ML20205G789
| ML20205G789 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/04/1985 |
| From: | Dignan T ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#485-149 LBP-85-41, OL, OL-2, NUDOCS 8511130340 | |
| Download: ML20205G789 (15) | |
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- t. f 5 00LKETEC USNF.C Filed: November 4, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION [0CkT ffG A shhk,[
BRANCH before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
) -
In the Matter of )
)
TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL + OL-2 COMPANY, et al. ) 50-446-OL + OL-2
)
(Comanche Peak Steam )
Electric Station, )
Units 1 and 2) )
)
)
APPLICANTS' PETITION FOR DIRECTED CERTIFICATION OF LICENSING BOARD ORDER OF OCTOBER 31, 1985 To the Atomic Safety and Licensing Appeal Board:
Pursuant to 10 CFR S 2.718(i), and for the reasons hereinafter set forth, the applicants hereby petition for directed certification of an order of tne Atomic Safety and Licensing Board (ASLB) herein entered on October 31, 1985, a copy of which is attached hereto and marked "A".
8511130340 851104 PDR ADOCK 05000445 i G PDR Dss
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I. STATEMENT OF THE CASE l
The above-captioned operating license proceeding had its genesis in a notice published on' February 5, 1979, 44 Fed.
Reg. 6995, entitled " Availability of Applicants' Environmental Report, Consideration of Issuances of Facility Operating Licenses, and Opportunity for Hearing".
Thereafter on March 9, 1979 the Chairman of the Atomic Safety and Licensing Panel issued the notice establishing the Licensing Board which now presides in what is sometimes referred to as the " main docket" in this proceeding.
'441 Fed. Reg. 15813 (March 15, 1979). The operative language st'ated that that Licensing Board was:
"being established . . . to rule on petitions for leave to intervene and/or requests for hearing and to preside over the proceeding in the event that a hearing is ordered."- Id.
Some five years later on March 30, 1984, the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel issued the notice which created the Licensing Board which presides over " Docket-2" in this proceeding.
49 Fed. Reg. 13613 (Apr. 5, 1984). This-notice stated that the new Licensing Board was being established " pursuant to",
inter alia, ". . . the request of the Atomic Safety and Licensing Board already established to preside in this operating license proceeding:"
r.. .
,- . .. to preside over the proceeding on all allegations of intimidation and harassment." Iji. (emphasis added)
There~ remains only a single contention to be' litigated
-at this juncture in this proceeding limited by its terms to the assertion-that poor QA/QC and construction practices
, have raised; questions as-to the " adequacy of construction."-
-The Docket 2 Licensing Board was established to deal with allegations regarding harassment of, and intimidation of,
.QA/QC inspectors during construction. The two Licensing r Boards have two-Judges in' common; Judge McCollom' sits only on the main docket. Board; Judge Grossman sits only on the Docket-2 Board.2 Disputes had arisen between the parties as to what.was the proper scope of discovery and evidence as between the two dockets. As a result, on October 18, 1985 in an off-the-record-telephone conference, the parties were requested to " respond" to the following statement:
This is a single case: (a).in which l CASE's representatives should make a good faith effort to coordinate their discovery activities; (b) in'which
! ApplicantsLshould provide more specific 1
1 The respective make-ups of the Boards mean that the main docket Board has the:more traditional membership of two
" technical" and one " lawyer" judges; the Docket-2 Board has two " lawyer" members with Judge Grossman being designated'as the " alternate chairman" 49 Fed. Reg. 13613. Two of CASE's representatives (Mr. Roisman and Ms. Garde) have appeared only in Docket 2 and confine themselves to activities in that docket; another CASE representative (Ms. Ellis) handles matters in the main docket.
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responses-to discovery, identifying prior = responses.whenever they believe that they have been subject to a redundant request, and (c) in which<
objections as tourelevance may not be restricted to relevance to a.particular
. docket.'"
Applicants and Staff each responded,2 and the intervenor CASE responded twice - once in each docket.a In response to those-filings, both Licensing Boards jointly issued the
' Memorandum and Order here'in question. Texas Utilities Electric Company'(Comanche Peak Steam Electric Station),
.LBP-85-41, 22 NRC (Oct. 31, 1985) ( Exh. - A) . After reciting.some background and quoting the statement as to which responses had been-requested, the Licensing Boards went on to state:
" Applicants disagree that this is a single case. To the extent that there are-two. separate Boards.with separate jurisdiction, based on the Notice of Hearing for each case, Applicants are correct. However, as other parties have pointed out,' the cases.are richly-intertwined. As.a consequence there are matters occurring in one docket that may be relevant to the other' docket. To that extent, the-two Boards agree.that
' discovery requests filed in one docket shall be deemed to be filed in the other
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2 ApplicantsBrief in Response to Conference Call of October 15, 1985 (Oct. 23, 1985); NRC Staff's Response to Licensing Board Questions Raised During October 15, 1985 Conference Call (October 25, 1985).
