ML20137K967

Response Opposing Intervenor 860111 Motion for Sanctions on Applicant & Supporting Applicant 860109 & Intervenor 860111 Motions to Revise Hearing Schedule.Proposed Schedule & Certificate of Svc Encl

ML20137K967
Person / Time
Site:	Braidwood
Issue date:	01/21/1986
From:	Treby S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#186-813 OL, NUDOCS 8601240300
Download: ML20137K967 (12)

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w nm.c:c, January 21","1986" UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '86 J"l 23 All 25 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD jr

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,e In the Matter of )

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COMPONWEALTH EDISON COMPANY ) Docket Nos. 50-456

) 50-457 4 (Braidwood Station, Units 1 and 2 )

NRC STAFF RESPONSE TO APPLICANT'S AND INTERVENORS' MOTIONS TO REVISE HEARING SCHEDULE AND INTERVENORS' MOTION FOR SANCTIONS I. INTRODUCTION On January 9,1986, Comonwealth Edison Company (" Applicant") moved the Atcmic Safety and Licensing Board (" Board") to enter an order revising the hearing schedule in this proceeding from the schedule attached to the Board's Order dated October 24, 1985. " Motion To Revise Hearing Schedule" (January 9, 1986) [ hereinafter " Applicant's Motion"]. Applicant's schedule provides, inter alia, for written direct testimony on QA issues remaining -

after summary disposition to be filed on March 18, 1986 with the hearing commencing on April 1, 1986. Bridget Little Rorem, et al ("Intervenors")

also have moved to revise the existing hearing schedule so as to provide, inter alia, for written direct testimony to be filed on May 2,1986 with the hearing commencing on May 20, 1986. In addition, Intervenors move for the imposition of sanctions upon Applicant for alleged " flagrant breach of obligations imposed upon it by agreement and by law." Inter-venors' Motion To Revise Hearing Schedule And Motion For Sanctions" (January 11, 1986) [ hereinafter "Intervenors' Motion").

8601240300 860121 PDR ADOCK 05000456 G PDR SQ}

. The NRC Staff (" Staff") has reviewed each of the proposed schedules.

After giving due consideration to the time necessary for the Staff to complete its inspection activity regarding the numerous matters contained in the admitted QA contention, the Staff has concluded it can support neither proposed schedule. Rather, it proposes the Board adopt the schedule set out in Attachment A, infra, which provides, inter alia, for the hearing to commence April 15, 1986. Further, for the reasons set forth below, the Staff does not support Intervenors' motion for the imposition of sanctions upon Applicant.

II. BACKGROUND In the past, the parties have been able to discuss among themselves scheduling matters leading to a hearing on the admitted QA contention and submit joint motions regarding schedule for approval by the Board.

See " Joint Motion to Revise Hearing Schedule" (September 3,1985); " Joint Motion To Revise Hearing Schedule" (October 18, 1985) [ hereinafter

" October 18, 1985 Joint Motion"). A principle underlying factor in developing the schedules was that the corrective action programs relevant to the cuality assurance contention be completed in sufficient time to permit an adequate opportunity for discovery. October 18, 1985 Joint Motion at 1. The programs are the Material Traceability Verification Program ("MTV"), the program to verify the installation and installation inspection of safety-related equipment (known as the 82-05 issue), and the program to verify the integrity of certain corroded pipe. The results of the MTV and corroded pipe programs became available to the Board and l

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, . other parties on November 15, 1985 and January 10, 1986, respectively. A written program description and partial results of the 82-05 program was made available on January 13, 1986.

In November 1985 it became clear that not all of the above described reports of corrective actions programs would be available to permit an oppor,tunity for discovery by the December 2,1985 deadline set out in the hearing schedule proposed in October 18, 1985 Joint Motion and adopted by the Board in its Order (Revising Hearing Schedule) dated October 23, 1985. Further, as a result of Applicant's revision of its fuel load date to September 1986, it appears that the schedule for pretrial activities could be extended without impacting the ability of the Board to reach a licensing decision in a time frame consistent with the new projected fuel load date. On November 18, 1985, Applicant submitted to the other parties a proposed revision of the schedule to serve as the basis for discussion. In early December 1985, counsel for the parties had a telephone conference to discuss the schedule. Attach-ment B to Intervenors' Motion accurately reflects the positions of the Staff and Applicant at the end of the telephone conference. While Inter-venors generally favored the Staff's proposal, there were aspects of that proposal with which Intervenors disagreed (e.g., January 30, 1986 deadline for identification of all 0A witnesses, including Intervenors).

While it is true that during the discussion there had been some narrowing of disagreements regarding the schedule among the parties, no agreement er stipulation as to the schedule was reached. It was the Staff's view that a subsequent effort would be made to reach agreement as to a

. schedule or that the parties would determine they could not agree and submit their respective proposals regarding schedule to the Board for its determination.

Immediately thereafter the parties learned of the Comission's December 5, 1985 Order requesting responses to seven questions by December 19, 1985. On December 20, 1985 Applicant filed its motion for sumary disposition of fourteen subparts of the QA contention.

