ML20138E070
| ML20138E070 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 12/06/1985 |
| From: | Mizuno G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#485-466 OL, OL-2, NUDOCS 8512130328 | |
| Download: ML20138E070 (14) | |
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DECEMBER 6, 1985 Lhb[ED, UNITED STATES OF AMERICA NUCLEAR REGULATORY COPPISSION "83 ;
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ggg l2 *0/29
- r. . . _
In the Matter of ) Docket Nos. 50-445
) 50-446 TEXAS UTILITIES ELECTRIC )
COMPANY, et _a_l_.
) and (Comanche Peak Steam Electric ) 50-445/2 Station, Units 1 and 2) ) 50-446/2 NRC STAFF COMMENTS ON THE LICENSING BOARDS' NOVEMBER 6, 1985 MEMORANDUM I. INTRODUCTION The Licensing Boards have fointly issued a " Memorandum (Fair Warning of Citations to Other Dockets)" (November 6,1985) (" Fair Warning Memorandum") in response to Applicants' concernI I regarding the procedure adopted by the 6 card permitting parties in one docket to cite relevant material in the other docket. - In their Fair Warning Memorandum, the Boards state that they: I now intend to require the parties to place each other on notice by providing a timely citation of ' I relevant material that is already in the other docket. Similarly, when relevant technical information is expected to be filed in the other I docket, an affected party should be informed of the '
expected relevance.
-1/ " Applicants' Petition for Directed Cert!4ce ion of Licensing Board Order of October 31, 1985" (November 4, 97 (" Applicants' l Petition"), i
~2/ " Memorandum and Order (Procedural Rulings; Board Concern About QA l for Design)" (October 31, 1985) (" Boards' October 31,1985 Order").
e51213032s 851206 DR ADOCK 0500 5 Q) e.
, Fair Warning Memorandum, p. 1. The Licensing Boards provided an oppor-tunity for the parties to file their coments on the Fair Warning Memo-randum by December 7,1985. Id., p. 2. The NRC Staff (" Staff") herein provides its views on the Fair Warning Memorandum. 3_/
II. RACKGROUND As a result of continuing discovery disputes between the Applicants and Intervenor CASE, the Licensing Boards requested the parties to respond to the following propositions:
This is a single case:
(a) in which CASE's representatives should make a good faith effort to coordinate their discovery activities; (b) in which Applicants should provide more speci-fic responses to discovery, identifying poor responses whenever they believe that they have been subject to a redundant request; and (c) in which objectiors as to relevance may not be restricted to relevance to a particular docket.
- 3/ This pleadino sets forth the Staff's views on the Fair Warning Meno-randum in light of the present posture of this case in which two licensing boards in two dockets have been established. The Staff expresses no views in this pleading on the questions raised by the Appeal Board in its December 4,1985 Order. Therefore, the Staff's views in this pleading do not necessarily reflect the position that the Staff may take in its response to the Appeal Board's questions.
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Follcwing the filing of responses by the parties, S/ the Licensing Boards issued the October 31, 1985 Order holding that " discovery requests in one docket shall be deemed to be filed in the other dockets as well."
According to the Licensing Boards, this ruling would preclude the need for the Licensing Boards to make " narrow procedural rulings whose only consequer.ce would be reffling in the other docket." Boards' Order, p. 2.
The Licensing Boards also noted that " technical questions in docket 1 may bear on issues in docket 2," such that a party may wish to rely upon evidence developed in the other docket. I_d . Thus, the Licensing Boards ruled that they would " consider evidence relevant in one docket to be available for citation in the other docket, providing it is relevant to the issues in the second docket." I_d., pp. 2-3. The Licensing Boards indicated that they did not see any fair notice problem with their ruling, since the " extent to which a party in one docket relies on evidence in the other docket will be revealed when the party files proposed findings of fact. . . . Lawyers in both dockets must, therefore, be alert to implications for the other docket." Id., p. 3.
On November 4,1985, Applicants filed a " Petition for Directed Certification of the October 31, 1985 Licensing Boards ' Order." Sub-sequently, on November 6,1985, the Boards issued their Fair Warning 4/
- " Applicants' Brief in Response to Conference Call of October 15, 1985" (October 23,1984); "NRC Staff Response to Licensing Board Questions Raised During October 15, 1985 Conference Call" (October 29, 1985); " CASE's Response to Questions Raised by Board During Conference Call on October 15, 1985" (October 28,1985).
