ML20083N806

Motion for Extension of Time to Respond to W Eddleman Initial Interrogatories & Request for Production of Documents Re Eddleman Contention 15.Time Should Be Extended to 14 Days After ASLB Order.Certificate of Svc Encl

ML20083N806
Person / Time
Site:	Harris
Issue date:	02/01/1983
From:	Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8302030180
Download: ML20083N806 (7)

Text

~_ .~ _ - __

February 1, 1983

$bll,kiED UNITED STATES OF AMERICA :22 NUCLEAR REGULATORY COMMISSION Q Q ,;[ : ,

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

AND NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY ) 50-401 OL

)

(Shearon Harris Nuclear Power )

i*lant, Units 1 and 2) )

APPLICANTS' MOTION FOR EXTENSION OF TIME TO RESPOND TO WELLS EDDLEMAN'S INITIAL INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS RELATING TO EDDLEMAN CONTENTION 15 In its Memorandum and Order (Reflecting Decisions Made Following Prehearing Conference) dated September 22, 1982, the Board rejected every subpart of Eddleman Contention 15 other than the subpart dealing with capacity factors. Although it tentatively accepted that portion of Eddleman 15, the Board noted that the Contention could be mooted when Applicants filed an amended Environmental Report (hereinafter ER) .

On October 15, 1982, Applicants filed Objections and Requests for Clarification Relating to the Board's Memorandum and Order 88 (Reflecting Decisions Made Following Prehearing Conference) re-l @

l g8 questing that the Board modify its September 22 order to defer mn O ruling on Eddleman 15 until after the ER was amended.

8x

oo Applicants amended the ER on December 21, 1982. On January 11,

{ k 1983, the Board issued a Memorandum and Order (Addressing Motions

! E LC 03

m__.._

e i

for Reconsideration and Clarification of the Board's Prehearing Conference Order) (hereinafter January 11 Order) in which it advised Intervenors Eddleman and CHANGE that they had 30 days in which to file revised contentions addressing Applicants' amended ER. Applicants and Staff will have 10 days to respond to any amended contentions. At the end of that time "The Board will then reconsider and rule upon the original contentions or any timely revisions thereof." January 11 Order at 3.

On January 15, 1983, Mr. Eddleman served Applicants with 42 interrogatories and an extensive request for production of documents.

Under 10 C.F.R. S 2.740 (b) and 10 C.F.R. S 2.710, Applicants must respond to Mr. Eddleman's interrogatories by February 3,1983. For the reasons discussed below, Applicants move the Board to extend the time in which they may respond to the interrogatories until 14 days after the Board issues an order on reconsideration of Eddleman 15.

APPLICANTS SHOULD NOT BE REQUIRED TO

RESPOND TO MR. EDDLEMAN'S INTERROGATORIES UNTIL AFTER THE BOARD RECONSIDERS CONTENTION 15.

l In its Order of January 11, 1983, the Board allowed Mr. Eddleman to choose between two courses: 1) he may rest on Eddleman 15 as it was originally stated or 2) he may revise Contention 15 to I address Applicants' amended ER. Regardless of which option the intervenor elects, discovery on Eddleman 15 is inappropriate at this time and Applicants' motion for an extension should be granted.

If Mr. Eddleman chooses not to revise Eddleman 15, the Board may well find that the Contention was mooted by the amendment of

Applicants' ER. This possibility was recognized in the original Memorandum and Order dated September 22, 1982. In light of this uncertainty Applicants should not be required to undertake the considerable burden of responding to over 40 detailed interrogatories and additional requests for production of documents.

Mr. Eddleman may elect to revise Eddleman 15 in order to fore-stall a ruling of mootness. In this case, forcing Applicants to proceed with discovery will lead to an even more egregious result.

The 42 interrogatories propounded by Mr. Eddleman obviously will have very limited relevance to a revised Contention 15. Mr. Eddleman will certainly reframe his questions to focus on the issues raised in this revised contention. Much of the information sought may be entirely unrelated to that requested in his first set of interrogatories.

Yet absent an extension of time, Applicants already will have under-gone the burden of responding to discovery requests. In the interests of justice and economy, Applicants should not be required to comply with a discovery request that will result in such duplicative and wasteful effort.

