ML20133J025
| ML20133J025 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/15/1985 |
| From: | Dignan T ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#485-806 OL, OL-2, NUDOCS 8510180232 | |
| Download: ML20133J025 (17) | |
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Filed:
October 15, 1985 I
i 00CFETED WC UNITED STATES OF AMERICA I 09 NUCLEAR REGULATORY COMMISSION before the f "Pr N -
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ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
)
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TEXAS UTILITIES ELECTRIC
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Docket Nos. 50-445-OL & OL-2 COMPANY et al.
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50-446-OL & OL-2
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(Comanche Peak Steam
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Electric Station,
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Units 1 and 2)
)
)
)
APPLICANTS' RESPONSE TO " CASE'S MOTION FOR RECONSIDERATION OF BOARD'S 8/29/85 MEMORANDUM AND ORDER (PROPOSAL FOR GOVERNANCE OF THIS CASE) AND/OR MOTION FOR A PROTECTIVE ORDER" Introduction Under date of September 25, 1985 CASE has filed a 26-page document entitled " CASE's Motion for Reconsideraton of Board's 8/29/85 Memorandum and Order (Proposal for Governance of this Case) and/or Motion for a Protective 1
Order" (hereafter "the Motion").
The lengthy title still can be described as " modest", given the content of the document.
In reality the Motion is a laundry list of requests for Board action.
The various requests are 8510180232 851015
$DR ADOCK 050 5
56 3 l
l
J properly grouped under three topics:
(1) Summary Disposition Matters (the bulk of the requests); (2) i Discovery and (3) Preservation of Evidence.
This response will deal with the requests in such format.
I.
Summary Disposition Matters A.
Applicable Legal Principles i
The summary disposition rule in NRC practice is set forth in 10 CFR 52.749.
Although not identical in wording, it is analagous to Rule 56 of the Federal Rules of Civil Procedure, Alabama Power Co.
(Joseph M.
Earley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974), and Federal Court precedent construing Rule 56 is to be accorded great weight in construing 10 CFR $2.749, Cleveland Electric i
Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
ALAB-443, 6 NRC 741, 756 n. 46 (1977).
While summary
" judgment" or " disposition" may be appropriate to dispose of "part" of a " claim",
F.
R. Civ. Proc. 56(a), or " matter", 10 CFR 52.749(a), the process "does not contemplate summary judgments on evidentiary matters en route to that goal."
Sparks v. England, 1 F.R.D. 688 (W.D. MO. 1941).
It is not a proper exercise of the summary disposition procedure to utilize it to rule on questions of admissibility by precluding the use of certain materials at trial.
Paley v.
Greenberg, 16 Fed. R.
Serv. 2d 1074 (S.D.N.Y. 1972),
i. _
The summary disposition procedure also contemplates the situation where a response in contemplated form would be impossible and provides for the motion to be held in abeyance in such a situation.
10 CFR S 2.749(c).
And even where no opposition is filed, summary disposition still may not be granted unless the movant's filings establish affirmatively the absence of a genuine issue of material fact.
ALAB-443, supra at 753-54.
As will be seen below, each of the foregoing pri'nciples bears upon the Motion at bar.
B.
The Primary Motion on Summary Disposition On page 22 of the Motion, CASE makes the following request:
"Regarding the Motions for Summary Disposition (Applicants' and CASE's), Rule that Applicants are in default in regard to their responses to CASE's answers to Applicants' Motions for Summary Disposition and in regard to CASE's First, Third, and Fourth Motions for Summary Disposition; and find that there are inadequate and/or erroneous pipe support designs at Comanche Peak, and further, that this raises additional questions regarding the assign of the rest of the plant."
This request should be denied in its entirety.
First of all the referenced Applicants' motions for summary disposition have been withdrawn and are now moot and answers to CASE's answers are no longer called for.
With respect to -. _.
i;.