The Staff and Intervenors have been granted until January 31, 1986 to respond to the Motions for summary disposition. Order (Granting Exten-sion) (January 6,1986) and Order (Granting Extension to Intervenors)

(January 7, 1986). While the parties agreed to cancel nine discovery depositions in order to meet the Commission filing deadline of December 19, 1985, other discovery activities have continued. For example, the parties attended discovery depositions of Staff personnel set by Applicant on December 18, 1985 and January 14, 1986 and by Intervenors on January 13, 1986. Applicant has served on Intervenors a Second Set of Quality Assurance Interrogatories and Requests to Produce on January 9,1986 and has noticed one deposition for January 20, four depositions for January 21, two depositions for January 22 and a deposition for January 27, 1986.

III. DISCUSSION A. The Board Should Revise The Hearing Schedule And Adopt The Staff's Proposed Schedule A number of dates established by the current hearing schedule, which was adopted by the Board's Order dated October 24, 1985, are no longer applicable because of the passage of time. Also, as discussed i 1

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, . i i above, a principle factor in developing a hearing schedule has been to afford an opportunity for discovery on the Applicant's corrective action programs. The reports on corroded pipe and on 82-05 were provided to the parties on January 10,10% and January 13, 1986, respectively, after the deadline for discovery contained in the current hearing schedule. Accordingly, the Staff believes provision for time for discovery on those documents is appropriate and adopts Intervenors' proposal regarding dates for filing and responding to interrogatories.

. The Staff disagrees with Intervenors proposal to wait until April 10, 1986, just five days before Intervenors proposed the conclu-sion of depositions, to identify Intervenors' witnesses. That schedule would not provide adequate time for meaningful discovery of such witnesses, if any. It has been over six months since admission of Inter-ver. ors' QA contention and Intervenors have not identified a single

witness which they intend to proffer. In order for all parties to adeouately prepare for hearing, the Staff submits that all parties should identify their proposed witnesses in a timely manner so that meaningful discovery of such witnesses and preparation for trial can occur. Accordingly, the Staff has included such a requirement in its proposed schedule.

The Staff believes a narrowing of issues for litigation and disposi-tion of facts upon which there is no dispute among the parties will result in efficient use of hearing time. Accordingly, the Staff is making provision in its proposed schedule for the seeking of admissions.

The Staff believes this will be a more productive means of narrowing

the issues than extending the deadline for summary disposition motions proposed by Intervenors.

Finally, the Staff proposes April 15, 1986 as the date for commencing the hearing, a date in between those proposed by Applicant at one extreme and the Intervenors at the other. The Applicant's date of March 18, 1986 for filing written testimony is not realistic. The Staff has ongoing inspections on many of the tratters raised by the QA contention and, in fact, has not issued inspectiun reports on approximately one half the matters. The Staff anticipates that will be able to complete its work in time to file testimony during the last week in March. This could permit the hearina to start as early as April 15, 1986. However, it is not at this time clear that all Staff technical review work will be fully completed by that date; thus there may be a need for supplemental testimony or for scheduling certain issues at adjourned hearing dates.

For the above stated reasons, the Staff urges the Board to revise the current schedule and to adopt the Staff's proposed schedule. The Staff has not proposed any schedule for post hearing activities at this time because it believes such schedule may well be influenced by circum-stances which exist at the end of the hearing.

B. The Board Should Not Impose Sanctions On Applicant Intervenors requests that the Board impose sanctions upon Applicant for "its conduct in breachir.g the scheduling agreement from established custcms of courtesy and practice without prior notice to opposing l

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a counsel, and for enoaging in sharp and vexatious litigation tactics to the unfair prejudice of Intervenors and the NRC Staff." Intervenors' Motion at 2. The Staff shall address each of these charges in turn.

First, Intervenors assert Applicant breached the scheduling agree-ment entered into by the parties. While the current Board approved hearing schedule provides for motions for summary disposition to be filed December 2,1985, it is clear from Intervenors' statement in their filing that "the parties understood that a revised schedule would be agreed upon and submitted for Board approval" (Intervenors' Motion at 2) that Intervenors are referrirn to breach of agreement based on the Appli-cant's Fovember 18, 1985 proposed revision. As discussed in the back-ground section, supra, while there had been discussions of that proposed revision and a narrowing of the areas of disagreement, no final agree-rent or stipulation was entered into by the parties. Accordingly, there is no merit to this first charge.

Next, Intervenors assert that Applicant departed from established

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customs of courtesy at practice without prior notice to opposing counsel.

It is unclear from the filing what is meant by this charge since it is not further elaborated upon. However, it does appear to the Staff that as a matter of courtesy, Applicant's counsel could have advised counsel for the other parties that he was filing motions for summary disposition on December 20 1985. White no final agreement had been reached by the parties as to a revised schedule, the only date discussed for filing motions for summary disposition was January 15, 1986. Also, given the season of the year, one could anticipate counsel not being at their

offices to be aware of the filing and it would have been courtesy to alert them of the filing. While it would have been an act of courtesy, there is no obligation on a party to alert other parties of anticipated filings. Since there was.no obligation on Applicant's counsel to take

. any action, there is no basis for imposing any sanctions for failure to take the action.