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Memorandun. 5/ In addition, at the prehearing conference held in this proceeding on November 12, 1985, the Boards provided some preliminary thoughts on the procedure envisioned by them to implement the Fair Warning Memorandum. Tr. 24,333.
III. DISCUSSION A. Staff Views on the Notice Procedures in the Fair Warnina Memorandum The Fair Warning Memorandum indicates that " notice" will be necessary in two situations: first, where a party intends in one docket to rely upon evidence admitted in the other, that party is required to give " timely citation of relevant material that is already in the other docket." Fair Warning Memorandum, p. 1 (emphasis added). Secondly, and by contrast, if a party intends to offer " relevant technical infonnation"
-5/ The Applicants' " Petition for Directed Certification of the Octo-ber 31, 1985 Licensing Boards' Order" is currently pending before the Appeal BoarJ. Following the issuance of the Fair Warning Memorandum, the Appeal Board directed Applicar.ts to file a memo-randum indicating the effect, if any, of the Fair Warning Memorandum to Applicants' Petition. On November 14, 1985, Applicants filed
" Applicants' Memorandum in Response to Appeal Board Order of November 8,1985" (" Applicants' Memorandum"), in which Applicants acknowledged that the Fair Warning Memorandum now requires " timely citation" of the evidence from another docket that a party is relying upon, rather than waiting until the filing of proposed findings of fact. Applicants' Memorandum, p. 2. However, Appli-cants pointed out that the term, " timely" is not defined; the right to respond, if any, is " unarticulated"; and that the timing as to the Licensing Boards' rulings on admissibility is not specified. Id.
Apart from these concerns, Applicants argued that the Fair Warning Memorandum "does nothing to address the fundamental jurisdictional question raised by the petition, nor does it serve . . . to obviate the problems that Applicants believe will lead to an unnecessarily confused and complex trial and appellate record." Applicants' Memorandum, pp. 2-3.
in one docket in the future, that party is required to inform the
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"affected party" of the " expected relevance." Id. It is the Staff's assessment that the " notice" procedures contemplated by Licensing Boards do not, and cannot, ameliorate the concern with the different jurisdic-tions of the two 1 Licensing Boards which was engendered by the Licensing Boards' ruling pennitting evidence in one docket to be cited in the other 5/
(" cross-citation"). Apart from this concern, the Staff believes that the notice procedures, themselves, place an unreasonable burden upon the party intending to offer evidence in the future (viz, the second situation discussed above), and that the notice procedures must be clarified on a number of points in order for the parties to have a clear and uniform understanding of their obligations under the Licensing Boards' notice procedures.
AstheStaffhaspreviouslydiscussed,1 although this is a " single case", two Licensing Boards have been established in two separate dockets to consider different aspects of Contention 5, the sole contention in this proceeding. The first (" Docket 1") Licensing Board was empaneled to
" rule on petitions for leave to intervene and/or requests for hearings and to preside over the proceeding in the event that a hearing is ordered."
44 Fed. Reg. 15815 (March 15, 1979). The second (" Docket 2") Licensing
{/ See Boards' October 31, 1985 Order, p. 2.
7/ See, e.g., "NRC Staff's Response to Licensing Board Questions Raised Diiring October 15, 1985 Conference Call" (October 29,1985);"NRC !
Staff Answer to Applicants' Petition for Directed Certification of
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Licensing Board Order of October 31,1985"(December 2,1985) :
(" Staff Answer to Petition"). l
Board was empaneled "to preside over the proceeding on all allegations of intimidation and harassment." 49 Fed. Reg. 13613 (April 5, 1984). The parties have differing views regarding the scope of issues before the Docket 2 Licensing Board, the scope of issue before the Docket 1 Licensing Board, and the relationship of the Docket 2 Licensing Board to the Docket 1 Licensing Board with respect to the overall licensing decision to be made in this proceeding. This divergence of opinion is exacerbated by the Licensing Boards' ruling permitting cross-citation.