Applicants' answers to CASE's first, third and fourth l
motions:
An indefinite continuance was granted to applicants by.the Board in January of 1985 with respect to j
the first motion, and with respect to all such unanswered f
motions (including CASE's first and fourth) there has been a i
tacit, if not explicit, understanding that matters other a
than some discovery in this process have been " shut down" since the beginning of this year.
Presumably CASE's request is for the Board to rescind this state of affairs.
Such an action would be counter-productive.
The subjects of the 1
i first and fourth motions are under scrutiny by CPRT and until CPRT concludes its efforts, it would be premature for the Applicants to respond substantively.
10 CFR $2.749(c).
With respect to the Third Motion, which seeks a declaration i
i that CYGNA lacks credibility and independence, the I
Applicants did file a procedural response on November 27, i
1984; CYGNA filed a more substantive response on December 7, 1984 which attaches the affidavit of Nancy H. Williams revealing numerous factual disputes to be resolved in 4
connection with that motion.
Moreover, the motion seeks rulings on credibility and independence which amount to 4
l rulings as to the weight to be accorded certain evidence when, as and if offered.
This constitutes a misuse of the summary disposition procedure as outlined in i I.A. above.
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Turning now to the request for a finding that there are in fact inadequate and/or erroneous pipe support designs at Comanche Peak, presumably this is a request to grant CASE's First Motion.
As noted above, answers are not now in order as CPRT is currently evaluating this matter.
In addition, the moving papers, even assuming no opposition is filed, amount entirely to arguments by CASE.
Even if unopposed they do not affirmatively establish the absence of a genuine issue of fact.
The statement of material fact is neither
" concise" nor factual in nature; it is a brief.
Finally there is a request that assumes the finding of inadequate or erroneous pipe support designs and asks the Board to find that "this raises additional questions regarding the design of the rest of the plant."
This is not a request for a finding of fact or ruling of law; it is a request for an evidentiary inference.
It is an improper use of the summary disposition procedure.
C.
Response to the Numbered Requests Nos. 1-14 Assuming a lack of success on the portion of the Motion discussed in $
I.B.,
supra, CASE then makes fourteen enumerated requests in connection with Summary Disposition matters.
We respond to them below seriatim. e
Requests Nos. 1 and 2 Request No. 1 is that the Board:
"1.
Clarify its Order at page 5 (item 6) to reflect that all of the Walsh/Doyle allegations covered in CASE's 8/22/83 Proposed Findings of Fact and Conclusions of Law (Walsh/Doyle Allegations) must now be dealt with, one way or another, by Applicants (rather than just the issues covered by Applicants' seventeen Motions for Summary Disposition) (see especially discussion at page 10 of this pleading);"
Request No. 2 is that the Board:
"2.
Recognize that the CPRT Plan as it presently stands does not purport to, and in fact does not, deal with the specific issues duly raised in the Walsh/Doyle allegations (which include, but are not limited to, the issues discussion in Applicants' seventeen Motions for Summary Disposition);"
Both of these requests essentially are that the Board tell the Applicants how to try their case.
The Walsh/Doyle allegations exist.
The Applicants, in order to obtain a license, must carry a burden of proof.
10 CFR S 2.732.
How the Applicants attempt to accomplish this is up to the Applicants.
It is not the intervenors function to ask the Board to tell the Applicants how to accomplish their task.
Requests Nos. 3&4 Request No. 3 is that the Board:
"3.
Grant CASE a Protective Order so that we do not have to respond to any Motions for Summary Disposition whch may be filed by Applicants or the NRC Staff until such i
i time as Applicants and NRC Staff have (1) i responded substantively to CASE's answers to Applicants' Motions for Summary 4
Disposition and (2) answered substantively and in proper form CASE's First, Third, and Fourth Motions for Summary Disposition (filed 10/6/84, and 1/14/85, respectively);"
Request No. 4 is that the Board:
"4.
