ML20199B297
| ML20199B297 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 06/10/1986 |
| From: | Gad R ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-595 OL, NUDOCS 8606170103 | |
| Download: ML20199B297 (15) | |
Text
_
[k RELATED CORKt.dt'UNULi%
g D
Filed:
June -M~,
1986 s.
..s l
UNITED STATES OF AMERICA
/'
'l f:
3 NUCLEAR REGULATORY COMMISSION
@4,j 1986" c before the g
anq, G'
'D ATOMIC SAFETY AND LICENSING BOARD M1
)
In the Matter of
)
)
Docket Nos. 50-445-OL TEXAS UTILITIES ELECTRIC
)
50-446-OL COMPANY et al.
)
)
(Application for an (Comanche Peak Steam Electric
)
Operating License)
Station, Units 1 and 2)
)
)
RESPONSE TO CASE RENEWED MOTIONS (1) FOR THE PROVISION OF DOCUMENTS AND (2) FOR DISCOVERY OF SCHEDULE DOCUMENTS Under date of May 27, 1986, CASE has filed an additional response to the Applicants' motion for establishment of a hearing schedule relating to the CPRT Action Plan Results Reports; nominally this is a response to the Applicants' response to CASE's response to that motion.1 Under the Rules of Practice, no reply 1" CASE's Motions and Response to Applicants' 4/17/86 Response to CASE's Objections to Motion for Establishment of a Hearing Schedule" dated and served 5/27/86.
(Hereinafter " CASE 5/27 Pleading.")
k Abu G
3 sos
o o
by the Applicants is in order absent leave.2 The Applicants see nothing in the document that warrants seeking leave to reply.
The CASE discourse, however, is also laced with l
motions, of which we have identified three.3 The first is a' motion in the nature of a motion to compel relating to five sets of interrogatories and document requests "Re: Credibility."
CASE 5/27 Pleading at 8.
The second, though not framed in motion language, seeks an order that the Applicants "immediately provide the Board will all such information."
Id. at 9-10.*
The third is a renewed motion to compel relating to Request 210 CFR sec. 2.730(c).
awe are not assisted in the process of extracting
" motions" out of argument by the pleading's title, which offers no hint as to what sort of -- or how many
-- motions should be combed for.
- The antecedent reference called by "such" is unclear, as was the scope of what it was that Applicants were supposed to be ordered to produce when the original motion was filed.
In addition to the other reasons why this motion should be denied, therefore, the motion fails to meet the requirement of 10 CFR sec. 2.730(b) that a motion "shall stabe with particularity the grounds and the relief sought."
The i
0 C
No. 11 of the S'eptember 4, 1985, set of document requests filed by CASE; this request was originally objected to by the Applicants and a motion to compel in respect of it was denied by the Board in its December 23, 1985, order.
The first of these three motions will be the subject of a separate response (if a response is ultimately required).
By this pleading the Applicants hereby respond to the second two motions and say that, for the reasons set forth herein, both motions should be denied.
4 W
vice of so generalized a pleading is compound: the Applicants are without notice of the particular items CASE has in mind sufficient to make a complete response, and the request. if allowed as prayed for, would be so vague as to be unenforceable.
This vice, we respectfully point out, is shared with the original
(
motion that the Board denied. i
ARGUMENT THE BOARD NOTIFICATION MOTION On August 19, 1985, CASE filed a motion entitled
" CASE Motion for Board to Order Applicants to Supply
[
Documents to Board."
In an unmanageably vague fashion, that motion sought.an order compelling the Applicants to supply to the Board "all the documents referenced in the CPRT Plan which have not yet been provided (but are promised at some future, unspecified time), as well as documents which Applicants are well aware the Board will want and must have before they can rule on Applicants CPRT Plan.
These include (but are not limited to): all contracts and all attachments to such contracts, letters of understanding, purchase orders, etc., between Applicants and their sub-contractors who will be involved in any way in the CPRT efforts; all resumes or such sub-contractors employees who will be involved in such efforts; how CYGNA Energy Services fits into Applicants' proposed scheme of things; etc."
8/19 Motion at 1-2.
On August 28, 1985, the Applicants responded to this most extraordinary pleading and pointed out why it must be denied.
On October 29, 1985, the Board did indeed deny this motion, with the following observation:
"Given the current status of the case, we seen no need to order Applicants to supply any documents to us.
We urge that Applicants and Staff examine documents as.
O k
they are" completed, however, from 'the standpoint of whether they have an important bearing on this case -- whether favorable or unfavorable to their position.
For example, a mechanism should be adopted by which the Board can be kept abreast of the complete, current CPRT Plan.
By serving important documents on us currently, the parties will enable us to keep abreast of our homework and help us to be prepared for the intense work that appears to be on the horizon."
Memorandum and Order (Status of Pending Motions)
(10/29/85) at 5 (emphasis added).5 5 The Applicants have neither forgotten nor failed to heed the Board's suggestion.