8
, CASE's (Main' Docket) Response to Board's 10/15/85 Request Regarding Discovery Matters (Oct. 26, 1985);
' CASE's Response to Questions Raised by Board During Conference Call on October 15, 1985 (Oct. 28, 1985).
' docket as well. Hence it will not' be necessary.for either Board to make narrow procedural rulings.whose only consequence would be refiling in the
,i other docket." Exh. A at 2.9 -
Thereafter,Lthe Boards observed th'at " materia? in one-
. docket may.b'e' relevant to the.other" and after giving
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examples of such possible situations, went on to say:
'"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. -Hence, there.will be.no fair notice problem.
i Lawyers in both dockets must, therefore,
~
be alert to implications for the other docket. We will-consider evidence relevant to one docket to be available for citation in the other docket, providing that it is relevant to the issues in the second docket." Exh. A at 3 (emphasis supplied).
In a footnote appended to the first sentence of the above-quoted paragraph the Board stated:
"Given the way in which the Boards have
' determined that this case may be considered a single case for purposes of 4 discovery, there is no need for us to clarify the scope of Docket 2, as Staff requests, Docket 2 deals with harassment and intimidation -- terms bearing a natural meaning. We also recall having l
- ~ The statement " Applicants disagree that this is a single case" overstates the thrust of the applicants' position.
Applicants noted in their brief the fact that the word l
" case" has many meanings, but concentrated on that i definition which dealt with the concept of jurisdiction.
Indeed,' Applicants' response nowhere takes any position as to whether there is or is not a " single case". See ApplicantsBrief cited n.2 supra, a copy of which is attached hereto and marked "B".
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commented on the meaning of these terms previously." Id.
II. REASONS FOR GRANTING THE PETITION At the. outset, the applicants are only too aware that as of this writing there is another applicants' petition for
-directed certification pending before this Appeal Board.
_The applicants are not engaged in any tactic of "taking the Licensing Board up" on every order with which applicants disagree. However, the order at issue, like the one now sub judice this Appeal Board, is, in our judgment, one which also " affect [s] the basic structure of the proceeding in a pervasive or unusual manner." Public Service Company of Indiana-(Marble Hill Nuclear Generating Station), ALAB-405, 5 NRC 1190,'1192-(1977). As will be seen below, the Licensing Boards, although paying lip service to the jurisdictional principles which govern NRC adjudicatory tribunals, are in fact wholly ignoring them. The legal effect of this activity is to strip the applicants of important procedural rights, and the practical effect will be to reduce.this proceeding to procedural chaos and assure
'that when, as and if this case ever comes to this Appeal Board on its merits, the record will be incomprehensible.
Almost ten years ago, an Appeal Board succinctly stated the scope of jurisdiction of NRC adjudicatory tribunals:
" Congress has vested' authority to administer the licensing provisions of the Atomic Energy Act in the Nuclear
.. ,. . \
-Regulatory Commission. The Commission
~in turn is~ authorized by that Act to
.-have atomic safety and licensing boards preside over adjudicatory proceedings, which. boards may be convened 'to conduct such hearings as the Commission may direct.' Thus, like ourselves, licensing boards 'are delegates of.the Commission an exercise only those powers which the Commission has given (them].'"
Public Service Company of Indiana, Inc.
.(Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170 (1979) (footnotes omitted).
The scope of'that jurisdiction for any. Licensing Board is to be found in the Federal Register Notice which creates it. .
Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 NRC 335, 339 (1983);
Commonwealth Edison Co. (Zion Station, Units 1 and 2),
ALAB-616,-12 NRC 419, 426 (1980); Carolina Power & Light Co.
-(Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4),
-ALAB-577, 11 NRC 16, 25, reversed in part other grounds, CLI-80-12, 11 NRC 514 (1980).
.By any reading, the scope of the jurisdiction of the
' Docket-2 Board herein is extremely narrow. It is to
" preside over the proceeding on all allegations of intimidation and harassment", and that is'all. The Boards state in the order that:
" Docket 2 deals with harassment and intimidation -- terms bearing a natural meaning."