If it does not grant the immediately preceding motion and rules instead that CASE will be required to answer any future Motions for Summary Disposition filed by either Applicants or the NRC Staff, rule without Applicants having the right to respond to CASE's answer (or, at a minimum, that Applicants be required to file any such response in a timely fashion and in strict compliance with the requirements set forth in the Board's 10/31/84 Memorandum (Multiple Filings) or forfeit any right to respond);"
Both of these are just plain premature.
When, as and if the Applicants file one or more motions for summary disposition in the future, the Board can enter such order as it deems proper regarding responses.
Requests Nos. 5&6 Request No. 5 is that the Board:
"5.
Confirm that at some point in time it will make a ruling on the Motions for Summary Disposition in question (both Applicants' and CASE's) based on the record at the time those motions were I
filed;"
Request No. 6 is that the Board:
"6.
Confirm that at some point in time it will make a ruling on whether, based on the Board's determination of the Summary Disposition motions in question (both i.- -
1 i
Applicants' and CASE's) based on the record at the time those motions were filed, a license would have been denied at that point in time;"
We assume that t.he argument in support of these requests is that which apper.rs on page 14 of the Motion.
CASE begins 1
that argument by rebserving:
"There are two separate aspects of the issues involved: the plant as it was; and the plant as it will be.
The Board appears to be considering only the plant as it will be."
Motion at 14.
We agree the Board is considering only the plant as'it will be.
That is all that the Board is properly concerned with.
1 The Board is not, and should not be, in the business of i
deciding abstract or moot questions.
See Northern States Power Co. (Prairie Island Nucl' ear Generating Plant, Units 1 j
and 2), ALAB-419, 6 NRC 3, 6 (1977); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
1 ALAB-557, 10 NRC 153 (1979).
CASE's proposition that NRC
(
Licensing Boards should issue findings with respect to what I
might or might not have existed in the past when intervening events have clearly overtaken is wholly without merit.
The only relevant matter for this Board is whether the plant complies with the regulations as of the time a license issues.
There may be a forum to explore alleged past i
mistakes real or imagined; this is not it.
i
Request No. 7 Request No. 7 is that the Board:
"7.
Rule that Applicants cannot now change their sworn affidavits (attached to their Motions for Summary Disposition) without
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prejudice; Rule that Applicants' sworn affidavits (as attached to their Motions for Summry Disposition, as well as any revisions) are to be considered as evidentiary affidavits, thus allowing their use as evidence in future Findings of Fact; f
Rule that, if the Board allows Applicants to change their affidavits, at a minumum Applicants must demonstrate good cause and state precisely why it is now necessary to make each such change; Rule that CASE will have the right to respond to all such' changes;"
Applicants have not attempted to change their affidavits.
Applicants have committed to correcting any mistakes that subsequent analyses reveal.
A prior affidavit of any witness can be used, if appropriate, to impeach the l
witness at a later time; no ruling to that effect is
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required.
Finally this is an improper use of the summary disposition procedure to attempt to obtain evidentiary rulings prior to trial.
See 5 I.A.,
supra.
l Request No. 8 Request No. 8 is that the Board:
"8.
Rule that each of Applicants' Motions for Summary Disposition are denied, since there is obviously widespread disagreement on substantive issues in
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each (should such denial mean that the afridavits attached to those Motions will act be retained as evidentiary, we j
withdraw this request);"
The Summary Judgment motions at issue have been withdrawn.
CASE argues in essence that they cannot be withdrawn.
That is not the law.
CASE argues, Motion at 5-6, that language in a prior order of March 5, 19821 in this proceeding is authority for the concept that a summary judgment motion once made and answered may not be withdrawn.
The cited and quoted language does not constitute authority for that proposition.
That order was dealing with the situation when an attempt was being made to withdraw a contention in the face of a summary disposition motion with respect to it.
The parallel in civil litigation is the concept that a plaintiff may not unilaterally dismiss a suit after an answer or motion for summary judgment has been L
filed.
F.
R. Civ. Proc. 41.
The theory is that once issue is joined, one cannot deprive the defendant of a day in court and possible res judicata benefit by unilateral dismissal.
