ML20137F271
| ML20137F271 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 01/11/1986 |
| From: | Guild R GUILD, R., ROREM, B. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#186-753 OL, NUDOCS 8601170489 | |
| Download: ML20137F271 (17) | |
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Januarg11, 1986 ED
-UNITED STATES OF AMERICA 4 1 NUCLEAR REGULATORY COMMISSION 36 g
{' A10:gy BEFORE THE ATOMIC SAFETY AND LICENSING,mBOARD l , DfTi$
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[In the Matter'of: )
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[ COMMONWEALTH EDISON COMPANY
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Docket No. 50-456 50-457 U{
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Station, Units 1 and 2) )
F -INTERVENORS' MOTION TO' REVISE HEARING SCHEDULE AND MOTION FOR SANCTIONS l 'Intervenors Bridget Little Rorem, et al., move for the t
adoption of the schedule set forth in Attachment A leading to a hearing on Quality Assurance issues commencing May 20, 1986- and for the imposition-of sanctions upon Applicant Commonwealth Edison Company as provided for in the Commissich's Statement of Policy on Conduct of Licensing Proceedings, CLI-8198, 13 NRC 452 L (1981), and by 10 CFR SS2.707 and 2.718 for flagrant breach of obligations imposed upon it by agreement and by law.
The hearing schedule proposed here is simply the schedule agreed to in substance by counsel for Applicant, Intervenors and staf f December 6,1985, */ extended only by an increment of two weeks to account for an intervening two-week delay occasioned by responding to the Commission's December 5, 1985, Order. This proposed schedule provides for the minim'um time necessary for
- / Marked-up November 18, 1985 proposal by Applicant, Attachment B.
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-Intervenors - toEcomplete. discovery on Applicant's still-incomplete r corrective ~ action programs and to adeguately prepare for hearing.
Intervenors'ask the Board to impose sanctions upon Applicant (for its conduct in: breaching the scheduling agreements entered
-into.by the parties, for.its departure from established customs of. courtesy 'and practice without prior notice to opposing counsel, and forLengaging in sharp and vexatiobs litigation tactics to the unfair prejudice of Intervenors and the NBC Staff.
-Intervenors believe that appropriate sancbions should include dismissal of Applicant's December 20, 1985, Motion For Summary Disposition, a .bar to any further recourse to. summary disposition by Applicant (though not by NRC Staff), and a warning that future similar misconduct will result in additional sanc-
'tions against Applicant and its counsel. Such sanctions are necessary'in. order to effectively mitigate the harm to the parties caused by the misconduct, and adverse impact on the conduct of the proceeding, as well as to deter future misconduct.
CLI 81-8, 13 NRC 452, 454 (1981). Commonwealth Edison Company (Byron-Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC 1400, 1416-1421 (1982).
This proceeding is formally governed by the Board's October 23, 1985,. Order approving the parties' October 18, 1985, Joint Motion To Revise Hearing Schedule. The motion was founded upon Appli -
cant's most recent " delay in completion of certain corrective action programs." Order, p. 1. Under the presently approved schedule discovery was to end and summary disposition motions were. required to be filed by December 2, 1985. OA hearings were 2
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to commence March 18, 1985. Due to delays in Applicant's responses _to1Intervenors discovery and further slippage.in its
-corrective action programs, the parties understood that a revised schedule would be agreed upon and' submitted for Board approval.
Applicant's-November 18, 1985, proposed revision, Attachment B, served as the-basis for discussion and agreement. As of Friday, December- 6,11985, counsel for the parties had agreed, in substance, to a sequence of steps leading to bearing and a narrow range of dates within which such steps were to occur. Said agreement is reflected in the mark-up of Applicant's November 18, 1985, proposal,; Attachment B, which is re-typed for the convenience of
-the reader and identified as Attachment B-1. At that time the parties were informed of the Commission's December 5, 1985, Order, and by the following Monday had agreed to cancel nine
' discovery depositions in order to meet a Commission filing dead-line of December 19, 1985. Our agreed schedule had slipped
~further by two weeks.
On Tuesday,-December 17, 1985, the undersigned counsel for Intervenors' contacted' Michael I. Miller, Esguire, lead counsel for Applicant, to inquire about the status of the parties' scheduling agreement. M r. Miller confirmed the narrow range of dispute as to filing dates and stated that Applicant had no objection to Intervenors' representation of such agreement in our Commission filing of the next day. We then described, in 3
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writing, the status of our scheduling agreement to the Commission as follows:
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At the time the parties. learned of the Commission's December 5,1985 Order, to which these responses are addressed, the parties were in substantial agreement on a revised litigation schedule to be submitted for approval to the Licensing Board.