Finally, Intervenors assert that Applicant has engaged in sharp and vexations litigation tactics to the unfair prejudice of the other parties.

Intervenors' filino catalogs various discovery activities being pursued by Applicant at this time. Intervenors allege that by Applicant's action in the unscheduled filing 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 Inter-venors' counsel, Applicant has deliberately disrupted Intervenors' discovery and hearing preparation plans and activities. Intervencrs' Motion at 5-6. There is no doubt that Applicant's activities has placed numerous obligations upon the other parties. However, as the Commission has noted: " Fairness to all involved in NRC's adjudicatory procedures recuires that every participant fulfill the obligations imposed by and in accordance with applicable law and Commission regulations. ...

[T]he 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." Statement Of Policy On Conduct Of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).

Applicant, as well as other parties, are entitled to pursue the pretrial

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. i i activities of which Intervenors are complaining. Intervenors have offered no showing that the Applicant has set out to deliberately disrupt their hearing preparation plans and activities.

IV. CONCLUSION For the reasons discussed above, the revised hearing schedule i

proposed by the Staff (Attachment A) should be adopted by the Board and Intervenors' motion for imposition of sanctions upon Applicant should be denied.

Respectfully submitted, O\M1AM, Stuart A. Treby Assistant Chief Hearing Counsel 4 Dated at Pethesda, Maryland this 21st day of January,1986 d

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4 ATTACHMENT A l

4 NRC STAFF'S PROPOSED SCHEDULE January 24, 1986* Last day for fi ing of interrogatories Janua ry 31, 198.6 Answer to Motions for Summary Disposition January 31, 1986* Deadline for identification of witnesses by all l parties February 6, 1986* Last day for filing requests for admissions February 7,1986* Deadline for filing answers to interrogatories filed on 1/24; discovery ends except for depositions i

February 21, 1986 Deadline for concluding depositions Deadline for responding to admissions Target date for ASLB ruling on motions for

, summary disposition March 18, 1986* Applicants file written direct testimony on QA

, issues remaining after summary disposition March 26, 1986* Staff and Intervenor file written direct testimony i

on QA issues remaining after summary disposition April 2, 1986* File motions to Strike prefiled QA testimony April 9, 1986* File Desponses to any Motions to Strike April 15, 1986 Hearing commences on QA Contention Receipt dates, i.e., in the hands of the Board and parties shall be the next day.

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op UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '86 JAN 23 All :45 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD YhkMT!rd5"sNil In the Matter of )

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COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-456 50-457 (Braidwcod Stat. ion, Units I and 2 1 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPLICANT'S AND INTERVENORS' MOTIONS TO REVISE HEARING SCHEDULE AND INTERVENORS' MOTION FOR SANCTIONS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, deposit in the Nuclear Regulatory Commission's internal mail system (*),

or by express mail or overnight delivery (**) this 21st day of January, 1986:

Herbert Grossman, Esq., Chairman

• Commonwealth Edison Company Administrative Judge ATTN: Cordell Reed Atomic Safety and Licensing Board Assistant Vice President U.S. Nuclear Regulatory Commission P.O. Box 767 Washington, DC 20555 Chicago, IL 60690 Dr. A. Dixon Callihan ** Region III Administrative Judge U.S. Nuclear Regulatory Commission 102 Oak Lane Office of Inspection & Enforcement Oak Ridge, TN 37830 799 Roosevelt Road Glen Ellyn, IL 60137 Dr. Richard F. Cole Joseph Gallo, Esq.

Administrative Judge Isham, Lincoln & Beale Atomic Safety and Licensing Board Suite 840 U.S. Nuclear Regulatory Commission 1120 Connecticut Avenue, N.W.

Washington, DC 20555 Washington, DC 20036 Michael I. Miller, Esq. ** Robert Guild, Esq. **

Rebecca J. Lauer, Esq. 109 North Dearborn Street Isham, Lincoln & Beale Suite 1300 Three First National Plaza Chicago, Il 60602 Suite 5200 Chicago, IL 60602

, Douglass W. Cassel, Jr., Esq. Atomic Safety and Licensing Board Timothy Wright, Esq. Panel

• 109 North Dearborn Street U.S. Nuclear Regulatory Commission Suite 1300 Washington, DC 20555 Chicago, IL 60602 Atomic Safety and Licensing Appeal Erie Jones, Director Board Panel

• Illinois Emergency Services U.S. Nuclear Regulatory Commission and Disaster Agency Washington, DC 20555 110 East Adams Springfield, IL. 62705 Docketing and Service Section*

Office of the Secretary Lorraine Creek U.S. Nuclear Regulatory Commission Route 1, Box 182 Washington, DC 20555 Manteno, IL 60950 Ms. Bridget Little Rorem H. Joseph Flynn, Esq. 117 North Linden Street Associate General Counsel Essex, IL 60935 FEMA 500 C Street, S.W., Suite 480 George Edgar, Esq.

Washington, DC 20740 Newman, Holtzinger 1615 L. Street, N.W.

Suite 1000 Washington, DC 20036 7 MD $N Janice E. Moore Counsel for NRC Staff

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