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(Perry Nuclear Power Plant,
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Units 1 and 2)
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SERVICE LIST _
Atomic Safety and Licensing Peter B. Bloch, Chairman Appeal Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Cossaission Washington, D.C.
20555 washington, D.C.
20555 Docketing and Service Section Dr. Jerry R. Kline Atcimic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Ccamission 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 Connaission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Christine N. Kohl, Chairman Ms. Sue Biatt Atomic Safety and Licensing OCRE Interim Representative Appeal Board U.S. Nuclear Regulatory Commission 8275 Munson Avenue Washington, D.C.
20555 Mantor, Ohio 44060 Terry Lodge, Esquire Dr. W. Reed Johnson 618 N. Michigan Street, ' Suite 105 Atomic Safety and Licensing Toledo, Ohio 43624 Appeal Board U.S. Nuclear Regulatory Comunission Donald T. Ersone, Esquire Washington, D.C.
20555 Assistant Prosecuting Attorney Gary J. Edles, Esquire Lake County Administration Center 105 Center Street Atomic Safety and Licensing Painesville, Ohio 44077 Appeal Board U.S. Nuclear Regulatory Connaission John G. Cardinal, Esquire 4
Washington, D.C.
20555 Prosecuting Attorney Atomic Safety and Licensing Ashtabula County Courthouse Jefferson, Ohio 44047 Board Panel U.S. Nucisar Regulatory Commission l
l Washington, D.C.
20555
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