This schedule contemplated a OA hearing commencement date between. April 22 and May 6, 1985, dependent upon dif fering views on the timing of a final round of discovery and summary disposition.
Intervenors' Response to Commission Ouestions, December 19, 1985,
- p. 13. As the marked-up Attachment B (Attachment B-1) reficcts, the parties were in disagreement only on whether summary disposi-tion response time should_ overlap interrogatory response time by nine days. Applicant proposed the filing of- summary disposition motions on January 15, while the NRC Staff and Inter,venors pro-
. posed that such motions be filed on- Monday, January 27, af ter interrogatories were answered on Friday, January 24 This narrow dispute accounts for the range of hearing start dates from April 22 as proposed by Applicant to May 6 as proposed by the Staf f and Intervenors.
Counsel for the parties attended a discovery deposition set by Applicant on Wednesday, December 18, 1985. Applicant's counsel gave no notice of any intent to recede f rom its schedule agreement. Counsel for Intervenors and the NRC Staff departed for- the holidays with the understanding that the next formal
~ filings would be made no earlier than January 10,1985, and would consist of a final round of interrogatories under.the agreed schedule.
However, in contravention of the prior understandings, some-
-time on December 20, 1985, Mr. Miller served fourteen motions for summary disposition on Applicant's behalf accompanied by "over 4
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!300 pages'of. testimony by over: 20; witnesses." Applicant's Motion n
To Revise HearingfSchedule, p. 2, - Janua ry 9, 1986. Counsel for
.Intervenors ' learned"of Applicant's " Christmas present" only on their.. return-to Chicago-DecemberJ30, 1985.
. Applicant has since served on Intervenors a Second Set of Quality Assurance Interrogatories and Pequests to Produce on
. January;9,--1986; has noticed one deposition for January 14, or.e lfor January:20,1four depositions for January 21, two depositions for January-22, and a deposition for January 27, 1986. Inter-
.venors have informed Applicant's counsel of our objection to this deposition schedule.. Applicant has insisted on scheduling these
. matters to conflict with our preparation of responses to their voluminous summary disposition filings which are now due January 31, 1986?(pursuant to the Order granting an extension to Intervenors, of January,7, 1986), and with our responses to their interroga-tories and document requests which are now due January 23, 1986.
' Applicant's breach of the December schedule agreement as to the1 timing and sequence ~of pre-hearing actions has seriously disrupted Intervenors' discovery and hearing preparation plans and activities. .Through its unilateral action in the unscheduled Efiling of summary disposition- and discovery requests which require mandatory attorney responses and through setting deposi-
'tions at times known to. conflict with outstanding obligations of Intervenors' . cot wel, Applicant has deliberately disrupted the hearing schedule, caused considerable waste of time and the unnecessary expenditure of effort by all parties. All parties understood that the agreed schedule represented a measured and 5
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p well-considered seguence of events, carefully timed to permit efficient and effective action leading to hearing. -
For example, all parties understood af ter explicit discus-
'sion that Intervenors would be engaged in intensive document
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reviews between December 19, 1985 and January 10, 19 8 6, a s a
-foundation for the preparation of a narrowly focused third set of interrogatories. This time for document review was necessary because a full deposition schedule in November had precluded thorough review and processing of responses by Applicant to Intervenors second set of. interrogatories. Applicant's summary
-disposition and discovery filings have effectively preempted such efforts by-Intervenors and will therefore adversely influence our discovery actions which were to follow.
Prematurely filed summary disposition and discovery requests
.by Applicant not only cause a considerable wasted effort, but also fail to perform the legitimate functions of the narrowing of Lissues and disclosure of facts, */ where, as here, the preliminary discovery by the. adversary remains incomplete. Intervenor is fully capable of responding to such premature ciaims, but the substantive-product is highly unlikely to warrant the expenditure of time and resources-required.- Applicant full well understood this principle when it entered into the schedule agreement which called for the completion of document reviews and.a third round of interrogatories before use of summary dispositions.
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- / Statement of Policy on the Conduct of Licensing Proceedings, CLI-81-8, 13 NBC 452 (1981).
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Since Applicant has stated no reason for its. unilateral breach of the scheduling agreement (nor even given prior notice of its' intent to renege)k it is plain that Applicant sought advantage to itself, both f rom the trial tactics themselves, and from the. surprise employed in their use. Applicant's January 9,
'1986, Motion To Revise Ilearing Schedule seeks to eliminate signi-
<ficant discovery opportunity for Intervenors and to rush to
- hearing April 1,1986, three weeks earlier than its December agreement. In addition,.the disruption of the other parties' hearing preparation activities, as previously detailed, was a clearly known consequence of Applicant's sharp tactics. Even if permitted to go unchecked we believe such advantage will likely prove ^short sighted and-illusory since less efficient pre-hearing activities wil'1 lead only to less efficient hearings.