The Board members have been placed on controlled distribution for the CPRT Program Plan and amendments thereto, and on controlled distribution for the Action Plan Results Reports as they are completed.
In addition, the Board has been supplied with Securities Exchange Act filings when deemed to contain matters potentially of interest to the Board, of notices regarding changes in management personnel, and of notices regarding other completed or accomplished matters of which the Board should be generally aware.
None of this material is, of course, matter that has been offered into evidence, nor, indeed, until any of the CPRT Results Reports have been determined to be contested and submitted to the Board for resolution is there any item that is pending before the Board for decision.
But the Applicants have, nonetheless, strived to provide the Board, on a continuous basis, with precisely the sort of materials that the Board referred to in its October 29, 1985, Order.
O 9
With nary'a reference to the nature of the prior, rejected, motion or the text of the Board's prior order, CASE has now renewed the motion that the Applicants be directed to supply materials to the Board.
In the scant discussion supplied, CASE refers to items having to do with the on-going and yet uncompleted reassessment of large bore pipe design being pe* formed by Stone & Webster and the on-going and in-process cable tray and conduit work being performed by Impell and EBASCO.
Each of these matters is an item that is the subject of a CPRT Action Plan and each is a matter that, when completed, will be the subject of a CPRT Action Plan Results Report.
Perforce the Board's Memorandum; Proposed Memorandum of April 14, 1986, and the colloquy at the pre-hearing conference of April 22, 1986, each will be the subject of answers to the Board's fourteen questions after publication of the Results Reports.
Assuming that following consideration of the contents of the Results Report CASE wishes to contest either or both of these matters, each is a matter that at that time will be submitted to the Board for resolution.
With respect to each, at such time as it is submitted to the Board for resolution of a i
-b contest, the pa9 ties will have the opportunity to offer into evidence whatever material they feel is relevant and admissible on the contested questions of fact and, of course, the Board will have the opportunity to propound questions of its own (consistent with the Commission's Rules of Practice).
Finally and most importantly, neither of these matters is a completed item and neither has yet resulted in completed documents, as the Board used the terms in its Order of October 29, 1985.
Nor is there anything to the contrary or even surprising by virtue of the fact that, while this work is in progress, the Applicants have determined to replace hardware items.
s and was Such was contemplated in the Program Plan something of which the Board was aware when it wrote its Order of October 29, 1985.
See id. at 3-4.
The bottom line, rather, is that the pending motion is 6 See, e.g.,
CPRT Program Plan, App.
A, p.
14 (1/25/86).
The same provision was contained in the prior revision dated 6/28/85. '.
t
o nothing other than a belated sub silentio motion for reconsideration of the Board's prior order; in addition to being untimely, it adds nothing that is new and significant and it should be denied.
THE MOTION TO COMPEL REGARDING SCHEDULE DOCUMENTS Item 11 of the Document Requests filed by CASE under date of September 4, 1985, was in these terms:
"All documents which contain scheduling forecasts for implementation of any reinspection or corrective action program which were provided to outside consultants, the Securities Exchange Commission, the Department of Energy, and bond broker or other investors, potential investors or investment advisers the Board of Directors, other owners of Comanche Peak, any other government agency, or any state or local officials or employees."
Id. at 11.
The Applicants objected to this request on grounds of relevance on October 9, 1985.
The objection was argued during the pre-hearing conference of November 12, 1985 (Tr.
24184-89, 24199-203) and was ruled upon in the Board's order of December 23, 1985, as follows:
"We shall deny Request 11, dealing with scheduling forecasts, at this time.
However, should Applicants seek once again to persuade us of the need for expedition of this proceeding in order to meet its scheduling needs, we will require it to provide to CASE all of this requested 4
---..n.
informati$n and we will permit CASE an ample opportunity to. study the information before we reach any conclusions on the need for expedition.
Applicants may avoid delay that may occur in this manner by voluntarily furnishing this information at this time."
Id. at 3-4 (emphasis added).
The Applicants have provided the Board, consistent with the Board's admonition contained in the ord'er of' October 29, 1985, with a copy of an 8-K filed on 4/18/86.
See Tr. 24,359 (4/22/85).
The thrust of that public disclosure was a statement to the effect that, given the scheduling uncertainties regarding the completion of CPRT, and the concomitant scheduling uncertainties regarding issuance of an operating license for Comanche Peak, no projection of when'the unit would be in service could be made.
CASE's present motion is based on the stated premise that the Board should allow Request 11 "since Applicants are now pressing for expedition of this i
l proceeding 'u#
omply with their own schedule."
5/27/86
. Motion et 1 71.
Apparently, CASE's view is that the Eoard previously denied Request No. 11 subject to a
" condition subsequent," that the condition subsequent l
has occurred, and that the Request should now be i
allowed.
The fulfillment of the condition subsequent, we presume, is the filing of the Motion for a Hearing Schedule by the Applicants.
Prescinding from whether discovery regarding an applicant's schedule would be appropriate in any event,7 CASE is mistaken about fulfillment of the
" condition subsequent."