The withdrawal of a summary judgment motion does not deprive an opponent of a day in court or any other benefit (other than the " win" of a denial).
Denial of a motion for summary judgment has no res judicata effect.
To 1
Texas Utilities Generating Co. (Comanche Peak Steam Electric Station), LBP-82-17, 15 NRC 593, 595 (1982) -
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I follow CASE's view is to say that even when a proponent of summary disposition recognizes that a response has negated the possibility of success by raising a genuine issue of material fact, the tribunal must still waste its time by issuing a formal decision.
That is bad policy and it is not j
the law.
1
-Requests Nos. 9-11 Request No. 9 is that the Board:
1 "9.
Rule that Applicants have defaulted on their 1984 Plan, and further, that this i
fact decreases the credibility of l
Applicants and their case;"
i Request No. 10 is that the Board:
"10. Rule that Applicants' unwillingness i
and/or inability to respond to CASE's answers to Applicants' Motions for Summary Disposition and to CASE's three I
Motions for Summary Disposition, coupled i
with the inadequacy of the CPRT's review of the specific issues raised by the Walsh/Doyle allegations, weighs heavily aainst Applicants and constitutes an admission by Applicants of inadequate and/or erroneous pipe support design and raises additional questions regarding the design of the rest of the plant;"
l Request No. 11 is that the Board:
l i
l "11. Rule that Applicants are in default regarding CASE's three Motions for Summary Disposition, and further, that i
Applicants' failure to respond bears adversely upon Applicants' credibility;"
1 l
Each of these are requests for credibility (i.e.,
evidentiary) rulings and are improper for the reasons articulated in i I.A.,
supra.
Moreover, as discussed above, l l
1 4
Request No. 10 seeks a premature ruling and an improper evidentiary inference therefrom on matters currently being considered by CPRT.
Request No. 12 Ree est No. 12 is that the Board:
"12. Should it not order Applicants to respond to CASE's answer to Applicants' Motions for Summary Disposition or to CASE's three Motions for Summary Disposition, rule that CASE is entitled to utilize each of these for discovery as request for admissions to Applicants under 10 CFR 2.742;"
i This request should be denied.
The motions are not in a form that is adaptable to requests for admissions.
Most sentences are argumentative and would result almost
]
certainly in blanket or near blanket denial for that reason alone.
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Request No. 13 Request No. 13 is that the Board:
"13.
Should it not grant any of Case's motions herein regarding the Motions for Summary Disposition, please clarify exactly what i
administrative procedures will be followed regarding summary dispositions in these proceedings;"
l This is a matter for the Board's discretion.
We respectfully suggest that simple adherence to 10 CFR $ 2.749 l l l
might be the most appropriate procedure (with grants of extensions of time as necessary).
Request No. 14 Request No. 14 is that the Board:
"14. Recognize that the delay caused by Applicants' failure to fulfill their 1984 Plan has been necessitated by Applicants, not CASE;"
This is a total misuse of the summary disposition process, and it is a request for a ruling wholly irrelevant to the issues in this proceeding.
II.
Discovery Matters The second main topic of the Motion is a request for reconsideration of certain statements the Board has made with respect to discovery.
Motion 19-20.
It does not seem to us that the Board's order has any inaccurate language in it on this subject and CASE admits as much.
Motion at 19.
Nevertheless, CASE requests (No. 15 on page 26 of the Motion) that the Board:
"15. Reconsider its Order at page 6, footnote 6,
regarding discovery, to reflect the fact that CASE has already begun attempting to collect data about the pipe-supports and other components being removed from the plant, and confirm j
CASE's right to discovery regarding this matter;"
i 1
I We fail to see the relevance or need for the change i
requested in the first independent clause; the request in i
the second independent clause should be denied.
CASE has no right to rulings on discovery requests until they are made and objected to.
CASE will have to demonstrate the relevance of information concerning a pipe support that is being, or has been, removed from the plant.
l II.