To begin with Docket 2 deals only with " allegations of harassment and intimidation", i.e. hear and resolve issues raised by those individuals known as "allegers". In any Q
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/ event, applicants too believe " harassment and intimidation" are " terms bearing a natural meaning." They mean in this proceeding whether QA/QC inspectors were yelled at, threatened, physically abused or otherwise frightened out of
-doing their job. It certainly does not mean whether certain welds are or are not good, whethe.r a piping design is appropriate, etc. And yet by this order over 12,000 pages of transcript and over 1,000 proffered exhibits devoted to hardware issues tried before Docket 2 was created, have been swept into the ken of the Docket-2 Board.
The' sweep of this Order can be illustrated by an example: The following interrogatory is now deemed filed (and therefore, by law, relevant, 10 CFR $ 2.740(b)(1)) to Docket-2:
"E-30. Will any welds other than non-pressure boundary ASME-NF and AWS be reinspected as part of the CPRT effort?"
CASE 8/27/85 Interrogatories No. E-30.
The relevance of a question about future activities of the CPRT to the harassment and intimidation allegations, all of which deal with the past, would seem to be tenuous indeed.
Yet that is the state of the record if this order is permitted to stand.
However, the major detrimental consequence of this order is not found in its discovery aspects. Indeed, were these rulings confined to discovery matters, applicants would not approach this Appeal Board given the long line of decisions
/ to the effect that discovery rulings are seldom, if ever, fit candidates for directed certificaton. E.g., Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-318, 3 NRC 186 (1976); Long Island Lighting Co.
(Shoreham Nuclear Power Plant, Unit 1), ALAB-780, 20 NRC 378, 381 (1984); Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), ALAB-608, 12 NRC 168, 170 (1980).
The real problem is the Licensing Boards' avowed intention of simply allowing parties, after the evidentiary hearing is over, to decide in which docket it will, advance what avi dence. There can be no doubt this is the plan, if not halted by this Appeal Board. The Licensing Boards have stated:
"The extent to which a party relies on evidence in the other docket will be revealed when the party files proposed findings of fact. Hence there will be no fair notice problem." Exh. at 3.
Under this rule applicants will not know whether fact "X" admitted in the main docket is to be used to prove harassment and. intimidation until CASE files its proposed findings of fact after the hearing record has closed. What then? Do applicants then file a post-hearing " objection" in that_ docket, a procedure unknown to NRC practice? If the objection is overruled, must applicants leave the fact unrebutted in that docket or move to reopen? It does no good to say that applicants would be free to bring in rebutting evidence from the other docket, because in the l
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. . context of a hearing that muy have taken place two years ago b .in the main docket relating to fact "X", while trying the adequacy of a weld, or of concrete, or of some other technical issue, fact "X's" significance to harassment and intimidation may.have be.n wholly unapparent, and, in any event, could not have oeen rebutted from that context because it did not arTect the technical issue then at hand.
The process envisionec by the Board for the future conduct of the case is no less unfair or unworkable. The NRC has recently investigated hundreds of technical allegations
- under the auspices of its Technical Review Team. Some of those allegations are likely to be the subject of litigation in the main docket, some will not. Where litigated, however, the issue will be a technical one, concerning whatever technical implications might exist and might be pursued by CASE's representative in the main docket. Where not litigated,-at least the existence of the allegations is likely to be included in the main docket record, through the Staff's SSER's. Simply to tell lawyers in this setting to "be alert to implications for the other docket," regardless of whether the matter is even litigated by CASE's representative in the main docket is to attribute mental powers to lawyers that transcend even those of a deity. It will not work.
What will happen is that there will be a large amorphous record created with an undue amount of paper devoted to
B.* what.is,'or is not, in where. And, as sure as the sun rises '
in the east, this Appeal Board will receive a " record" on appeal that will rival a Chinese Puzzle in its twists, turns -
and intricacies. None of this is necessary. By simply following "the rules" of the adjudicatory process and confining'the-Boards to their respective scopes of jurisdiction, all_this can be avoided. Because the limits the Boards have transgressed are jurisdictional, it must be avoided.
It may be argued that the foregoing is unnecessarily legalistic. That argument should be addressed to Congress or thS Commission. For better or worse NRC licensing proceedings are adversary and adjudicatory. They are the exercises of the legal-profession; they are required to be conducted by the rules. And no more fundamental rule exists-in jurisprudence than the one that a tribunal is powerless beyond the scope of its jurisdiction.
