ML20198T115
| ML20198T115 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 06/09/1986 |
| From: | Reynolds N BISHOP, COOK, PURCELL & REYNOLDS, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#286-493 CPA, NUDOCS 8606110319 | |
| Download: ML20198T115 (56) | |
Text
WTED CORHESPUNg i.
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J June 9, 198
."g UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'O BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BRD
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N x 's In the Matter of
)
)
TEXAS UTILITIES ELECTRIC
)
)
Docket No. 50-445-CPA
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(Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
)
APPLICANTS' MOTION FOR STAY OF DISCOVERY PENDING RESOLUTION OF APPEAL Applicants herein move the Appeal Board to issue an order
- 1986, staying an order issued by the Licensing Board on June 6, setting a discovery schedule and directing expedited responses A copy of that by Applicants to certain discovery requests.
order is attached hereto and marked "A".
The reasons for this motion, including the reasons why this relief could not be sought in the initial instance from the Licensing Board, are set forth below:
BACKGROUND 1.
On May 2, 1986 the Licensing Board herein issued a Special Prehearing conference Order, attached hereto and Nhrked 8606110319 860610 5
ADOCK 00000 PDR 3 S03 4
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( "B", admitting and granting a hearing upon a single contention in the above entitled matter.
2.
On May 12, 1986, Applicants and the Staff appealed the adraission of this single contention to this Appeal Board under 10 C.F.R. 52.714a.
These appeals are now fully briefed and 1986.
oral argument thereon has been scheduled for June 18, 3.
In the Memorandum portion of the Prehearing Conference -
Memorandum and Order of May 2, 1986 (Exh. B), the Licensing Board stated:
"VII.
Discovery Plan Within 14 days of service of this Memorandum and Order, the intervenors shall file a discovery plan, setting forth the schedule for the filing and answering of interrogatories and follow-up interrogatories, for the taking of depositions and for such other discovery as is anticipated.
Other parties may respond as if the discovery plan were a motion."
Board Order at 12 (emphasis added).
The order portion implemented this ruling:
"S.
CASE and Meddie Gregory shall file the discovery plan discussed in the accompanying memorandum.
Other parties may respond to the plan as if it were a motion.
These obligations shall not be stayed by the filing of an appeal."
Board Order at 13 (emphasis added).
Nowhere in the Board Order was there a declaration or suggestion that discovery was already open.
4.
In response to the foregoing, the intervenors on May 15, 1986, filed a proposed Discovery Plan which referenced and attached a set of Interrogatories and Request for Documents, a copy of which plan is attached hereto and marked
m 1
1 L
"C".
A copy of the discovery reques,t is attached hereto and marked "D".
5.
On May 27, 1986, as contemplated yy the Licensing Board's order, Applicants responded to the intervenors' proposed discovery plan.
A copy of that response is attached In, hat response Applicants essentially hereto and marked "E".
t acquiesced in the intervenors pl'an but argued that the burden of discovery 'should,not yet be l'L) posed in this case at least until this Appeal acard had decided the pending appeals of Applicants and the' Staff.
Exh. E at 3-5.
6.
On June 4, 1986, the Staff replied as contemolated by the Licensing Board's order and also stated its view that
' discovery should not commence pending resolution of the appeals before this Appeal Board.
7.
In the., interim, en June 2, 1986, the intervenors filed a motion to co$apel, a copy of which is attached hereto and marked "F".
This motion proceeded from the erroneous premises that a deadline for answering interrogatories had passed (despite the fact that by their own terms they had allowed at least until 30 days after receipt for answers, see Exh.
D.
ac
- 1) and that the issuance of the May 2, 1986, Order had actually opened discovery.
It had not, as is clear from the order hete at issue which in fact opens discovery as c.f June 6, 1986.
J Exh. A, Attach' ment A.
8.
BeNore Applicants could respond to the motion to
~
compel (a response would have been due June 12th), the Order at bar was issued.
{ J ARGUMENT A.
This Motion is Properly Made to the Appeal Board This motion is in the nature of a stay pending appeal which ordinarily should be first addressed to the Licensing Board,
- see, e.g., Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-338, 4 NRC 10, 12 (1976), but such a filing is not a jurisdictional prerequisite under the Commission's rule.
Moreover, the Licensing Board has expressly made clear in the Order at bar that it will not grant the relief sought.
Exh. A at 2.
It further makes clear that the Licensing Board will not entertain Id. at requests for extension of time at least by Applicants.
1-2.
The Licensing Board states that Applicants "have not requested a stay from us."
That is true because until the Discovery Order at bar issued, there was nothing to stay.
The
.Prehearing Conference Order of May 2, 1986, merely requested, that intervenors file a plan and Applicants and the Staff respond.
It noted that "these obligations" (i.e.,
to file a plan and respond) would not be stayed pending any appeal.
(Exh. B at 13 1 5).
There was no order for discovery to be stayed.
Thus no argument can be heard that Applicants slept on their rights or should be denied relief for failure to first seek a stay from the Licensing Board.
i
B.
The Discovery order Should Be Stayed It is often stated the most significant factor in determining whether to grant a stay pending appeal is whether the moving party makes a persuasive case under the second (irreparable injury) of the four relevant factors under 10 C.F.R. 52.788.
E.g., Metropolitan Edison Co. (Three Mile Island Nuclea,r Station, Unit 1), CLI-84-17, 20 NRC 801, 804 And we are also aware that " mere injuries, however (1984).
in terms of money, time and energy necessarily substantial, Toledo expended in the absence of the stay, are not enough."
(Davis-Besse Nuclear Power Station, Units 1, 2 and Edison Co.
3), ALAB-385, 5 NRC 621, 628 (1977).
Nonetheless, Applicants will suffer such injuries as a corporate entity if discovery proceeds while these appeals are pending, and some individuals will lose a fair amount of sleep to answer a burdensome set of discovery requests in ten days, if, indeed, it is physically possible to do so in that time.
While Applicants realize that such injuries are not as a class typically regarded as sufficient to support a stay, in the circumstances of this type of motion this is the only form of injury to which a party Here a Licensing Board has admitted a single could be subject.
and the admission is before the Appeal Board contention, to a special commission regulation authorizing pursuant interlocutory review and resolution of the propriety of that admission.
All that can even be at stake in terms of injury
L pendente lite in such a case are the rigors of continuing with litigation.
To rule that such is insufficient ever to support a stay is to rule that no stay of a proceeding pending the determination of a Section 2.714a appeal ever would be appropriate.
It is for this reason that in such cases a primary factor must be a showing of likelihood of success.
As to the fourth (public interest) factor, 10 C.F.P.
S2.788(e)(4)l the public interest would likely not be affected by the denial of the stay except insofar as either shareholders ratepayers must absorb the costs of the discovery process.
or However, there is a public interest in the efficient conduct of these proceedings which is not necessarily served by the authorization of expedited discovery by a licensing board while an appeal board is considering appeals as a matter of right as to whether a non-mandatory hearing need be held at all.
As to the third factor (injury to other parties if the stay is granted), undoubtedly the intervenors will argue that they will be injured by a delay in discovery.
However, there can be intervenors from mere deferment of discovery.1 no injury to the
-1/
Loss of discovery cannot hurt the intervenors unless it is coupled with the obligation to proceed to litigation without it.
Here the issue is only deferring discovery until the Appeal Board has determined whether there should be a proceeding at all.
Should this Appeal Board affirm the admission of the contention below, the intervenors will have their discovery and will have suffered no harm.
Should this Appeal Board reverse admission of the contention then the intervenors, like the Applicants, will have been spared the time and expense of unnecessary discovery.