The Licensing Boards' cross-citation procedure draws into question and possibly destroys the distinction between the Docket 2 Licensing Board and the Docket 1 Licensing Board. Which Board, for example, is to rule on ob,iections to the admission of evidence offered in one docket which a party may subsequently cite in the other? Which Board is to decide questions of the credibility or competence of a witness offered in one proceeding whose testimony a party may seek to cite in the other?
Which Board is charged with making findings based on evidence adduced in one docket which is subsequently cited in the other; for instance, drawing on the Boards' example, would the Docket 2 Board make a finding on the technical aspects of coatings as well as on the associated haras-sment and intimidation issues, a finding that must also be made in Docket 17 Apart from the fundamental concerns raised above, the Boards' requirement that a party intending to submit evidence inform the "affected parties" of its expected relevance misplaces the fundamental burden that each party properly bears to establish the relevance of material sought to be introduced into evidence by that party. The procedure seemingly anticipated by the Boards would require each party
offering evidence to guess what each other party's theory of the case is and to speculate as to whether that evidence is " relevant" to that party's theory, in order to determine whether " notice" should be given.
In light of the obviously divergent views of the parties as to tilh scope of the issues which are before each of the two Licensing Boards in this proceeding, and, consecuently, of what evidence might be " relevant", the burden resulting from the Fair Warning Memorandum may well prove to be nigh-impossible to sustain. The situation is further complicated by the uncertainty of the order in which Docket 1 issues and Docket 2 issues (whatever they are ultimately determined to include) are to be litigated.
In addition to the general concerns discussed above, the Staff has identified the following items which in any event must be further clarified and defined:
the form of the notice required, i.e. , whether a formal written filing will be required, the time at which notice must be given, the definition of " relevant technical infor-mation" ds used in the Fair Warning Memorandum.
the specificity required in identifying the evidence to be relied upon by a party, and the information intended to be introduced by a party.
whether the relevance of the material sought to be relied upon by a party must be discussed in the notice, whether parties will have an opportunity to file objections to other parties' cross-citation, and if so, the nature, form and timing of such objections, which Licensing Board should be responsible for resolving disputes over cross-citation,
and the nature and timing of the applicable Licensing Board's decision in this regard.
These points of issue must be clarified and defined in order for the parties to have a uniform understanding of their obligations under the Fair Warning Memorandum.
Moreover, the Licensing Boards' tuggestion that the filing of prehearing proposed findings of fact by the parties, as was previously done in Docket 2, see, Tr. 24,333 (Ncvember 12, 1985 prehearing conference), would not, in the Staff's judgment, alleviate its concerns with the " notice" requirement contemplated by the Fair Warning Menorandum. Previously in Docket 2, the parties filed proposed findings of fact one week before the start of formal hearings. But, the circum-stances surrounding the parties' prior agreement to file prehearing proposed findings of fact is markedly different than those now existing.
In mid-1984, when the parties agreed to file prehearing proposed 2
finding of fact in Docket 2, the matters to be resolved in litigation were relatively discrete and narrow, being limited to spccific allega-tions of harassment and intimidation to be identified by CASE. 8/ This i is not the current situation in this proceeding, where there is a marked difference of opinion among the parties with regard to the scope of 8/
- CASE's identification of the specific incidents that it intended to litigate, while not conforming to the Staff's understanding of what was required under the procedure agreed to by the parties, is contained in a June 27, 1984 letter from Billie Garde to Leonard Belter, counsel for Applicants.
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issues before the Docket 2 Licensing Board versus those before the Docket 1LicensingBoard.El Second, the hearing in Docket 2 for which the prehearing proposed findings of fact were filed, was not a conventional hearing at which each of the parties presented their affirmative evidence. In fact, the development of the record in that regard was to have occurred at the
" evidentiary depositions" which were conducted in July 1984. El Prehearing findings of fact were ordered by the Docket 2 Licensing Board essentially to allow the parties to prepare and present rebuttal testimony at hear-ing, I1/ and was not intended to ameliorate any adverse consequences stemming from cross-citation; cross-citation was not even contemplated at that time. In contrast, the Licensing Boards' proposal to use prehearing findings of fact at this juncture of the proceeding is intended to solve a different problem -- the " notice" concerns of the Applicants and Staff that stem from the Licensing Boards' cross-citation procedure.
