ML20206J447

Opposition of Consolidated Intervenors to Applicant Motion for Stay of Discovery Pending Resolution of Appeal.Motion Should Not Be Granted,Per 10CFR2.788(e).W/Certificate of Svc.Related Correspondence

ML20206J447
Person / Time
Site:	Comanche Peak
Issue date:	06/19/1986
From:	Ellis J, Roisman A Citizens Association for Sound Energy, CONSOLIDATED INTERVENORS, GREGORY, M., TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#286-732 CPA, NUDOCS 8606270171
Download: ML20206J447 (12)

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Mtt AMO QRflMNhu,g g BEFORE THE UNITED STATES #

NUCLEAR REGULATORY COMMISSIOt 6; J(Jp; g 3 .

BeforetheAtomicSafetyandLicensingAhheabNrdh ry w,

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In the Matter of )

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TEXAS UTILITIES GENERATING COMPANY, ) Dkt. Nos. 50-445-CPA E n n- )

(Comanche Peak Steam Electric )

Station, Unit 1) )

l OPPOSITION OF CONSOLLDATED INTERVENORS TO APPLICANTS' MOTION FOR STAY OF DISCOVERY PENDING RESOLUTION OF APPEAL A. Applicants' Motion Should Be Denied Because It Violates NRC Procedures.

1.

Applicants' Motion Is An Impermissible Request To Stay the Effecti'/eness of the May 2 Order.

On May 2, 1986, following a prehearing conference as reqaired by 10 CFR 32.751a, the Licensing Board (the Board) issued a Special Prehearing Conference Order admitting Petitioners Citizens Association for Sound Energy (CASE) and Meddie Gregory as intervenors (Consolidated Intervenors), granted a nearing on a part of their contentions, and directed them to file a discovery plan, to which other parties were permitted to respond as if it were a motion. At this point, any party could open discovery, since the requirements of y2.740 had been met.

Applicants argue that the call for a discovery plan in the May 2 Order infers that Intervenors were deprived of the rights conferred by 52.740. This argument cannot be accepted. Surely an unstated inference cannot deprive a party of a right conferred by a regulation. The purpose of the schedule was to set an 8606270171 860619 PDR ADOCK 05000445 G PDR

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1 I ending date for discovery.

On May 12, 1986, the Applicants appealed the May 2 order.

If they wanted to request a stay of discovery or any other aspect of the implementation of the May 2 order, 92.788 gave them the option of doing so at that point, but set a time limit of ten days after service of the May 2 order. The Applicants did not request a stay within the required time.

2. Applicants Failed to Pursue Available Alternative Procedures to Postpone Discovery.

On May 15, 1986, the Intervenors filed a Proposed Discovery Plan to which they attached a set of Interrogatories and a Request for Production of Documents. At this point, the Applicants had another chance to obtain relief under the rules.

Under 10 CFR 92.740(c), they could have moved for a protective order if they felt that the Intervenors' requests for discovery, or the deadline of 30 days were unduly burdensome or oppressive.

Again the Applicants failed to use the procedure available to them.

Instead, on May 27, 1986, they included in their Response

+o Intervenors' Proposed Discovery Plan a statement that they did not intend to respond to the Intervenors' discovery requests .

< until the Board established a specific timetable requiring them to do so. Applicants' Response to Intervenors' Proposed Discovery Plan at 4, fn 4. As their justification for refusing to respond, they said that discovery should not begin until their 1

Although the schedule adopted,by the Licensing Board in its June 6 Order indicates that discovery commences on June 6 (language suggested by the Staff), it clearly accepted the ,

l premise that the right to start discovery had begun with the May 2 order, since it enforced the deadline for responding to the May 1S discovery.

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i appeal of May 12 had "run its course." They suggested that 4

discovery before this point would be " unduly burdensome and 4

potentially wasteful." Id. at 5. While the Applicants had every right to request a protective order to relieve them of unduly burdensome discovery, they did not have a right to make a unilateral decision not to respond.

In response to Applicants' statement that they did not intend to comply with the discovery requests, the Intervenors filed a Motion to Compel on June 2, 1986. On June 6, 1986, the Board issued a Memorandum and Order adopting a modified version of Intervenors' Proposed Discovery Plan and including a schedule j

requiring the Applicants to answer the Intervenors' previously 4

filed discovery by June 16. The Board noted that Applicants had not filed a stay request and rejected Applicants' unilateral decision to halt discovery.

1 To the extent Applicants' stay request is focussed on the May 15 discovery and their view that they only had 10 days to 4

respond, it is now moot since they did respond (albeit inadequately) to the discovery request on the date due. Response of TUEC, et al., to Interrogatories and Requests for Documents Filed by Meddie Gregory Under Date of May 15, 1986, and Motion

! for Protective Order.

3.

Alternatively, Applicants' Motion Is Procedurally Flawed If It Is a Request to Stry the June 6 Order.

If Applicants' motion is not viewed as an inappropriate

attempt to stay the May 2 Order, then it is an impermissible motion'for a stay of the Board's order of June 6. The Appeal l

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Board has stated that "Laas we read the applicaole Rule of Practice (10 CFR 2.788), the right to seek stay relief is conferred only upon those who have filed (or intend to file) a timely appeal from the decision ot; order sought to be stayed."