1 s
' Assuming this Appeal Board acts on the appeal with its usual And dispatch, a decision is not likely to be long in coming.
should the Appeal Board later come to the view (1) that a decision will be a long time coming and (2) is likely to affirm the Prehearing Conference Order of the Licensing Board issued May 2, 1986, the Appeal Board can always lift the stay.
Which brings us to the first factor -- likelihood of success in thre n.erits.
Unlike the usual case where a stay pending appeal is sought, in the situation here presented, the merits have been fully briefed by all parties.
We respectfully suggest that the briefs on the appeal filed by both the Staff and Applicants constitute "a strong showing that [ Staff and Applicants are] likely to prevail on the merits."
The May 2, 1986, decision of the Licensing Board on appeal, we submit, clearly transgresses the Commission's decision in Washington Public Power Supply System (WPPSS Nuclear Projects Nos. 1 and 2), CLI-82-29, 16 NRC 1221 (1982).
It further wholly ignores the requirement for a statement of basis to underpin an admissible contention and it granted a remedy not sought by the petitioners for intervention.
We suggest the briefs on file on the merits constitute the
" overwhelming" showing that would be required even if only one factor was present.
Public Service Company of Oklahoma (Black
~
Fox Station, Units 1 and 2), ALAB-508, 8 NRC 559, 560-61 (1978).
L Wholly apart from the foregoing showing under 10 C.F.R.
S2.788, there exist additional reasons why the relief sought should be granted in any event.
What distinguishes the present situation from the usual stay pending appeal situation is that the appeal is an interlocutory appeal of right expressly provided for in the regulations and is determinative of whether there will be any proceeding at all.
It is in this context that the present motion must be assessed.
A major benefit of 10 C.F.R. S2.714a is to provide a vehicle for allowing the question of whether a hearing should be held at all to be finally resolved at an appellate level before the expenditure of resources and money in the hearing effort actually takes place.
The Order at bar operates in denigration of that policy.
A considerable discovery effort will be forc.ed upon Applicants even before oral argument of the appeal allowed by the rules.
The order was handed down on a Friday afternoon, before Applicants had an opportunity to respond to the pending motion to compel, and gives Applicants ten days therefrom to comply with the extremely burdensome discovery request.
The rules would give fourteen days for interrogatories and thirty days l
for document production responses.
It is true that licensing l
boards have the authority to shorten discovery deadlines, but i
ten days to respond to the requests set out in Exhibit D is not reasonable.
The only reason given for this short deadline is the Licensing Board's view that:
s 4 " Applicants operated (sic) their plant for months without a license and are now operating (sic) their plant with a construction permit granted without a hearing.
Unless expedition occurs in this case, the case may become moot."
To begin with, the Commission itself, after briefs, rejected the view that a new construction permit proceeding (including a mandatory hearing) was necessary or appropriate.
The Commission concluded that the existing permit could and should be amended, and decided to let construction proceed without a prior hearing.
Texas Utilities Electric Company (Comanche Peak Steam Electric Stations, Unit 1), CLI-86-4, 23 NRC 113 (1936).
In so doing the Commission noted its view that CASE at that juncture had " failed to demonstrate a high probability of success in challenging TUEC's claim of good cause for the extension."
Id. at 123.
Thus, the Licensing Board's concern with continued construction without a hearing is something the Commission itself has already found to be appropriate.
the initial discovery being compressed to the degree
- Moreover, it has been is not going to determine whether a case scheduled by the Licensing Board for trial no earlier than January 1987 (assuming commencement of trial at least two weeks following the last prehearing conference) becomes moot or not.
(The trial would begin even later if intervenors elect to take
" Phase III" discovery.)
The Order transgresses the policy behind 10 C.F.R. 52.714a and should be stayed.
4 1 CONCLUSION This motion should be granted and the order opening discovery stayed.
Respectfully submitted, Nicholas S. Reynolds William A.
Horin BISHOP, LIBERMAN, COOK, PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 (202) 857-9800 Robert A. Wooldridge WORSHAM, FORSYTHE, SAMPELS'
& WOOLDRIDGE 2001 Bryan Tower, S'uite 3200 Dallas, Texas 75201 (214) 979-3000 Roy P.
Lessy, Jr.
MORGAN, LEWIS & BOCKIUS 1800 M Street, N.W.
Washington, D.C.
20036 (202) 872-5000 Thomas G.
Dignan, Jr.
R.K. Gad III-ROPES & GRSY 225 Franklin reet f
Boston, Massa usetts 02110 (617) 423-61
\\'
BY Nich )
s J Reynolds June 9, 1986
1 V
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
TEXAS UTILITIES ELECTRIC
)
)
Docket No. 50-445-CPA
)
(Comanche Peak Steam Electric
)
Station, Unit 1)
)
CERTIFICATE OF SERVICE Motion for hereby certify that copies of the " Applicants' I
Stay of Discovery Pending Resolution of Appeal," in the above-captioned matter were served upon the following parties by deposit in the United States mail, postage prepaid, or by hand delivery (*) on this 9th day of June, 1986.
Dr. W. Reed Johnson Chairman Atomic Safety and Licensing Administrative Judge Atomic Safety and Licensing Appeal Panel U.S.
Nuclear Regulatory Appeal Panel U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Commission Washington, D.C.
20555
- Alan S.
Rosenthal, Esquire Thomas S. Moore, Esquire Chairman, Atomic Safety and Administrative Judge Licensing Appeal Board Atomic Safety and Licensing U.S.
Nuclear Regulatory Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commission Washington, D.C.
20555 Peter B.
Bloch, Esquire Mr. James E.
Cummins Chairman, Atomic Safety Resident Inspector and Licensing Board Comanche Peak S.E.S.
U.S.
Nuclear Regulatory c/o U.S.
NRC P.O. Box 38 Commission Washington, D.C.
20555 Glen Rose, Texas 76043 Dr. Walter H. Jordan Mr. William L.
Clements Administrative Judge Docketing and Services 881 West Outer Drive U.S.
Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Washington, D.C.
20555
E e
/
- Stuart A. Treby, Esquire Mrs. Juanita Ellis Office of the Executive President, CASE 1426 South Folk Street Legal Director U.S.
Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C.
20555 Ellen Ginsberg, Esquire Renea Hicks, Esquire Atomic Safety and Licensing Assistant Attorney General Environmental Protection Board Panel U.S. Nuclear Regulatory Division P.O.
Box 12548, Capitol Station Commission Austin, Texas 78711 Washington, D.C.
20555
- Anthony Z.
Roisman, Esquire Joseph Gallo, Esquire Executive Director Isham, Lincoln & Beale Trial Lawyers for Public 1120 Connecticut Ave., N.W.
Suite 840 Justice 2000 P St.,
N.W.,
Ste. 611 Washington, D.C.
20036 Washington, D.C.
20036 Dr. Kenneth A. McCollom Mr. Lanny A.
Sinkin Administrative Judge Christic Institute 1324 North Capitol Street 1107 West Knapp Stillwater, Oklahoma 74075 Washington, D.C.
20002 Ms. Billie P. Garde Mr. Robert D.
Martin Citizens Clinic Director Regional Administrator, Government Accountability Region IV U.S. Nuclear Regulatory Project Commission 1901 Q Street, N.W.
Washington, D.C.
20009 611 Ryan Plaza Drive Suite 1000 Arlington, Texas 76011 Elizabeth B. Johnson Geary S. Mizuno, Esquire Administrative Judge Office of the Executive Oak Ridge National Legal Director U.S.
Nuclear Regulatory Laboratory P.O.
Box X, Building 3500 Commission Oak Ridge, Tennessee 37830 Washington, D.C.
20555 h
Am William 'A.