The Applicants have not taken and are not taking the position that the motion for establishment of a hearing schedule should be allowed
'Under the hypothesis on which this discovery request is now pressed, its asserted relevance is to a perceived basis for the Applicants' position on a question of scheduling.
As such, it has not been asserted to relate to the merits of any matter in controversy under Contention 5, but rather only to the collateral issue of scheduling.
Neither the NRC licensing boards nor the courts of general jurisdiction are in the habit, insofar as we are aware, of requiring full-blown litigation and the panoply of pre-trial procedures before a matter such as a scheduling motion can be decided.
Assuming that the question is ultimately a matter of forum discretion, we suggest that to require such procedures on collateral issues of this type is antithetical to common sense notions of l
efficiency, orderliness and the avoidance of unnecessary cost and expense.
Cf., " Statement of i
Policy on Conduct of Licensing Proceedings," CLI-81-8, 13 NRC 452, 455-56 (1981).
In any event, as noted in text, CASE has misperceived the basis for the Applicants' position and its argument therefore proceeds on an erroneous premise.
i I t i
O because of a "nEed for expedition of this proceeding in order to meet its schedule needs As is set forth in the 8-K, the Applicants do not know when CPRT will be completed, and this is hardly surprising given that the nature of the CPRT charter is that the investigation follows where it is led by its findings.
The Applicants have urged the Board to enter a scheduling order, rather, on the ground that there are portions of the CPRT results that are ready for litigation now (if CASE intends to contest them), that there is no reason for holding these completed results in abeyance, and that to do so will tend to produce unwarranted delay at the end of the process because of the queueing effect.
We have made no assertion of when the end of the process is, and the nature of CPRT is such that we cannot know, at this juncture, when the end of the process will occur with any certainty.
We do not have to know that, however, to know that there is no sound reason for not doing now what is presently doable or to know that the price of not doing now what f
is presently doable will be unnecessary and unwarranted l
delay at the back end.,
i l
I i
~
This being so, the pending motion should be denied on the ground that the " condition subsequent" the occurrence of which is its asserted predicate has not, in fact, occurred.
Conclusion For the foregoing reasons, the " motions" advanced in CASE's 5/27/86 pleading (1) for an order compelling the Applicants to provide documents to the Board and (2) to compel production of documents under Request 11 of the 9/4/85 set of document requests should each be denied.
Respectfully submitted, Nicholas S.
Reynolds William A. Horin BISHOP, LIBERMAN, COOK PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Suite 700 Washington, DC 20036 (202) 857-9800 Robert A. Wooldridge WORSHAM, FORSYTHE, SAMPELS &
WOOLDRIDGE 2001 Bryan Tower, Suite 3200 Dallas, TX 75201 (214) 979-3000 I
r O
l i
Roy P.
Lessy, Jr.
MORGAN, LEWIS & BOCKIUS 1800 M Street, N.W.
Washington, DC 20036 (202) 872-5000 Thomas G. Dignan, Jr.
R.
K. Gad III ROPES & GRAY 225 Franklin Street Boston 02110 (617 423-00 b' ~ ~~[
By i
6p/ III R.
K.
l l
l
i o
- CERTIFICATE OF SERVICE I,
Robert K. Gad III one of the attorneys for the Applicants
/0 herein, hereby certify that on June idr,1986, I made service of the within " Response to CASE Renewed Motions (1) for the Provision of Documents and (2) for Discovery of Schedule Documents" by mailing copies thereof, postage prepaid, to:
9$
Peter B. Bloch, Esquire Mr. James E. Cummins Chairman Resident Inspector 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 444 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 Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Stuart A. Treby, Esquire Det Mrs. Juanita Ellis Office of the Executive President, CASE c
l Legal Director 1426 S. Polk Street l
U.S. Nuclear Regulatory Dallas, Texas 75224 l
Commission j
Washington, D.C.
20555 t
I 1
4 i
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 MW Anthony Roisman, Esquire Joseph Gallo, Esquire Executive Director Isham, Lincoln & Beale Trial Lawyers for Public Justice 1120 Connecticut Avenue, N.W.
2000 P Street, N.W.,
Suite 611 Suite 840 Washington, D.C.
20036 Washington, D.C.
20036
% 44 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 Pirner Garde Mr. Robert D.
Martin Citizens Clinic Director Regional Administrator, Government Accountability Project Region IV 1901 Que Street, N.W.
U.S.
Nuclear Regulatory Commission Washington, D.C.
20009 Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 Elizabeth B.
Johnson Geary S.
Mizuno, Esquire Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P.O.
Box X, Building 3500 U.S.
Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Washington, D.C.
20555 Nancy Williams Cygna Energy Services, Inc.
101 California Street Suite 1000 San Francisco, California 94111 k
w - --
Robert K. Gad /tI
>4OLs b E-w%,,3 45 toe-n#pD
'~ B a %
l Ab /kb M MTS.
I