Motion for Preservation of Evidence i
Finally, CASE has requested an order that the I
Applicants:
retain in retrievable condition, in some retrievable location, with fully retrievable documentation, all pipe supports and cable tray supports which they remove as i
part of the CPRT effort."
Documentation will be maintained as we have stated in a l
prior submission.
A support no longer in the plant is irrelevant to any issue within the jurisdiction of this Board.
The request should be denied.
1 i
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l CONCLUSION The Motion should be denied.
1 Respectfully submitted, 4
Nicholas S.
Reynolds William A. Horin BISHOP, LIBERMAN, COOK PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Suite 700 l.
Washington, DC 20036 (202) 857-9800 Robert A. Wooldridge j
WORSHAM, FORSYTHE, SAMPELS
& WOOLDTCDGE 2001 Bryan Tower, Suite 3200 Dallas, TX 75201 (214) 748-9365 I
Roy F. Lessy, Jr.
.i Morgan, Lewis & Bockius 1800 M Street, N.W.
Washington, D.C.
20036 (202) 331-2706 l
Thomas C. Dignan, Jr.
R. K. Gad III ROPES & GRAY I
225 Franklin Street i
Boston, MA 02110 (617) 423-6100 t
TJ1T j
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Counsel for Appficants ThNmas G. Dignand$(r.
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a CERTIFICATE OF SERVICE i
i I, Thomas G. Dignan, Jr.,
one of the attorneys for the i
i Applicants herein, hereby certify that on October 15, 1985, I made i
service of the within document by mailing copies thereof, postaae prepaid, to:
' Peter B. Bloch, Esquire
- Herbert Grossman Chairman Alternate Chairman Administrative Judge Administrative Judge l
Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 i
- Dr. Walter H. Jordan Mr. William L. Clements Administrative Judge Docketing & Services Branch 881 W.. Outer Drive U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Washington, D.C.
20555 Chairman Chairman j
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555
+ Stuart A. Treby, Esquire Mrs. Juanita Ellis Office of the Executive President, CASE
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Legal Director 1426 S.
Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission 7735 Old Georgetown Road Joseph Gallo, Esq.
Room 10117 Isham Lincoln & Beale Bethesda, Maryland 20814 1120 Connecticut Ave., N.W.
j Suite 840
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Washington, D.C.
20036 l
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Renea Hicks, Esquire Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel P.O. Box 12548, Capitol Station U.S.
Nuclear Regulatory Commission Austin, Texas 78711 Washington, D.C.
20555
- Anthony Roisman, Esquire Joseph Gallo, Esquire Executive Director Isham, Lincoln & Beale Trial Lawyers for Public Justice 1120 Connecticut Avenue, N.W.
2000 P Street, N.W.,
Suite 611 Suite 840 Washington, D.C.
20036 Washington, D.C.
20036
+ Dr. Kenneth A. McCollom Mr. Lanny A.
Sinkin Administrative Judge 3022 Porter Street, N.W.,
- 304 Dean, Division of Engineering, Washington, D.C.
20008 Architecture and Technology Oklahoma State University Stillwater, Oklahoma 74078
- Ms. Billie Pirner Garde Mr. Robert D. Martin Citizens Clinic Director Regional Administrator, Government Accountability. Project Region IV 1901 Que Street, N.W.
U.S.
Nuclear Regulatory Commission Washington, D.C.
20009 Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 Elizabeth B. Johnson
- Geary S.
Mizuno, Esquire Administrative Judge Office of the Executive Cak Ridge National Laboratory Legal Director P.O. Box X, Building 3500 U.S.
Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Maryland National Bank Bldg.
Room 10105 7735 Old Georgetown Road Bethesda, Maryland 20814 Nancy Williams Mr. James E. Cummins Cygna Energy Services, Inc.
Resident Inspector 101 California Street Comanche Peak S.E.S.
Suite 1000 c/o U.S.
Nuclear Regulatory San Francisco, California 94111 Commission P.O.
Box 38 Glen Rose, Texas 76043
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ThoMhs G.'Di.gnan, Jr.
- Express Mail