Hdrin l
l
Exhibit A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 8efore Administrative Judges:
Peter B.~Bloch, Chairman Dr. Kenneth A. McCollom Dr. Walter H. Jordan Docket No. 50-445-CPA In the Matter of TEXAS UTILITIES ELECTRIC COMPANY, et al.)
~~ ~ )
ASL8P No. 86-528-02-CPA (ComanchePeakSteamElectricStation,
),
Unit 1)
)
)
June 6,1986 MEMORANDUM (Adoption of Discovery Schedule)
After consideration of "Intervenors' Proposed Discovery Plan",.M.ay 15, 1986, " Applicants' Response to Intervenors' Proposed. Discovery Plan," May 27, 1986, and NRC Staff Response to Intervenors' Proposed Discovery Plan, June 4, 1986, we have decided to adopt a schedule approximately equal to 80 percent of the time deadlines suggested by Staff. The schedule is set forth in Attachment A.
We have decided to set the time deadlines as we have in considera-tion of the fact that Applicants. operated-their plant for months without a license and are now operating their plant with a construction permit granted without a hearing.
Unless expedition occurs in this case, the case may become moot.
Consequently, parties may expect deadlines to be rigorously imposed, particularly against Applicants.
Staff will be expected to comply with these deadlines as well.
All filings are to be delivered _ by the due date.
i
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4 Discovery Schedule:
2 We are not persuaded by Applicants' and Staff's suggestion that discovery be stayed pending the. results of their appeal.
Applicants shall respond to intervenors' first round discovery by June 16, 1986.
Since they have not requested a stay from us, only a stay granted by the Appeal Board would attenuate that obligation.
We would,be receptive to motions to the proposed schedule provided that they are intended to reduce the length of the proceeding or that they are addressed to factors that the Board may not have considered in setting the schedule.
ORDER For all the foregoing reasons and based on consideration 0f the entire record in this matter, it is this 6th day of June 1986:
ORDERED:
The Schedule set forth in Attachment A is adopted, with all filin'gs to be received _by close of business on the due date.
Applicants shall deliver to the parties and Board their response to intervenors' outstanding discovery request by close of business June 16, 1986.
FOR THE ATOMIC SAFETY AND LICENSING BOARD i
Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland s
.sR d
Discovery Schedule:. -3 ATTACHMENT A Dy Event i
June 6 Phase 1 Discovery comences (Applicants deliver answer to previously filed interrogatories by June 16)
June 19 Last date for Phase I discovery July 3 Phase I discovery closes July 7 Phase II Discovery comences 4
August 14
. Phase II Discovery closes August 15 Phase III Discovery commencps (if necessary)
September 2 Phase III Discovery closes September 9 Request for Admissions / Proposed Stipulations / Proposed Sumary Disposition Issue Lists are filed, if no Phase III Discovery September 25 Responses to Admission / Proposed Stipulation Received, if no Phase III Discovery November 10 Sumary Disposition Motions, if no Phase III Discovery December 5 Answers to Sumary Disposition Motions, if no Phase III Discovery December 17 Prehearing Conference if no Phase III Discovery j
Contingent Schedule if Phase III Discovery is Filed September 26 Request for Admissions, etc.
November 3 Responses to Adm'ssions, etc.
December 20 Summary Disposition Motions January 6,1987 Prehearing Conference NOTE: The Board accepts the definition of phases proposed by interve-nors.
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Ra Exhibit B
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j UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before Administrative Judges:
Peter B. Bloch, Chairman Dr. Kenneth A. McCollom Dr. Walter H. Jordan 1
In the Matter of h
Docket No. 50-445-CPA 0>
TEXAS UTILITIES ELECTRIC COMPANY, ~et al.'l h
ASLBP No. 86-528-02-CPA
~
(Comanche Peak Steam Electric Station, Unit 1)
May 2, 1986 SPECIAL PREHEARING CONFERENCE' MEMORANDUM AND ORDER MEMORANDUM (CONCERNINGPARTIESANDCONTENTIONS)
~ Petitioners Citizens Association for Sound Energy (CASE) and Meddie
^
Gregory, both having filed petitions on April 7, 1986, seek admission as This chse parties and propose multiple contentions for litigation.
involves Texas Utilities Electric Company,.et, al.'s (Applicants')
request of January.29,1986 that their construction permit be extended from August 1, 1985 to August 1, 1988.
Special Prehearing Conference was held on April 22, 1986, in A
Dallas.
We conclude that both parties shall be admitted and that each has proposed a conteri:fon that shall be admitted.
6
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Special Prehearing Conference:
2
^
I.
. Standing of Parties Neither the Staff of the Nuclear Regulatory Commission (Staff) nor the Applicants contest the standing of either intervenor, based in part on proximity to the plant of place of residence.
Consequently, we find that there is standing to intervene.I II.
Standards ' Governing Admissibility of Contentions There are two kinds of standards affecting the admissibility of contentions in this proceeding.
First, there is a standard of relevance that restricts the admissibility of contentions in proceedings con-cerning requests to extend the term of construction permits.
- Second, there are the. standards that govern the admissibility of contentions 'in any Nuclear Regulatory Commission proceeding.
-A.
Construction Permit Extension Proceeding Limitations In this case, which involves a request for an extension of a construction permit, we are governed by Texas Utilities Electric Compa-m et al. (Comanche Peak Steam Electric Station, Unit 1), March 13, f
1986 CLI-86-04 (memorandum opinion).
In that opinion, the Commission stated that:
to TUEC's the scope of the proceeding is limited to challenges
[ Applicants'] effort to show " good cause" for the extension.
For this purpose, we approve of the discussion in "NRC Staff's Answer to Petitions for Leave to Intervene Filed by CASE and Meddie Gregory," at 6-11.
/
J m
4 6
~.
Special Prehearing Conference:
3 Washington Public Power Supply System (WPPSS Nuclear Projects Nos.
1 and 2), CLI-82-29; 16 NRC 1221, 1229 (1982)
Turning then to the page cited by th'e Commission in the WPPSS decision, we find that this proceeding is limited asserted reasons that to direct challenges to the permit holder's show " good cause" justification for the delay. [ Emphasis added.]
[A] permit holder must put forth reasons, founded in fact, that explain why the delay occurred and those reasons must, as a matter of, law, be sufficient to sustain a finding of good cause..
Moreo'ver, the permit holder cannot misrepresent those reasons si upon which it seeks to rely, for, as the Appeal Board in Cook noted; any determination of the sufficiency of a permit holder's reasons for delay "would be influenced by whether they were the sole important reasons for the delay or whether, instead, the delay was in actuality due in significant part to some other cause (which perhaps might have indicated that the applicants have been dilatory this factor was
/%
in the. conduct of,the construction work and that
'L' the principal explanationjfor the need for an extension of the i
An intervenor is thus always free to
.4 completion deadlines)..
- 4.. permit extension by seeking to prove jf challenge a request for a that, on" balance, : delay was caused by circumstances that do not P..:
(~
constitute " good cause." j a
find rellevant to. our task the following language ih s
We also CLI-82-29, which occurs on page 1230 of that opinion:
If a permit holder were to construct portions of a facility 'in violation of HRC regulations, when those violations are detected and corrections ordered or voluntarily undertaken, there is likely in the construction caused by the revisions.
to be some delay Nonetheless, such delay, as with delay caused by design changes, must give " good cause" for an extension.
that it is not
.This passage places the following gloss on CLI-82-29:
sufficient' to allege that a delay has been caused by violations of applicable regulhtions.
The allegation must show more than a mere In those circumstances, it must allege as well that appli-violation.
cants were dilatory in the conduct of the construction work and that I
/
4 Special Prehearing Conference':
.. f this factor was the principal explanation for the need for an extension of the completion deadlines.