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.- CONCLUSION The petition should be granted. The Licensing Boards should be instructed to conduct their activities as separate entities within'their respective jurisdictions and to rule accordingly.
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) 748-9365
'Roy P. Lessy, Jr.
MORGAN, LEWIS & BOCKIUS 1800 M Street, N.W.
Washington, DC 20036
_(202) 331-2706 Thomas G. Dignan, Jr.
R. K. Gad III ROPES & GRAY 225 Franklin Street Boston, MA 02110 (617) 423-6100 e
Th'5 mis G.' Dig'adff, Jr.
4 UNITED STATES OF AMERICA LBPh41 k
NUCLEAR REGULATORY COMMISSION .
Before Administrative Judges: [:97J %v .3 l ]<
Peter B. Bloch, Chairman b .r E
\
Dr. Kenneth A. McCollom <
Dr. Walter H. Jordar. .' f;l ;..'M, W Herbert Grossman, Esq. -
SEkvtu NOV -11985
)-
In the Matter of Docket Nos. 50-445-0L & OL-2 50-446-OL & OL-2 TEXAS UTILITIES ELECTRIC COMPANY, et al.
(Comanche Peak Steam Electric Station, )
Units 1 and 2) )
) October 31, 1985 MEMORANDUM AND ORDER MEMORANDUM (Procedural Rulings; Board Concern About QA for Design)
This Memorandum addresses issues raised in the course of the discovery process that is underway and it also raic s a Board concern arising out of a Board notice of a meeting between Staff and the Appli-cants about pumps and valves.
I. Procedural Matters On 0ctober - 25 to 28 the parties responded to discovery matters raised by the Board in an off-the-record telephone conference held on October 15, 1985. In that conference, the Boards asked the parties to respond to the following statement:
This is a single case: (a) in which CASE's representatives should ;
make a good faith effort to coordinate their discovery activities; l (b) in which Applicants should provide more specific responses to discovery, identifying they have been subject prior to aresponses redundantwhenever they (believe request, and that c) in which is u Arn n A WY $ L
.%r*r~ G ,
F' g Procedural Rulings; Concern: 2 objections as to relevance may not be restricted to relevance to.a particular docket.-
' Applicants disagree that this is a single cas'e. To.the extent that
-there are two separate Boards with separate jurisdiction, based on the -
~
Notice of Hearing for each case, Applicants are correct. Hor:ever, as other parties have pointed out, the cases are richly intertwined. As a consequence there are matters occurring in one docket that may be .
. relevant to the other docket. To that extent, the two Boards agree that.
. discovery requests filed in one docket shall be deemed to be filed in the . other docket. as well . Hence it will not be necessary for either Board to make narrow procedural rulings whose only consequence would be refiling.in the other docket.
With respect to evidence, it also is cbvious that material in one docket may be relevant in the other. The Board has discussed this question with respect to paint quality assurance, for example. To the extent that there may be a pervasive breakdown in paint quality assur-
- ance, this appears to be relevant to the question 'of whether paint quality assurance inspectors or Mr. Lipinski may have been subjected to harassment or intimidation. Thus, technical questions in docket 1 may bear on issues in~ docket 2.
Since the dockets are factually intertwined, a party ray wish to rely on evidence from the other docket. We consider it preferable to permit such reliance rather than to require refiling the evidence in the second docket.
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.s -
.. l Procedural Rulings; Concern: 3 l
-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.1 Hence, there will be no fair -notice problem. Lawyers in both dockets must, therefore, be alert to implications for the other docket.
We will consider evidence relevant to one docket to be available for citation in the other docket, providing that it is relevant to the issues in the second docket.
We note that both parties have multiple representatives who should
[ -coordinate their discovery activities, including their responses to discovery. Similarly, both parties should identify particular prior responses when they respond to an interrogatory or document request by claiming to have responded to discovery in the other docket.
To the extent that Applicants have objected to discovery requests because they refer to documents not yet in existence, we do not expect to honor that objection. If there are no documents of a requested type available, Applicants should say so. Then, given the gradually unfolding nature of this case, they should update their response periodically until the period of discovery is closed by Board order, pursuant to this Order of the Board and to 10 CFR 52.740(e)(3).
I Given the way in which the Boards have detennined that this case may be considered a single case for purposes of discovery, there is no need for us to clarify the scopa of Docket 2, as Staff requosts.
Docket 2 deals with harassment and intimidation -- terms bearing a natural meaning. We also recall having commented on the meaning of ;
these terms previously.