-9/ See, e.g., "NRC Staff Answer to Applicants' Petition for Directed Certification of Licensing Board Order of October 31,1985"(Decem-ber 2,1985), pp.12-19; " Applicants' (1) Response to CASE's 9/4/85 Request for Production of Documents and (2) Motion for Protective Order" (October 9,1985), pp. 8-10; " CASE's Proposed Case Management Plan (Docket 2)" (May 9, 1985), attaching an April 17, 1985 letter from CASE to the Docket 2 Licensing Board.
-10/ The exceptions in this respect were the Applicants' affirmative evidence on Applicants' management's comitment to an effective QA/QC program, and the Staff's direct case.
-11/ The Docket 2 hearings were limited to Board examination of certain witnesses, cross-examination of witnesses by parties that could not have been done at the evidentiary depositions due to the time of presentation of CASE's affimative evidence, presentation of rebuttal testimony, and presentation of the Staff's direct evidence.
B. The Staff's Alternative Proposal for Litigation of Docket 2 In light of the substantial concerns with the Licensing Boards'
" notice" procedures discussed above, the Staff submits that the better course of action in the present circumstances is to complete litigation in Docket 2, and for the Docket 2 Licensing Board to decide whether or not the specific CASE allegations of harassment and intimidation occurred, and whether or not CASE's assertion that such incidents were widespread at the Comanche Peak site is substantiated by the record evidence. The findings of the Docket 2 Licensing Board would then be considered by the Docket 1 Licensing Board in resolving Contention 5.
Thus, the Docket 2 Board should conclude its examination of matters related to the Lipinsky report, and receive the Staff's direct evidence on intimidation. E! At the close of the Staff's direct case and any necessary cross-examination and rebuttal evidence, the Docket 2 Licensing Board should close the record on Docket 2. Proposed findings of fact and conclusions of law for Docket 2 should be submitted in accordance with the provisions of 10 C.F.R. Q 2.754. The Docket 2 Licensing Board would then issue its findings on each of CASE's allegations of harassment and intimidation, as well as CASE's assertion that intimidation was widespread at Comanche Peak.
-12/ The Staff anticipates that a period of time prior to the resumption of the Docket 2 hearings would be necessary to, inter alfa conduct any necessary discovery, and to allow for preparation of the Staff's prefiled written testimony.
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Thus, under the Staff's proposal, there would be no need for the parties in Docket 2 to cross-cite to Docket 1 evidence in their Docket 2 proposed findings, and the distinction between the roles of the Dockets 1 and 2 Licensing Boards would be preserved. The parties have litigated the matters in Docket 2 as if the evidentiary record would be self-contained, and there is no apparent reason why this understanding should be changed at this time. E With regard to infonnation not in the Docket 2 record which a party contends is relevant to intimidation and harassment, a party who wishes to utilize that information in Docket 2 should proffer it for admission into Docket 2 record, so that the other parties would have the opportunity to make meaningful objections to its admission, and if necessary, conduct appropriate cross-examination and present rebuttal evidence.
The Staff's proposal also minimizes the need for cross-citation of
- Docket 2 evidence in the Docket I record, again preserving the distinc-tion between the Docket 1 Licensing Board and the Docket 2 Licensing
. Board. In their arguments on Contention 5 before the Docket I Licensing Board the parties need only cite to the Docket 2 Licensing Board's findings when discussing the subject of harassment and intimidation.
-13/ In CASE's " Opposition to Applicants' Petition for Directed Certifi-cation of Licensing Board Order of October 31,1985"(November 26, 1985) (" CASE's Opposition"), CASE listed three legal theories whereby evidence admitted in Docket I could subsequently be introduced into evidence in Docket 2, or vice versa. See CASE's Opposition, p. 4. In the Staff's view, these are precisely the ways that a party in one docket seeking to use evidence developed in the other docket should attempt to achieve that goal, rather than rely upon " cross-citation".
If a party believes that evidence in Docket 2 underlying the Docket 2 Licensing Board's findings is independently relevant to the technical issues in Docket 1, it should then proffer the evidence in Docket I so that the other parties have the opportunity to present their objections to admission, and if necessary, conduct cross-examination and present rebuttal evidence limited solely to the technical content of the proffered evidence. Alternatively, the party seeking to rely on such evidence may attempt to reach a stipulation with the other parties on its admission into the Docket I record.