We learn from Washington Public Power Supply System, et al. (WPP Nuclear Project No. 2), ALAB-722,1983,17 NRC 546 at 552 that "dilato-1 ry" "means the intentional delay of construction without a valid pu And from footnote 6 of that case we learn that "the ptirpose and pose."
action taken mus't be consistent with the Atomic Energy Act and imple
's We further learn, at page 553 of that case, that menting regulations."
even if we were to find, based on evidence to be presented to us, that Applicants were dilatory, we would still be required to make a jud as to whether continued construction should nonetheless
{
General Standards Governing Contentions B.
The admissibility of contentions in this proceeding also is gov-erned by 10 C.F.R. 52.714, which requires petitioner to file a supplement to his petition to intervene w forth with for each contention set the matter, and the bases reasonable specificity.
[Emphasisadded.]
This require:nent has been further elaborated in two Atomic Safe f
Licensing Appeal Board decisions, Mississippi Power and light _
and Company (Grand Gul'f Nuclear Station, Units 1 and 2)_6 Creek Nuclear Generating liouston Lighting and Power Company (Allens r
r
Special Prehearing Conferdce:
5 Station, Unit 1), ALAB-590,11 NRC 542 (1980).2 These cases limit the Grand Gulf held that power of licensing boards to exclude contentions.
a licensing board should not reach the merits of a conte.ntion and should not require the introduction of underlying evidence, providing that "the basis for the contention... is identified with reasonable specifici-ty."
Similar1y, Allens Creek found admissible a contention that cited a specific sectian of the Final Environmental Statement and also cited a government report, Project Independence, as authority for its principal factual assertion.
In the course of that opinion, the majority of the appeal board set limits on how deeply a licensing board may go in analyzing the validity for the conclusions of an authority who was cited in support of a contention.3 g
?
III.
Applicants' Statement of Good Cause Applicants have claimed that the cause for the delay in constr'uc-tion of the Comanche Peak is as follows:4 Physical construction on Comanche ~ Peak Unit I was essentially However, major efforts to reinspect and completed in early 1985.
reanalyze various structures, systems, and components have been ongoing since the fall of 1984 in order to respond to the questions raised by the NRC Staff's Technical Review Team ("TRT"), by the also_ Washington Public Power Supply System, et al. (WPpSS See Nuclear Project No. 2)_, ALA8-722,1983 at 551, footnote 5.
See Cleveland Electric Illuminating Company,_ et al. (Perry Nuclear 3
Power Plant, Units 1 & 2)_,14 NRC 175 (1981).
4 Comanche Peak Steam Electric Station Docket No. 50-445; Request for Extension of Construction Permit No. CPPR-126, January 29, 1986.
/
Special Prehearing Conference:
6 C
Board and parties in the ASLB operating license proceedings, and raised by other external sources. The TRT was formed by senior NRC Staff management in March of 1984 to consolidate and carry out the various reviews necessary for the Staff to reach its decision regarding plant licensing.
Applicants formed the Comanche Peak Response Team and submitted a Program Plan to respond to the TRT's questions, the ASLB issues, and the other external sources ' issues.
That Plan is presently being implemented.
It 'is anticipated that such implementation will not be complete before the'second quarter of 1986.
Based upon the foregoing, Applicants submit that the delay which necessitates the construction permit extension was not the result of dilatory action by Applicants; that is, there was no Matter intentional delay of construction without a valid purpose.
of Washington Public Power Supply System (WPPSS Nuclear Project No.
Matter of Washington Public J1, ALA8-771,19 NRC 1183,1189 (1984);
Power Supply System (WPPSS Nuclear Project No. 2), ALA8-722,17 NRC Further, the ultimate good cause finding should 546, 553 (1983).
" encompass a judgment about why the plant should be completed and is not to rest solely upon a judgment as to the applicants' fault for delay." ALAB-722,17 NRC at 553.-
It scarcely bears mention that App 1fcants here have not
('
L delayed placing Comanche Peak Unit 1 in operation intentionally The delay has been necessitated by the without valid purpose.
performance of the reinspections and reanalyses described above.
Obviously, Applicants would not delay operation of Coma,nche Peak Unit 1 'any longer than is necessary to demonstrate the safety 'of the plant to their own satisfaction and that of the NRC.
IV.
Intervenors' Admissible Contention Intervenors have filed a contention that alleges that Applicants have not set forth the principal cause for the delay in completing construction and that also alleges that the delay occurred because of l
dilatory conduct'by Applicants.
Af ter considering the legal consider'a-tions of relevance, specificity, and adequate basis, we consider that contention, which follows, to be admissible:
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Special Prehearing Conference:
7 CONTENTION #1:
Applicants have not met their burden of proving that the delay in completion of construction was not caused by their own dilatory conduct.
Applicar,ts have not given any reason for 'the existence of a.
the delay.
They only assert they need more time to complete a reinspection, redesign, and reconstruction program but they. do not disclose the reason why such programs are needed or that.
the reason for delay was not intentional and without a valid-purp,ose.
b.
The real reasons for the delay in construction completion were that:
1.
Applicants deliberately refused to take positive action to reform their QA/QC program in the face of consistent criticism, and 2.
App 1tcants have failed to properly design their plant, specifically:
- i. Applicants failed to correctly apply fundamental
(~
engineering principles, Appitcants failed to properly hdentify unique 11.
designs in their PSAR, iii. Applicants constructed much of their plant prior to its design having been conipleted, iv.
Applicants have failed to comply with 10 CFR Part 50, Appendices A and 8, including their failure to promptly identify and correct design deficien-cies, and deliberately refused to take positive action to correct such deficiencies.
i As a basis for this contention, CASE and Meddie Gregory state:
5 The admitted contention is a combination of CASE No. 6 and Gregory No. 1.
The only substantive change made by the licensing Board is that we consider that part of the contention was in fact a statement of basis.
We do not consider the statement of basis to be a part of the contention.
C l
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Special Preh aring Conference:
8 C
Applicants ignored consistent criticism of their QA/QC program over a period of at least ten years and of their design over a period of at least four years, in the face of warnings by independent audi-tors, the NRC, and even the~ Atomic Safety and Licensing Board. As a
result of these deliberate
- actions, Applicants built an unlic'ensable plant which must now be reinspected, redesigned, and reconstructed in the hope that it can be made licensable. There is no valid purpose given by Applicants for why, in the face of these.
criticisms, they refused to
'.nge their QA/QC implementation or address and correct design dt iencies.
Thus Applicants have not established a good cause for the delay.
l i
A.
Relevance Since intervenors have alleged that Applicants were dilatory in not completing their plant within the tenn of their construction pennit,.
their contention is relevant.
Intervenors' interpretation of the facts
--whose truth may be tested througli discovery and hearing-- is that b
Applicants did understand the deficiencies in their QA program but that 6
they were dilatory because they deliberately did not correct those deficiencies in a timely fashion.
They state that Applicants have not alleged a valid purpose for that delay.
Petitioners contention is relevant.
Their interpretation of Applicants' statement of good cause is that all Applicants have desig-l nated as cause is that it is now necessary to take time to correct deft-ciencies.
Petitioners allege, on the other hand, that there is no explanation of the source of the deficiencies.
'They state that 6
We consider " deliberately" and " intentionally" to be equivalent tenns in this context.
C
Special Prehearing Conference:
g Applicants deliberately ignored warnings of adverse conditions, that their de' lay has resulted in the need for the correction efforts now under way, and that Applicants have not provided a good cause fo.r the resulting delay.
B.
Board Determination of Adequate Basis As we-just discussed, intervenors allege that Applicants were dilatory in completing construction.
The only aspect of the basis for the contention that is at all troubling is whether there is a' basis for beli&ving that Applicants intentionally failed to complete construction within the terms of their construction permit.