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. I Procedural Rulings; Concern: 4 l
We continue to encourage cooperation among the parties concerning the . informal exchange of information. To the extent that any of the parties have objected 'to the . participation of other parties in meetings to exchanga information, we are hopeful that a more cooperative attitude may prevail in the future. Each of the parties has demonstrated the ability and willingness to participate in constructive dialogue. We are hopeful that each of the parties will keep this in mind and will not only encourage cooperation but will seek to learn from and benefit from the contributions of the other parties.
In the interest of efficiency, we require parties faced by a discovery request considered to be overly broad to explain why the request is too broad and, if feasible, to interpret the request in a reasonable fashion and to supply documents (or answer interrogatories) within the realm of reason.
II. Stress Allowables for Active Valves The Board in the principal docket has discussed the Summary of Meeting Held on September 17, 1985 - for NRC/TUGC0 to Discuss the Potential Deviation from FSAR Commitment on Stress Allowables for Active Valves (filed with us October 17, 1985). We are concerned tl It the problem discussed in that meeting should be pursued further with respect
.to the Board' s findings on Quality Assurance for Design, cnt forth in LBP-83-81, 18 NRC 1410, 1428 (1983); LBP-84-10, 19 NRC 509, 513 ("There has been no recognition that errors in design documents are an indepen-dent concern, regardless of whether they may be corrected before the m
q,. .
Procedural Rulings; Concern: 5 l plant' is completed. . . . Although errors may be made, significant .
errors .. . . should be promptly identified, ' documented,' and corrected
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with reasonable speed.")
In particular, we are concerned that there may not have been a procedure to document deficiencies in ' specifications detected by ven-dors,;that there apparently was no documentation of or prompt follow-up of such deficiencies in this instance and that whatever system existed to control the quality of design documents did not detect that specifi-cations had deviated from FSAR commitments. We expect the Applicants or the Staff to investigate the implications of these problems for the adequacy of the system for controlling the quality of design documents. <
0RDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 31st day of October 1985 ORDERED:
- 1. Discovery requests filed in one docket shall be deemed to be filed in the other docket as well.
- 2. Evidence relevant to one docket is available for citation in the other docket.
- 3. Both parties have multiple representatives who should coordi-nate their discovery activities.
Procedural Rulings; Concern: 6
- 4. Both parties should identify particular prior responses when they respnnd to an -interrogatory or document request by claiming to have responded to discovery in the other docket.
- 5. Parties faced by a discovery reque'st considered to be overly broad should explain why the request is too bro ~ad and, if feasible, should interpret the request in a reasonable fashion and supply docu-ments (or answer interrogatories) within the realm of reason.
- 6. To the extent that this Order affects the validity of discovery responses or objections that have already been filed, a party may promptly file an amended response.
FOR THE ATOMIC SAFETY AND LICENSING BOARDS
- l. , i Peter B. Bloch~, Chairman
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ADMINISTRATIVE JUDGE Bethesda, Maryland l
t i
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i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION !
l
.before the ATOMIC SAFETY AND LICENSING BOARD 1
l
)
In the Matter of ) .
)
TEXAS UTILITIES GENERATING ) Docket Nos. 50-445-OL and OL-2 COMPANY, et al. ) 50-446-OL and OL-2
)
(Comanche Peak Steam Electric )
Station, Units 1 and 2) )
)
)
APPLICANTS' BRIEF IN RESPONSE TO CONFERENCE CALL OF OCTOBER 15, 1985 In a conference call held October 15, 1985, the Boards ordered the parties to file a brief with respect to two c.
matters. Herein the applicants respond to that order.
Item 1 - The Statement The first item as to which a response is required is the applicants' position with respect to the following statement:
"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 specific responses to discovery, identifying prior responses whenever they believe 3
.wum vai, . _ . ..
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they have been subjected to a redundant request and (c) in which objections as to relevance may not be restricted to relevance to a particular docket."
The first matter which merits discussion (and the resolution of which virtually controls any position on the remaining parts of the statement) is whether or not the major premise of the statement ("This is a single case") is correct. The word " case" is defined in Black's Law Dictionary as:
"A general term for an. action, cause, suit, or controversy, at law or in equity; a question contested before a court of justice; an aggregate of factc which furnishes occasion for the exercise of the iurisdiction of a court of justice." (Emphasis added.)