Insofar as the interrogatories propounded are relevant to the amended contention, discovery is clearly inappropriate at this time.

l l

Discovery on the subject matter of a contention can be obtained only after the contention has been admitted to the proceeding. 10 C.F.R.

l 5 2.740 (b) (1); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit No. 2), ALAB-31, 4 A.E.C. 689, 690-91 (1971). The Board has not reviewed or admitted any revised version of Contention

15. An intervenor may not use discovery as a tool to develop the 1

specificity required for admission of a contention. See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 N.R.C. (August 19, 1982) ; Northern States Power Co.

(Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 A.E.C. 188 (1973), aff'd. CLI-73-12, 6 A.E.C. 241 (1973) , aff' d.

sub. nom. BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974).

Clearly discovery will serve no legitimate interest at this stage of the proceedings. Since Mr. Eddleman has been allowed to reformulate Eddleman 15, it is logical to postpone discovery until the Board has addressed the status of original Eddleman 15 or the revised contention. At that time Mr. Eddleman may serve proper discovery focused on the contentions that are actually at issue. Because the schedule for discovery on environmental con-tentions previously discussed by the parties provides ample time for discovery on the amended Eddleman 15, Mr. Eddleman will not be prejudiced by the brief extension requested. A limited extension merely will relieve fplicants of the burden of partici-pating in a wasteful and irrelevant discovery process.

CONCLUSION For all of the reasons stated above, Applicants' Motion for Extension of Time until 14 days after the Board issues an order on the admissibility of Eddleman 15 should be granted.

.. - - - - - - - - - - - - - \

D Applicants have discussed the instant motion with Mr. Eddleman to determine whether agreement could be reached on the relief Applicants seek. Mr. Eddleman, however, will oppose this motion.

Respectfully submitted, G'eorge F. Trowbridge, P.C.

Thomas A. Baxter, P.C.

John H. O'Neill, Jr.

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) 836-7707 Dated: February 1, 1983 I

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

)

CAROLINA POWER & LIGHT COMPANY )

AND NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY ) 50-401 OL

)

(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Applicants' Motion for Extension of Time to Respond to Wells Eddleman's Initial Interrogatories and Request for Production of Documents a Relating to Eddleman Contention 15" were served this 1st day of February, 1983, by deposit in the U.S. mail, first class, postage prepaid, to the parties identified on the attached Service List.

/

Thomas A. Baxter, P.C.

O 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 Harric Nuclear Power )

Plant, Units 1 and 2) )

SERVICE LIST Janes L. Kelley, Esquire John D. Runkle, Esquire Atcmic Safety and Licensing Board Conservation Council of North Carolina U.S. Nuclear Regulatory Canission 307 Granville Road Washington, D.C. 20555 Chapel Hill, North Carolina 27514 Mr. Glenn O. Bright' M. Travis Payne, Esquire Atmic Safety and Licensing Board Edelstein and Payne U.S. Nuclear Regulatory Cm mission P.O. Box 12643 Washington, D.C. 20555 Raleigh, North Carolina 27605 Dr. James H. Carpenter Dr. Richard D. Wilson Atmic Safety. and Licensing Board 729 Hunter Street U.S. Nuclear Regulatory C m mission Apex, North Carolina 27502 Washington, D.C. 20555 Mr. Wells Eddleman Charles A. Barth, Esquire 718-A Iredell Street Myron Kaman, Esquire Durham, North Carolina 27705 i Office of Executive Iagal Director U.S. Nuclear Regulatory Ctanission Ms. Patricia T. Newnan Washington, D.C. 20555 Mr. Slater E. Neunan Citizens Against Nuclear Power Docketing and Servim Section 2309 Weymouth Court Office of the Secretary Raleigh, North Carolina 27612 U.S. Nuclear Regulatory Om mission Washington, D.C. 20555 Richard E. Jones, Esquire Vice President & Senior Counsel Mr. Daniel F. Read, President Carolina Power & Light Company

! C21apel Hill Anti-Nuclear Group Effort P.O. Box 1551 P.O. Box 524 Raleigh, North Carolina 27602 l

Chapel Hill, North Carolina 27514 Dr. Phyllis Lotchin 108 Bridle Run Chapel Hill, North Carolina 27514

--m--_ -- u.-