Applicants are.a group of corporations.
For a group of corpo'ra-tions to intentionally fail to complete construction, they must have knowledge of what they are doing.
As fictional entities, corporations are said to know what they are doing if their agents know what they 'are In this instance, Applicants must not only have acted intention-doing.
ally but they also must have had an invalid purpose.
Consequently, the petitioners must provide a basis for inquiring further about whether Applicants acted intentionally and whether their purpose was invalid.
As a basis for their contention, petitioners refer to documents well known to the judges on the Board, all of whom also sit on the companion case involving an application for an operating license for Comanche Peak.
It is not our job at this stage of this case to scruti-nize each of those documents carefully and conduct an analysis of the
/
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Spegial Prehearing Conferenca:
10 extent to which they support in detail CASE's interpretation of the facts.
It is enough for us to know that the cited documents do contain consultants' opinions and the opinions of this Board concerning QA for design.
These documents date back to 1975.
For the purpose of
~
detenntning whether to admit this contention, we interpret the facts -
favorably to petitioners' contention.
So, absent proof to the contrary.
we assume that Applicants knew of the adverse consultant reports and NRC We also assume that they had access to plant officials and the reports.
ability to gather information about the plant's condition. We also are aware that the major remedial step taken by Applicants, formation of the Comancile Peak Review Team, did not occur until 1985.
C.
Conclusion We find that petitioners' allegations of the true cause of the delay in constructing this plant are relevant and have sufficient basis to be admissible; they shall be admitted as a contention.
Petitioners appear to be correct in pointing out that Applicants have not alleged the underlying cause of the delay in completing construction nor what valid purpose may explain that delay.
It is not necessary that petitioners' theory of. the case be the It is only interpretation permissible from the documents they cite.
enough that their theory be a reasonable interpretations, and we find that it is reasonable.
(.
9
1 l
Special Prehearing Confarence:
11 It does not refute petitioner's basis that there is.another reasonable interpretation of the same facts, such as the disbelief of the consultants' reports by Applicants.
It also is not relevant, at the contention stage, that Applicants may be able to sustain a defense that they disbelieved the consultants they hired because they knew that the 7
consultants were wrong.
Having admitted Contention 1, we now wish to interpret it because it contains design allegations that do not of themselves assert willful-ness. These allegations shall be interpreted by the Board to require only that Applicants carry the burden of showing that the conditions either did not occur or that failure to remedy them was not willful.
V.
Inadmissible Contentions l
Because of our interpretation of the law concerning contentions that are admissible in construction permit extension procee' dings, we will not admit CASE's contentions 1 to 5, and 7-9.
Similarly, we will not admit Gregory. contentions 2-4.d CASE has argued, ably but not persuasively, that it could gain admission of a contention into this proceeding for the purpose of imposing conditions on the Applicant's permit.
However, petitioners' proposed conditions do not deal with the I
See, however, Texas Utilities company Form 8-K Current Report, Securities and Exchange Commission, April 18, 1986.
O See, passim Permittee's Answer, April 17, 1986.
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Special Prehearing Conference:
12 subject matter of the application: a request for more time.
The sug-gested conditions relate to substantive matters about tiic cnrrection of deficiencies in the plant.
We do not find any authority to consider these conditions independent of the admitted contention, dealing with dilatoriness in addressing known conditions.
Conshlidation of Parties i
VI.
Since the contention in this proceeding was submitted by,both CASE and Meddie Gregory, we shall consolidate the parties for hearing.
See 10 CFR f 2.714(e).
VII.
Discovery Plan Within 14 days of service of this Memorandum and Order,' the inter-venors shall file a discovery plan, setting forth the schedule for the filing and answering of interrogatories and follow-up interrogatories, for the taking of depositions and for such other discovery as is antici-pated.
Other parties may respond as if the discovery plan were a motion.
0R0ER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 2nd day of May 1986
[
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Special Prehearing Conference:
13 ORDERED:
1.
That the petitions to intervene of Citizens Association for e
Safe Energy (CASE) and of Meddie Gregory are granted.
2.
Contention #1, described in the accompanying memorandum, is admitted.
CASE and Meddie Gregory are consolidated as a single party and '.
3.
shall be represented by a single person or team of people..with respon-sibilities carefully delineated so as to avoid the necessity for multi-ple filings or argument.
4.
Pursuant to 10 CFR f 2.714a, this Order may be appealed to the Atomic Safety and Licensing Appeal Board within ten (10) days after service of this order by a party other than the petitioner on the I -
question whether the petition and/or the request for a hearing should have been wholly denied. Any appeal shall be asserted by the filing of, a notice of appeal and accompanying supporting brief. Any other party may file a brief in support of or in opposition to an appeal within ten r
(10) days after service of the appeal.
J 5.
CASE and Meddie Gregory sha'11 file the discovery plan discussed in the accompanying memorandum.
Other parties. may respond to the plan as if it were a motion. These obligations shall not be stayed by the filing of an appeal.
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i Special Frehearing Conference:
14 FOR THE ATOMIC SAFETY AND LICENSING BOARD Peter 8. Bloch, Chairman ADMINISTRATIVE JUDGE Nalter H. Jo
'n ADMINISTRATI JUDGE h
f Kenneth A. McCollom ADMINISTRATIVE JUDGE Bethesda,Maryiand O
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Exhibit C a
BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
TEXAS UTILITIES GENERATING COMPANY,
)
Dkt. No. 50-445-CPA
- _al.
')
et (Comanche Peak Steam Electric
)
Station, Units 1 and 2
)
6, INTERVENORS' PROPOSED DISCOVERY PLAN Intervenors Meddie Gregory and the Citizens Association for Sound Energy (CASS) (" Joint Intervenors") submit the following discovery plan in response to the May 2, 1986, order of the Atomic Safety and Licensing Board admitting both intervenors as 1
parties and also admitting a sole contention.
3 The admitted contention was a combination of CASE No. 6 and Gregory No. 1 and reads:
Applicants have not met their burden of proving that the delay in completion of construction was not caused by their own dilatory conduct.
Applicants have not given any reason for the a.
existence of the delay.
They only assert they need more time to complete a reinspection, redesign, and reconstruction program but they do not disicose the reason why such programs are needed or that the reason for delay was not intentional and without a valid purpose.
b.
The real reasons for the delay in construction completion were thats 1.
Applicants failed to correctly apply fundamental engineering principles, 11.
Applicants failed to properly identify unique designs in their PSAR, t
j.
The premise of Joint Intervenors' case is that Applicants have not demonstrated a valld' business purpose, or good.cause, for the delay in construction of Unit 1 which necessitated an 2
oxtension of the completion date.
Joint Intervenors can prevail here if they prove that lii. 'Appli ants constructed much of their plan prior.to its design having been completeds ivg Applicants have failed to comply with 10 CFR Part 50, Appendices A and B, including their failure to promptly identify and correct design deficiencies, and deliberately-refused to take positive action to correct such deficiencies.
As a basis for this contention, CASE and Meddie Gregory state:
Applicants ignored consistent crir.icism of their QA/QC program over a period of at least ten years and of their design over a perioil of at least 'four years, in the face of warnings by independent. auditors, the NRC, x,
and even the Atomic Safety,and Licensing Board.
As a result of these deliberate. actions, Applicants built an unlicensable piant which must now be reinspected, redesigned, and reconstructed in the hope that it can be made licensable.
Thero.is no valid purpose given by Applicants for why, in the face of these criticisms, they refused to change their QA/OC implementation or address and correct design deficiencies.
Thus Applicants have not established a good cause for the delay.
2 The Board here has adopted the definition of " good cause" as defined by the Atomic Safety and Licensing Appeals Board in the matter of Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, 552 n. 6 (1983).