It seems, however, that Applicant's real motive in employing such tactics is to paint Intervenors into a corner of Applicant's own-design.in order to obtain advantage outside of these proceed-ings.- By pressuring Intervenors with their barrage of premature and burdensome filings Applicant forces the Intervenors to cry
" uncle" and plead for " delay" - a " delay" which Applicant itself has manufactured, which did not exist under Appiicant's own schedule agreement, and which has followed prior extensions requested by Applicant for its pre-hearing activity, which were not objected to by Intervenors. In essence, ht /'.ng " slowed the case down" for its benefit, Applicant now seeks to " hurry the
- case up" now that the discovery ball has moved into Intervenors' i
court. Applicant's unfair, bad-faith tactics not only disrupt 7
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- Ithe1 hearing. schedule,:but merit the imposition of' appropriate sanctions.-
' Applicant's - tactics are. furtber evidenced :by Commonwealth
. Edison's most _ recent public posturing, following close on the
. heels of--the-filings in hhis case. In its' January 9, 1986, press release heralding its Baidwoo'd rate proposals just filed in the
. Illinois Commerce Commission proceeding initiated by Business and
-Professional People for' the Public Interest _ (BPI), Edison accuses BPI of "a history of deliberate delay tactics by Intervenors in the nuclear licensing process." Press Release, " Edison Proposes Braidwood Spending - Limit," January 7, 1986, Attachment C.
To the contrary, each and every schedule delay in this proceeding has
.been either sought'or occasioned by Applicant itself. */ Appli-cant now attempts to create the appearance of delay by Inter-venors in order to fulfill its own prophecy.
Applicant's bad-faith breach of agreement should be miti-gated by the re-imposition of the previously agreed upon hearing schedule (supplemented by two weeks to account for the o
Commission's questions), as well as by the-sanction of barring Applicant f rom summary disposition.
-_ Sanctions should be imposed upon Applicant for its unilateral breach of the December scheduling agreement among the
- / Order Admitting Amended QA Contention, LBP-85'-20, June 21, 1985 - S11p Op., p. 21; Commonwealth Edison Company's Motion To Amend Hearing Schedule, July 17, 1985; Joint. Motion To Revise Hearing Schedule, September 3, 1985 (Applicant delay in responding-to Intervenors' interrogatories); Joint Motion To Revise Hearing Schedule, October 18, 1985 (Applicant delay in completion of certain corrective action programs).
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parties, and' for: failing to meet its obligations as a party imposed by law. Applicant'a initial Motion To Amend Hearing Schedule acknowledged that Intervenor should have full discovery
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on all relevant correction action programs within the established deadlines. "Should this assun ption prove incorrect in the future, counsel-.for the respective parties are prepared on an informal basis-to adjust the discovery deadlines to provide for such . discovery." Motion, July _19, 1985, p. 3.
This Board adopted the . proposed schedule " subject to the understandings of the parties set forth in the July 19, 1985 cover motion."
Prehearing Conference Order, p. 1, August 1, 1985. For self-serving tactical purposes, Applicant has deliberately chosen not to meet the obligations imposed upon it by agreem'ent and Board
. Order. Further, Applicant's unilateral actions in reneging on both its schedule agreement and its cos,mitment to " informal" adjustment of the schedule by agreement of the parties, without giving timbly notice to opposing counsel represent such sharp and unfair tactics as are deserving of rebuke and sanctions. See, DR 7-106(c)(5) Code of Professional Responsibility, American Bar Association. Applicant's apparent motive to falsely paint Inter-venors as engaging in " deliberate delay tactics," Attachment C, adds further grounds f6r the measured sanctions proposed by o Intervenors.
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CONCLUSION For the_ foregoing reasons, Intervenors move for the adoption of the proposed hearing schedule, Attachment A, and for the imposition of sanctions _upon Applicant as set forth above.
Date: ~ January 11, 1986 Respectfully submitted, Robert Guild Douglass W. Cassel Timothy W. Wright, III By: I W
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Robert Guild One of the Attorneyf for Intervenors Rorem, et al.
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. Robert Guild, Esq. ,
Douglass W. Cassel, Jr.
Timothy if. Wright, III 109 North Dearborn Suite 1300 Chicago, Illinois 60602
'(312) 641-5570 10 l
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Attachment A INTERVENOPS' ' PROPOSED SCHEDULE a
EJanuary 24,1986 Last day for. filing and receipt of '
' interrogatories.