In conclusion, it is the Staff's view that the Staff's proposal discussed above will better serve to conclude the litigation in both Dockets 1 and 2 in a manner that is fair and expeditious. '
IV. CONCLUSION The Board should adopt the Staff's proposed procedure for litigation I
discussed above.
Respectfully submitted, 9,V "
G ar' S Mizuno
.h V Counsel for NRC Staff Dated at Bethesda, Maryland this 6th day of December,1985 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COP 911SSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-445
) 50-446 TEXAS UTILITIES ELECTRIC )
COMPANY, et _al.
_ ) and (Comanche Peak Steam Electric ) 50-445/2 Station, Units 1 and 2) ) 50-446/2 CERTIFICATE OF SERVICE I hdreby certify that copies of "NRC STAFF COMMENTS ON THE LICENSING BOARD'S NOVEMBER 6, 1985 MEMORANDUM" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 6th day of December, 1985:
Peter B. Bloch, Esq., Chairman
- Mrs. Juanita Ellis Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Pelk Street U.S. Nuclear Regulatory Commission Dallas, TX 75224 Washington, DC 20555 -
Renea Hicks Esq.
Dr. Kenneth A. McCollom Assistant Attorney General Administrative Judge Environmental Protection Division Dean, Division of Engineering P.O. Box 12548 Capital Station Architecture and Technology Austin, TX 78711 Oklahoma State University Stillwater, OK, 74078 Nicholas S. Reynolds, Esq.
William A. Horin, Esq.
Elizabeth B. Johnson Bishop, Liberman, Cook, Administrative Judge Purcell & Reynolds Oak Ridge National Laboratory 1200 17th Street, N.W.
P.O. Box X, Building 3500 Washington, DC 20036 Oak Ridge, TN 37830 Herbert Grossman, Alternate ChairTnan*
Dr. Walter H. Jordan Administrative Judge Administrative Judge Atomic Safety and Licensing Board 881 W. Outer Drive U.S. Nuclear Regulatory Commission Oak Ridge, TN 37830 Washington, DC 20555
6 Billie Pirner Garde Mr. W. G. Counsil Citizens Clinic Director Executive Vice President Government Accountability Project Texas Utilities Generating Company 1901 Que Street, N.W. 400 North Olive Street, L.B. 81 Washington,-DC 20009 Dallas, TX 75201 Ellen Ginsberg, Esq.* William L. Brown, Esq.
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comission 611 Ryan Plaza Drive, Suite 1000 Washingten, DC 20555 Arlington, TX 76011 Robert A. Wooldridge, Esq. Lanny Alan Sinkin Worsham, Forsythe, Samples 3022 Porter Street, N.W. , #304
& Wooldridge Washington, DC 20008 2001 Bryan Tower, Suite 2500 Dallas, TX 75201 James T. McGaughy Southern Engineering Co. of Georgia Mr. James E. Cummins 1800 Peachtree Street, N.W.
Resident Inspector / Comanche Peak Atlanta, GA 30367-8301 Steam Electric Station c/o U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Board P.O. Box 38 Panel
- Glen Rose, TX 76043 U.S. Nuclear Regulatory Commission Washington, DC 20555 William F. Burchette, Esq.
Mark D. Nozette, Esq. Atomic Safety and Licensing Appeal Heron, Burchette, Ruckert Board Panel *
& Rothwell U.S. Nuclear Regulatory Comission Suite 7C0 Washington, DC 20555 1025 Thomas Jefferson Street, N.W.
Washington, DC 20007 Docketing and Service Section*
Office of the Secretary Robert D. Martin
- U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 611 Ryan Plaza Drive, Suite 1000 Arlington, TX 76011 Robert A. Jablon, Esq.
Spiegel & McDiarmid Anthony.Z. Roisman, Esq. 1350 New York Avenue, N.W.
Trial Lawyers for Public Justice Washington, DC 20005-4798 2000 P Street, N.W., Suite 611 Washington, DC 20036 Joseph Gallo, Esq.
Isham, Lincoln & Beale Suite 840, 1120 Connecticut Avenue, N.W.
Washington, DC 20036 9% .
NN-Gear / S no U Coudsel(MiNRC Staff I
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