This two-
~
pronged test for determining good cause is. (1) whether the construction delays at issue are traceable to the Applicant, and (2) whether the delay is " dila tory, ',' or, as defined by the ASLAB, whether the delay is intentional and not for a valid business This test was explicitly endorsed by the Commission in purpose.
the matter of Public Service Company of New Hampshire (Seabrook),
19 NRC 975 (1984).
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T.
Applicants were responsible for the delay and that the delay is without a good cause.
Joint Intervenors also can prevail here if Applicants fail to prove that they were not responsible for the delay'or that they had a valid business purpose for the delay.
In order to develop their case, Joint Intervenors propose a three-phase discovery process,' motions for summary disposition, if necessary, and the hearings.
Phase I will'. consist of requests for documents and interrogatories, which will define everything that the Applicants intend to rely on to prove their case and produce all information in Applicants' possession regarding external and internal criticisms of Applicants' design, construction, and QA/QC There will be two sets of interrogatories and requests programs.
g for documents, one primarily for construction and QA/QC construction issues, which is attached to this plan, and another cet to be filed on or before June 2, 1986.
Bar.ed on the history of discovery in other dockets involving Comanche Peak, joint intervenors anticipate that this phase of discovery will be fairly contentious, with numerous objections, delays, inadequate responses, etc.
Upon receipt of all information that serves as a basis for their case, a time dictated by applicants' production of materials, Phase II will 3
Commence.
Phase II will build on the data produced in Phase I and seek 3
To the extent it is possible for Joint Intervenors to move into Phase II of discovery in some areas before completing Phase I, we intend to do so; therefore seriatim substantive replies will generate a floating schedule for completion of Phase II. >
to home in on areas where the disclosures made in Phase I indicate new fruitful avenues for discovery.
If or when information generated in Phase I leads to other relevant discovery, Joint Intervenors will file a second round of document requests which should produce the full basis of Applicants,' case, including all information not disclosed in Phase I that would tend to rebut or clarify the Applicants' affirmative case.
In offect, Phase II will consist of fine-tuned discovery.
Upon receipt of all documents or information in this category, Phase II will be completed.
Phase III will consist of depositions of individuals who can ched light on facts.and circumstances not fully explained in interrogatories or documents.
Joint Intervenors do not plan to f-take depositions unless there is no other means to ascertain C
information.
Therefore, Phase III may not be necessary at all.
Not later than 30 days after completion of discovery, all parties will file Requests for Admissions and Proposed Stipulations and identify all issues each party.beileves can be resolved by summary disposition and those issues each party believes must be resolved in a hearing.
Actual summary disposition motions will be filed 30 days after final responsus to requests for admissions or 30 days after the end of Phases I and II of discovery if no rcquests for admissions are filed.
^
The Board will then hold a pre-hearing conference, rule on oummary disposition motions, and identify those issues to be resolved in the hearing.
s'
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E '6 ~
The hearing will be set by the Board for a reasonable time, approximately two weeks, following the pre-hearing conference.
The time schedule proposed here should apply equally to Staff and Applicants.
The Staff should not be allowed to file papers after the other parties, but rather required to file at the same time as the party whose position it supports.
This will expedite the hearing process, and the Board's residual power under 52.718 should enable it to enforce this requirement on the 6
Staff.
However th*e Board ultimately resolves the discovery echedule, it should treat all parties equally.
Respectfully su'omitted,
- 3. h W b MD. (
ANTHONY Z.
ROISMAN BILLIE P. GARDS Trial Lawyers for Public Justice
(.
2000 P Street, NW, #611 Washington, D.C.
20036 (202) 463-8600 counsel for Meddie Gregory d %.
h JUANITA ELLIS 1426 South Polk Dallas, TX 75224 Representative for CASE Dated:
May 15, 1986
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Exhibit D
/
i BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
TEXAS UTILITIES GENERATING COMPANY,
)
Dkt. Nos. 50-445-CPA ot al.
)
)
(Comanche Peak Steam Electric
)
Station, Units 1 and 2
)
INTERROGATORIES AND REQUEST FOR DOCUMENTS Pursuant to the Rules of Practice, Meddie Gregory requests responses to the questions below and production of the sought efter documents.
We expect responses to these interrogatories and/or requests
,v for document production not later than 30 days after receipt of this request.
Instructions 1.
Each interrogatory or document request should include cil pertinent information known to Applicants, their officers, directors, or employees, their agents, advisors, or counsel.
" Employees" is to be construed in the broad sense of the word, including specifically Brown & Root, Gibbs & Hill, Ebasco, Cygna, Stone and Webster, Evaluation Research Corporation, TERA, any consultants, subcontractors, and anyone else performing work or services on behalf of the Applicants or their agentns or subcontractors.
/
2.
Each answer should indicate whether it is based on the personal knowledge of the person attesting to the answer and, if not, on whose personal knowledge it is based.
3.
The term " documents" shall be construed in the broad cense of the word and shall include any writings, drawings, graphs, charts, photographs, reports, studies, audits, slides, internal memoranda, informal notes, handwritten notes, tape recordings, procedures, specifications, calculations, analyses, e
and any other data' compilations from which information can be obtained.
4.
As to each document provided, applicants shall consider that providing the document constitutes an admission of its authenticity or, pursuant to 92.742(b), the basis for refusing to so admit.
's,
5.
Answer each interrogatory in the order in which it is asked, numbered to correspond to the number of the interrogatory.
Do not combine answers.
6.
These interrogatories and requests for documents shall be continuing in nature, pursuant to 10 CFR {2.740(e) and the past directives of the Licensing Board.
Supplementation shall be made at least every two months to avoid resubmittal of these interrogatories.
7.
For each item supplied in' response to a request for documents, identify it by the specific question number to which it is a response.
If the item is excerpted from a document, identify it also by the name of the document.
/
I' Interrogatories 1.
Identify all documents upon which Applicants intend to rely to demonstrate that there was a " good cause" for the delay in completion of construction of Unit 1.
2.
Identify all documents and all other i nformation which provided the basis for the statement by Applicants in their Current Management Views and Case Management Proposal (June 28, 1985), at 7, that the plant was not licensable at that time.
3.
Identify all audits, reviews, diagnoses, evaluations, consultant reports, in-house audits, or other reports which Applicants received from the beginning of construction to the present assessing, analyzing, commenting on, discussing, or offering an opinion on the plant's construction, procedures, I
compliance with industry or agency standards, or management style
(...
or competence.
(This should include all source documents listed in Appendix B to CASE's Request for Imposition of Fine, Suspension of Construction Activities, and Hearing on Application to Renew Construction Permit, 1/31/86.)
4.
When did Applicants first receive notice of the issues identified by the NRC's TRT reports and SSERs, and in what form did that notice come (i.e., NCR, IR, audit report, menorandum, consultant's report, etc.).
5.
For each item identified in Interrog.
4, identify what response was taken to the problem and by whom.
6.
If the answer to Interrog. 5 is that no action was taken, explain the reason that no action was taken.
If that reason is because Applicants relied on a "second, opinion,"
__, m 6
[/
identify the individuals or organizations who provided that judgment.
7.
Identify how each " finding" identified in Interrog. 4 was integrated into consideration ~of the subsequent findings by others.
(For example, how were the findings by the NRC in 1978 and 1979 integrated into Applicants' response to the findings by the Management Analysis Corporation (MAC)?)
~
8.
State your position on the following, including all ovidence and reaso'ning upon which you rely with respect to each position:
a.
What delayed completion of construction of Unit 1 past August 1, 19857 b.
Why did that delay occur?
c.
Who was responsible for that delay?
d.