February 7 Deadline for filing answers to interrogatories filed on-1/24; discovery ends except for
' depositions.
g LPebruary'10 Deadline for fl]ing . motions 'for. summary disposition on OA contention (no summary
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L disposition on 82-05 issue).
~ February 13 Deadline for identification of OA witnesses
, by Applicant, and NRC Staff except for 82-05 issue.
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. March 10' Answerr> co motions for summary disposition.
April.10 -Target date for ASLB ruling on motion for summary disposition-and deadline for identi-fication of OA witnesses by Intervenors (Intervenors-to use best efforts to identify witnesses earlier .than deadline.) ,
G (AprilL15 , Deadline for concluding witness and non-witness depositions.
.May--2 File written direct testimony on -0A issues
. remaining after summary disposition.
1 May 12 Pile Motions to Strike prefiled OA testimony. >
May 20 Hearing commences on OA Contention; first day set aside to bear argument and rule on any Motions to Strike and other preliminary matters.
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s-Attachment B SCliEDULE h -
I I /9 D e * = w--2fr, 195 , Last day for filing and roccipt of interrogatories.
ffffJJuvasy 1G, lius Deadline for filing answers to interrogatories /f 2 h
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I filed on 12/27; discovery ends except for depo- _.
sitions. ,
') -} , J a n u a r y 1 5 Deadline for filing motions for summary dispoei- /ff h l tion on QA Contention (no summary disposition on pc 82-05 issue),
January 22 Report on 82 -05 Corrective Action Program received by par es+ 'and deaaline tor identification of QA nessen by Applicant, and NRC Staff except for 82-05 issue. .]- 5,
/ /30 Answers to motions for summary dinposition.
b February 12 March 3 NK Written Staf-f-ponitiva vu 0 2-05-4eeue--received-by.
q m iuo and deadline for identifying NRC Staff witnes oco--on-saicLiasuer-
'2.3 March 12 Targot date for ASLB ruling on motions for
'3 summary disposition of QA lasues and dead 14ns-for
/'plifi M a n:Ification of QA vitncesee by Int,ervonorn I (Intor-venor 6 to uso best efforts to identify
" f /'3D witne-esea-car-14er--than4eadLine) .
March 17 Deadline for concluding witness and non-witness depositions.
File written direct testimony on QA issues M Ib April 4 remaining after summary disposition.
- Apra.L 9 File Motiono to Strike profiled QA testimony.
9 April 15 Iloaring Commencca on QA Contention; first day satid22 asido to hear argument and rule on any Motions to Striko and other preliminary matters.
May 29 Hearing onds (approx.) .
Juna 30 All partien file Findings of Fact and Conclusions p),1 of Law simultaneouclV.
Jul r 11 All parties filo Reply Findings of Fact and Conclusiona of Law simultaneously.
Sep ; ember 11 Targot date for inouance of ASLD decision.
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Attachm:nt B-1 SCHEDULE
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g 1/10 December-20-1985- Iast day for filing and receipt of 1/10 interrogatories.
1/24 3-ay 10,- 1986- Deadline for filing answers to interrogatories 1/24 filed on 12/27; discovery ends except for depo-sitions.
1/27 . January 15 Deadline for filing motions for sumnry disposi- 1/15 tion on @ Contention (no sumary disposition on 82-05 issue) . -/ /g75, Ovte)
January 22 Report on 82-05 Corrective Action Program received by parties; and deadline for identification of $
witnesses by Applicant, and NRC Staff except for
//30 82-05 issue.
2/26 February 12 Answers to motions for sumnry disposition.
March 3 gg6 Written Staff-position-on-82-05 issue-received by
. parties-and deadline for identifying NRC Staff witnesses-on-said-issue.
3/28 March 12 Target date for ASLB ruling on motions for 3/17 sumary disposition of @ issues and Friline for idonei Nneinn-of-% witnesses- by-Intervenors (gth, 1/33 (Intervenors to use best efforts to identify vienonana anvlior rhnn dondline),
March 17 Deadline for concluding witness and non-witness depositions.
'4/18 April 4 File written direct testirony on @ issues 4 reaining after sumury disposition.
4/28 -April 9 File Motions to Strike prefiled $ testimony. 4/14 5/6 April 15 Hearing Comnences on @ Contention; first day set 4/22 aside to hear argument and rule on.any Motions to Strike and other preliminary matters.
May 29 Hearing ends (approx.)
June 30 All parties file Findings of Fact and Conclusions d, of Law simultaneously.