By setting forth a portion of the foregoing definition with emphasis, applicants are focusing on that attribute of NRC proceedings which we believe to be most pertinent in analyzing the. statement as a whole. Whether or not what we have here is a single case (or in NRC parlanca " proceeding")
being conducted by two different Boards or two proceedings conducted by two different Boards, one cannot gainsay the fact that there are two different Boards. Each of these Boards is a tribunal of limited jurisdiction and in each case the limits of the jurisdiction given the Board by the Commission are as defined in the Federal Register notice of its establishment. E.g., Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
1 ALAB-316, 3 NRC 167, 170-71 (1976); Wisconsin Electric Power I
_2_
~ ' ' '
Co.-(Point Beach Nuclear Plant, Units 1 and 2),-ALAB-739, 18 NRC 335, 339 (1983).
In the case of the Docket 2 Board, that jurisdiction is
~ 1imited to~"all allegations of-intimidation or harassment".
That Board is without jurisdiction, i.e., without power, to deal with anything else. Its actions directed'at any subject other than allegations of intimidation and harassment are voidable-if not void ab initio. This means, as a matter of' law, that t'eh Docket 2 Board cannot rule on .
discovery directed at matters not involving harassment and intimidation, and the Docket 1 Board is without power with respect to matters which do involve allegations of i
harassment and intimidation.
While, at first blush, the rigid adherence to the jurisdictional principles outlined above may seem to be i
- hyper-technical and legalistic, such adherence, in addition 4 to having the fortunate attribute of being legal, also will have a beneficial practical effect in this proceeding. If the CASE personnel working on Docket 2 inadvertently propose an interrogatory which is not relevant to that docket, applicants will object and be sustained, the interrogatory -
l may then be given over to the personnel working on Docket 1, who will have the necessary background to know whether (a)
I the request is in fact duplicative of what has already been requested-'in that docket and (b) whether, assuming it is i
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-. . . . ..., _.. ~ - _ . _ - - , . . . . . . , , , - . . . . - , , . . , -.__,.,%_,_,, -_.,y ,, . , _ _ , , , , , _ ,,.m__ .. - - , . , ,.,
not, pressing such an inquiry has value to CASE in that
' docket . -
In addition,, adherence to these jurisdictional principles avoids even the potential that the two Boards could arrive at different or inconsistent results on the same issue. This would only occur,'of course, after Applicants had been faced with prehearing and/or hearing procedures in'the same matter raised by the same intervenor but before two different tribunals. .
Turning now to the remainder of the statement and in light of the foregoing, it is the applicants position (and, indeed, assumption) that CASE should and will coordinate its discovery activities; if and when an occasional error is made and discovery is requested in the wrong docket, applicants have a legal right to object and require formal refiling in the other docket and will continue to exercise that right. Furthermore, applicants understand, and will meet their obligation to point out where the requested information has already been provided if the objection is ;
i one in the nature of " asked and answered".
Item 2. The Prehearing I oral discussion of specific objections to discovery is generally an exercise in futility and a waste of the tribunal's time. Objections should be made in writing and the discoveror should then make a motion to compel in the usual course in writing; the objector argurs against the 4_
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. -, ~n-- ---.-- n - - - - - -- --
o motion in writing and the Board rules. 10 CFR $ 2.740(f).
In short, assuming adherence to the jurisdictional
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principles outlined above, and assuming there will not be oral argument before the Board-on those principles and the Board will rule' thereon there is no need, in our view, for a prehearing conference on specific. discovery requests. These as well as motions to reconsider etc. can be dealt with 4
under the rules as required. .
i Respectfully submitted, ,
Nicholas S. Reynolds
- j. 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).748-9365 Roy F..Lessy, Jr.
. 1800 M Street, N.W.
Washington, DC 20036 (202) 331-2706
. Thomas G. Dignan, Jr. ,
R. K. Gad III ROPES & GRAY l 225' Franklin Street Boston, MA 02110 (617) 423-6100 By(ThomKE~~C. DignK Jr.
CKKETED USMC CERTIFICATE'OF SERVICE
- '85 NOV 12 A10:51 I, Thomas G.~ Dignan, Jr., one of_the attorneys for the
' Applicants herein, hereby certify that on November 5, 1 E O# SECRETAf" I made ' service of the within document by mailing copies %(('[ETg . E?vn 1
thereof,-postage prepaid, to:
- Peter B. Bloch, Esquire
- Herbert Grossman Chairman Alternate' Chairman Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington,'D.C. 20555 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 17830 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 *Mrs.-Juanita Ellis Office of the Executive President,' CASE Legal Director 1426 S. Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission 7735 Old Georgetown Road
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