Do you believe you had a valid business purpose for the delay and, if so, what was it?
Identify each, person who participated in the e.
decision-making process that led to the delay and describe in detail their role.
Request for Documents CASE requests that Applicant produce the original or copies of all documents in TUEC's cus'tody, possession, or control that refer or relate in any way to documents identified in or used for answering Interrogatories 1 through 7 above.
If a document has already been supplied by TUEC to CASE in another procoeeding, TUEC can identify with particularity the location of the document or answer by including the name of the
..o-
-/
document, page and'line number, in which docket the document was produced, and the date it was produced.
This does not apply if the answer previously provided was an objection.
In that case, TUEC must reassert the objection as applicable to this proceeding.
Respectfully submitted, A 3.Ls w ANTHONY.4.
ROISMAN BILLIE P. GARDE Trial Lawyers for Public Justice 2000 P Street, NW, #611 Washington, D.C.
20036 (202) 463-8600 Counsel for Meddie Gregory Dated:
May 15, 1986 s.
l
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.O r.
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UNITED STATES NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
TEXAS UTILITIES GENERATING COMPANY,
)
Dkt. Nos. 50-445-CPA et al.
.)
)
(Comanche Peak Steam Electric
)
Station, Units 1 and 2
)
CERTIFICATE OF SERVICE I hereby certify that INTERVENORS' PROPOSED DISCOVERY PLAN and INTERROGATORIES AND REQUEST FOR DOCUMENTS were served today, May 15, 1986, by first class mail, or by hand where indicated by an asterisk, upon the following:
Administrative Judge Peter Bloch*
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Walter H. Jordan 881 West Outer Drive Oak Ridge, TN 37830 Dr. Kenneth A. McCollom 1107 West Knapp Stillwater, OK 74075 Nicholas Reynolds, Esq.*
Bishop, Liberman, Cook, Purcell & Reynolds 1200 17th Street, NW Washington, D.C.
20036 i
Docketing & Service Section Office of the Secretary j
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 i
/
[. <;..
d Stuart Treby, Esq.
Geary S. Mizuno, Esq.
Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 WW Ah ANTHO G y ROISMAN t '
F 0
0 0
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Exhibit E UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter o,f
)
)
TEXAS UTILITIES ELECTRIC
)
Docket No. 50-445-CPA COMPANY, et al.
)
)
(Application for (Comanche Peak Steam
)
Construction Electric Station,
)
Permit Extension)
Units 1 and 2)
)
)
)
-[
APPLICANTS' RESPONSE TO INTERVENORS' PROPOSED DISCOVERY PLAN In its Memorandum and Order of May 2, 1986, the Board I
directed Intervenors Citizens Association for Safe Energy
"(CASE) and Meddie'Gr.egory (hereinafter "Intervenors") to
" file a discovery plan, setting forth the s.chedule for the filing and answering of interrogatories and follow up in'terrogatories, for the tak'ing of depositions and for such other discovery as is anticipated.".Memor. ndum at VII,-
p.
12; Order at 5, p.
13.
The other parties were permitted Intervenors have to respond thereto as if it were a motion.
filed their " Proposed Discovery Plan.".This is Applicants' response.
/
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I.
As we understand it, Intervenors propose tripartite, phased discovery, the first portion of which (" Phase I")
c will be comprised of the submission of interrogatories and document production requests directed to identification of the parties'8 p,ositions on the issues and the evidence' they expect to offer in support of those positions.
Following receipt of the information properly requested during Phase' I, a second portion (" Phase II"), will commence.
During this, portion discovery objectives will be narrowed to permit the parties to focus upon specific areas in which additional
'(
written discovery should be efficient.
Discovery during this phase, like the initial phase, is to be conducted through interrogatories and document production requests.
The intent of these first two written discovery periods is to postpone--and perhaps avoid--the taking of oral depositions until other, less burdensome avenues have been exhausted.
If such depositions are neverth'eless required, they will be noticed and conducted in accordance with the
.. rules of practice in Phase III, following completion of the second written discovery phase.
Within thirty days of the 1
See p.
3, infra.
/
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s kV" completion of " Phase III" by all parties, Requests for Admissions shall be filed.2 Subject to the reservat. ions regarding a commencement date discussed below, Applicants find the above-described plan acceptable.3 We note that Intervenors' submission often seems to lack specific references to the discovery requests which Applicants may initiate, but we trust this was merely an oversight in the drafting of Intervenors' plan.
We are in any event confident the Board will follow Intervenors' closing request that the discovery schedule "should treat all parties equally."
When implemented under this standard, we believe Intervenors' three-phased approach appears as likely to produce efficient results as any we
(_
might devise.
II.
The foregoing discussion is premised on the assumption that Applicants' request for an extension of its construction permit will be litigated before this Board and 2
Intervenors' filing goes on to suggest provisions for summary disposition motions and hearings.
Since such items were not within the scope of the Board's directive, we do not address them.
We do not of course address the portions of the 8
Intervenors' plan which seeks to orchestrate the schedule t
for the Staff's filings.
'7
9
%s e o
measured against the contention admitted by the Memorandum and Order of May 2, 1986.
As the Board is aware, however, its allowance of the petitions to intervene and the admission of the single amalgamated contention are the e
subject of appeals filed by Applicants and by the Staff.
c The Board will doubtless appreciate that Applicants believe their appeal is meritorious and will result in an order vacating,,the decision of this Board under which the current discovery plan discussion is relevant.
It should also, recognize that if Applicants' views are vindicated during this appeal, discovery such as is contemplated by the Intervenors' three phase plan would be wholly unnecessary and inappropriate.
Indeed, even if the appeal process were
(
to result only in some form of modification of issues to be litigated, the breadth and scope of discovery allowed the
, parties maychangedrAstically.
4 We thus respectfully rubmit that while it is undeniably prudent and efficient to seek suggestions for a proposed discovery plan which could be implemented in the event.this litigation goes forward as structured by the May 2, order, Because they were not authorized by the Board's May 2 4
Order, we shall not respond to Intervenor Gregory's proposed
" Interrogatories and Requests for Documents" which were appended to Intervenor's Proposed Discovery Plan.
If and when'a specific timetable for filing and responding to such discovery is established, we will present our responses thereto with specific reference to such issues as are then in the case.
7
7.;
- f' it would be unduly burdensome and potentially wasteful to
~
require the preparation of discovery responses until the appellate process has run its course.
Experience confirms that a prompt disposition of the pending appeals is likely.
O CONCLUSION Without benefit of the observations of the Staff, we currently beliqve the Intervenors' proposed tripartate discovery plan offers a workable methodology in the event this litigation.is.in fact to be conducted.
Pending resolution of that issue, however, we believe it would be singularly inappropriate to impose upon any of the parties the burden of preparing responses to discovery pending final
(~
appellate action in this matter.
Accordingly, we urge this
\\,.
Board to refrain from establishing any discovery timetable--at least until the Appeal Board's decision has been announced.
Respectfully submitted, x
Nicholas S. Reynolds William A. Horin BISHOP, LIBERMAN, COOK PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Suite 700 Washington, DC 20036 (202) 857-9800 t
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Robert A. Wooldridge WORSHAM, FORSYTHE, SAMPELS &
WOOLDRIDGE 2001 Bryan Tower, Suite 3200 Dallas, TX 76201 (214) 748-9365 Roy P. Lessy, Jr.
MORGAN, LEWIS & BOCKIUS 1800 M Street, N.W.
Washington, DC 20036 s
(202) 331-2706 Thomas G.
Dignan, Jr.
R. K. Gad III ROPES & GRAY.
225 Franklin Street Boston,'MA 02110 (617) 423-6100
'f By i'li6id a s G.~ Dign g Jr.