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Jul:r 11 All parties file Reply Findings of Fact and Conclusions of Isa simultaneously.
Sep ;mber 11 Target date for issuance of ASLB decision.
From: Communications Services Department Attachm:nt C Commonwealth Edison Company One First National Plaza Chicago, Illinois 60690
. John Hogan - 294-3000 FOR IMMEDIATE RELEASE:
January 9, 1986 EDISON PROPOSES BRAIDWOOD SPENDING LIMIT Commonwealth Edison has of fered to limit spending for Braidwood Station at $5.05 billion, except for any additional-increases caused by nuclear licensing delays or other regulatory delays beyond its control. If the proposal is adopted by the Illinois Commerce Commission (ICC), the future impact on customer rates would be fixed. Edison said it is confident that Braidwood can be completed for $5.05 billion, the amount budgeted by the company in November 1985.
Edison has spent approximately " i: billion on the generating station thus far. Of the 24 nuclear plants othe U.S. public utilities are constructing, only one is being built at less cost than Braidwood.
(Emphesis citino a historv of deliberate delav tactics by intervenors in the. !
cupplied) iuc lear licensino Drocess. Edison declined to accept responsibility for cost increases caused by such tactics. Attorneys for Business and Professional People for the Public Interest (BPI), who represent intervenors in proceedings before the Atomic Safety and Licensing Board ( ASLB), have been simultaneously urging'the ICC to cancel Braidwood. The ICC's decision will be based on the relative costs of completing or cancelling Braidwood, Edison noted. "BPI knows full well that delays in issuing an operating license will add to the cost of the facility, thus enhancing its position before the Commerce Commission," Braidwood Project Manager Mike Wdilace declared. '
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Recent studies conducted by Edison show that completing Braidwood is
/ still-in the best interests of customers. In 1980 and again in 1982, the ICC directed Edison to complete Braidwood without delay. Completion of the plant would result in savings of $2.7 billion over its lifetime, compared to cancellation.
Edison has also. informed the ICC that it will submit a proposal next month to place Byron Unit 2 and the two Braidwood units into the rate base in a manner that will minimize impact on customers.
- Byron 2 and Braidwood 1 are scheduled for servjce in May 1987, Braidwood 2 in September 1980.
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1/11/86 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
-In the Matter of: )
)
COMMONWEALTH EDISON COMPANY ) 00cket No. 50-456
) 50-457 (Braidwood Nuclear Power )
Station, Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that I have served copies of Intervenors' Motion to Revise Ilearing Schedule and Motion For Sanctions on each party listed on the attached Service List by having said copies placed in envelopes, properly addressed and postaged (first class), and deposited in the U.S. mail on this lith day of January, 1986; except that the Licensing Board, Mr. Joseph Gallo and Mr. Stuart Treby were served by Federal Express overnight delivery, and Mr. Miller, counsel for Edison, was served by personal delivery on January 13, 1986.
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- s *i BRAIDWOOD SERVICE LIST
. Herbert Grossman, Esq. Michael I. Miller, Esq.
Chairman and_ Administrative Judge Peter Thornton, Esq.
Atomic Safety and Licensing Board Isham, Lincoln & Beale
-U.S. Nuclear-Regulatory-Commission Three First National Plaza Washington D.C. 20555 Chicago, Illinois 60602 Richard F. Cole _
Docketing & Service Section' Administrative Judge Office of the Secretary
' Atomic Safety and Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington D.C. 20555 . Washington D.C. 20555 A. Dixon.Callihan C. Allen Bock, Esq.
' Administrative Judge P.O. Box 342 102 Oak' Lane Urbana, Illinois 61801 Oak Ridge, Tennessee 37830 Bridget Little Rorem Gregory Berry, Esg. 117 North Linden Street NRC Staff Counsel Essex, Illinois 60935
.Ut.S. Nuclear Regulatory Commission 7335 Old-Georgetown Road Thomas J. Gordon, Esq.
Bethesda, Maryland 20014 Waller, Evans & Gordon 2503 South Neil Joseph Gallo, Eso. Champaign, Illinois 61820 Isham, Lincoln &'Beale 1120 Connecticut Avenue N.W. Lorraine Creek Suite 840 Route 1, Box 182 Washington D.C. 20036 Manteno, Illinois 63950 Region III Office of Inspection &
Enforcement U.S. Nuclear Regulatory Commission 799 Roosevelt Road Glen Ellyn, Illinois 60137
-Atomic Safety and Licensing
' Board Panel U.S. Nuclear Regulatory Commission Washington D.C. 20555
' Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington D.C. 20555 5