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CERTIFICATE OF SERVICE I,
Thomas G.
- Dignan, Jr.,
one of the E*ctorneys for the Applicants herein, hereby certify that on'May 27, 1986, I made service of the within document by mailing copies thereof, postage prepaid, to:
Peter B.
Bloch, Esquire Mr. James E. Cummins Resident Inspector Chairman i
Administrative' Judge Comanche Peak S.E.S.
Atomic Safety and Licensing c/o U.S. Nuclear Regulatory Board Commission U.S., Nuclear Regulatory P.O.
Box 38
~
Commission Glen Rose, Texas 76043 Washington, D.C.
20555 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 Atomic Safety and Licensing Atomic' Safety and Licensing Board Panel Appeal 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 Legal Director 1426 S. Polk Street
,exas 75224 T
U.S. Nuclear Regulatory
- Dallas, Commission 7735 Old Georgetown Road Room 10117 Bethesda, Maryland 20814
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y 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
,T, rial 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 Christic Institute 1107 West Knapp 1324 North Capitol Street Stillwater,. Oklahoma 74075 Washington, D.C.
20002
'Ms.
Billie Pirn.er 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 Oak Ridge National Laboratory Legal Director P.O.
Box X, Building 3500 U.S. Nuclear Regulatory Commission
, Oak Ridge, Tennessee 37830 Maryland National Bank Bldg.
l Room 10105 7735 Old Georgetown Road Bethesda, Maryland 20814 Nancy Williams Cygna Energy Services, Inc.
101 California Street Suite 1000 San Francisco, California 94111
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Ms 'G. Digfarf Jr.
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Exhibit y h~
TRIAL LAWYERS FOR Pusuc jusnCE, P.C.
COUN$tLLORS AT(AW SUITE 6t!
2000 P STREET. NORTHWEST N"HONYZ RosMAN WASHINGTON, D.C. 20036 (202)463-8600 u1CumtointCTon ARTHUR BRYANT swrAnomtY Biwtumt Dt*ICTOR. ItMRONMENTAL
%HISTUBLCmtA T1LOllCT auBana nArr June 2, 1986 OmCom KATHLIIN CUM 8CABATCH SECRITARY 4,
C. Jean Shoemaker Secretary to the Atomic Safety & Licensing
. Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 In: the Matter of Texas Utiliti:es Electric Company (Comanche Peak Steam Electric Station, Unit 1), No. 50-445-CPA
Dear Ms.. Shoemaker:
As directed by the Appeal Board's order of May 29,,1986, I am writing to inform you that I will be presenting oral argument on behalf of Citizens Association for Sound Energy and Meddie Gregory, intervenors in the above proceeding, on June 18, 1986.
Sincerely,
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M BEFORE THE UNITED STATES HUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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T'EXAS UTILITIES GENERATING COMPANY,
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Dkt. Nos. 50-445-CPA st ah
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(Comanche Peak Steam Electric
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Station, Unit 1)
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MOTION TO COMPEL In their Response to Intervenors' Proposed Discovery Plan, Applicants make clear that they do not intend to respond,o the t
consolidated Intervenors' discovery requests filed on May 15, 1
1986.
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Applicants take one.or all of the following indefe'nsible
. positions in support of their refusal:
1)
Until this Board establishes a discovery schedule, no party is entitled to file and receive discovery responses from any other party.
Response
10 CFR s2.740 authorizes commencement of discovery af ter the 52.751a prehearing conference, which this
' Board held on April 22 an'd with respect to which it issued an order on May 2, 1986.
10 CFR is2.740b and 2.741 authorize 1
Responses to the interrogatories were due on May 29th, and to the request for document production will be due on responses June 16th.
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diccovery by any party on any other party.
See alco 10 CFR s2.740(d).
A discovery schedule (which focusses on ending dates) is not a prerequisite to discovery.
See generally 10 CFR Part 2, i
Appendix A, para. IV.
i 2.
Even if discovery is permissible, Applicants may refuse to comply with a discovery request if they believe answering discovery would be " unduly burdensome and potentially wasteful" (Response, p. 5).
5 Responses bommission regulations do not establish "self-s help" as an acceptable defense to discovery.
Refusal to respond to discovery under si2.7406 and 2.741 must be in the form of an answer with objections or a motion for a protective order under 10 CFR 32.740(c).
Applicants have filed neither answers with objections nor a motion for a protective order.
3)
Any time an appeal is filed from an order admitting a party and one or more contentions, discovery is automatically stayed because the appealing party might prevail and make the discovery unnecessary.
Response
As Applicants well know, the requirements that to stay the effectiveness of any ' action by this Board must be met are set forth in 10 CFR 52.788.
See Opposition of Texas
. Utilities Electric Company, et al., to Request for Stay (2/13/86), pp.
4, et seg.
Applicants do not purport to even 2
address those requ'irements, much less meet them.
2 Since Applicants have disdained the Commission's procedures for objecting to discovery or seeking a stay of the effectiveness of the Board's Special Prehearing Conference Order, it should not
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2 Applicants' frivolous basis for refusing to respond to Consolidated Intervenors' discovery is made all the more egregious by the unique facts of this case.
Since Applicants i
1 already have the extension they seek and all efforts to stay its effectiveness have failed, a delay in responding to discovery by Applicants perpetuates their use of the improperly issued permit extension.
Thus Applicants find it to their advantage to delay this proceeding.
Such delay postpones the resolution of the issues involved here and allows Applicants to continue to redesign, reinspect, and reconstruct this plant without regard to Consolidated Intervenors' legitimate concerns about the propriety of the extension of time allowing such work to continue.
This Board should, as it would were the parties' roles reversed, take
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swift action to prevent Applicants from exploiting delay to their advantage.
We urge the issuance of an Order compelling Applicants.tg respond to t.he request for interrogatories within five (5) days of the order and the request for document production by June 16 or within five (5) days of the order, whichever is later.
. De permitted to benefit from its deliberate conduct by now being allowed to file such documents.
At this phase of the proceeding, Applicants' sole response should be limited to responding to this Motion to Compel.
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y Respectfully submitted, M
ANT 110NY Z.
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BILLIE P.
G E
Trial Lawyers for Public Justice 2000 P Street, NW, #611-Washington, D.C.
20036 (202) 463-8600 4
Counsel for Meddie Gregory M
ANITA ELLIS 426 S. Polk allas, TX 75224 (214) 946-9446
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Representative for CASE Da'ted:
June 2, 1986 e
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O UNITED STATES NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board i
In the Matter of
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TEXAS UTILITIES GENERATING COMPANY,
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Dkt. Nos. 50-445-CPA et al.
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(Comanche Peak Steam Electric
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Station, Units 1 and 2
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CERTIFICATE OF SERVICE I hereby certify that intervenors' MOTION TO COMPEL were served today, June 2, 1986, by first class mail, or by hand where indicated by an asterisk, upon the following:
Administrative Judge Peter Bloch*
U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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Dr. Walter H. Jordan 881 West Outer Drive Oak Ridge, TN 37830 Dr. Kenneth A. McCollom 1107 West Knapp Stillwater, OK 74075 Nicholas Reynolds, Esq.*
Bishop, Liberman, Cook, Purcell & Reynolds 1200 17th Street, NW Washington, D.C.
20036 Docketing &' Service Section Office of the Secretary U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
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Stuart Treby, Esq.
Geary S.
Mizuno, Esq.
Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Thomas G.
Dignan, Jr.*
c/o Ropes & Gray 1001 22nd St.,
NW, #700 Washington, D.C.
20037 Thomas G.
Dignan, Jr.
Ropes & Gray 225 Franklin Street Boston, MA 02110 t
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ANTHONY Z RO1 MAN
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