Portland General Electric Co. et al. (Trojan Nuclear Plant),

ALAB-524, 9 NRC 65, 68 (1979) (emphasis added). Applicants have not filed an appeal of the June 6 Order. In fact, the June 6 order cannot be appealed, because it is not a final order. 10 CFR 92.730(f) states that no interlocutory appeal may be taken from a ruling of the presiding officer unless the presiding officer decides to refer it, which the Board in this case did not 2

do and was not asked to do.

It.is well established that, except under unusual circumstances, none of which are present here, discovery orders are interlocutory and will not be reviewed before the end of a case. Consumers Power Company (Midland Plant, Units 1 and 2),

ALAB-634, 13 NRC 96, 98 (1981); houston Lighting and Power Co. eti al. (South Texas Project, Units 1 and 2), ALAB-639, 13 NRC 469, 472 (1981).

Thus the pending motion cannot be a legally permissible motion to stay the effectiveness of the June 6 order since Applicants neither filed nor could have filed an appeal from that 2

In his order of June 6, Judge Bloch stated that only a stay granted by the Appeal Board would attenuate the Applicants' obligation to respond to discovery by June 16. This statement cannot be taken as a referral of the order to the Appeal Board for review. But even when licensing coards have made such referrals, the Appeal Board has generally refused to review discovery orders such as this one. See, e.g., Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-634, 13 NRC 96, 98 i

(1981).

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3 order, and thus they cannot seek a stay of that order.

B. The Applicants' Request Does Not Meet the Requirements for a Stay.

Section 2.788(f) lists the four factors the Board should consider in determining whether to grant or deny an application for a stay pending appeal. As the Applicants point out, a most significant factor is the presence or absence of irreparable injury to the party requesting a stay. Applicants' Motion for Stay of Discovery at 5. A stay will very seldom be granted unless irreparable injury can be shown, and the burden of demonstrating irreparable injury rests with the moving party.

Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-81-27, 14 NRC 795, 797 (1981). The Applicants also concede that " mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of the I

stay, are not enough" to show irreparable injury. Applicants' Motion at 5, citing Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621, 628 (1977). The Applicants admit in addition that they will not suffer any type 3

This does not mean that discovery may never be stayed. Had j

Applicants filed a valid request for a protective order, then,

' following the denial of that request, they could have sought a stay of the effectiveness of the denial from the licensing board, sought to have the issue referred , and if necessary sought directed certification. If the stay were denied, they could seek a stay from this Board pending resolution of the directed certification question. These are not mere procedural niceties.

If followed, they would have assured a full airing of the issues and an opinion on them by the licensing board before the issue reached this Board. This is an Appeal Board. Applicants are treating it as though it were established to hear issues in the first instance. That is a serious perversion of the regulations.

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of injuries other than the expenditure of money, time, and energy. Applicants Motion at 5. In other words, they concede that they have not suffered irreparable injury. Moreover, one aspect of the injury they claim, namely the need to answer interrogatories within ten days, was caused by their own refusal l

to comply with the discovery request when it was made, at which 4

time they had 30 days to respond.

Applicants argue that the " rigors of continuing with litigation" are the only injuries that could result from refusing to stay a decision pending a 92.714a appeal, and thus, unless there are adequate irreparable injuries, no stay of discovery can l

ever be obtained when a 92.714a appeal is filed. Applicants' Motion at 5-6. This is true of all efforts to appeal or stay '

discovery, which is why this Board has been particularly reluctant to even review, much less stay, discovery orders. See

p. 4, supra.

Moreover, if this argument has any validity, it can only be in circumstances where the burden of continuing litigation is truly extraordina r. Such is not the case here, and Applicants do not allege t the contrary.

When irreparable injury is lacking, "the movant must make an 1

' overwhelming' showing that he will succeed on the meritu of the i

appeal." Florida Power and Light Company (Turkey Point Nuclear i

Generating Station, Units 3 and 4), LBP-81-30, 14 NRC 357 (1981).

i j 4 Applicants emphasize the burdensome nature of this deadline as an additional reason for granting relief. As discussed above, the appropriate response on their part would have been to file for a protective order, not a 52.788 stay, or seek an extension of time to respond.

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The Appeal Board now has the briefs and oral arguments of the porties, which constitute the best evidence that the Licensing Board was correct in its decision to admit the Intervenors.

Tne remaining factors specified in 92.788(e) will not determine a case such as this one, where irreparable injury is lacking, but they should also be considered. The third factor is

, whether granting the stay will harm other parties. The App,licants argue that " mere deferment of discovery" will not harm the Intervenors, unless they are forced to proceed to litigation without discovery. Applicants' Motion at 6. But as the Licensing Board pointed out in its Memorandum of June 6,

"[u]nless expedition occurs in this case, the case may become moot." Thus, if the Applicants can delay long enough, the Intervenors will never get their chance to be heard.

Another kind of harm to the Intervenors is also possible.

The longer the Applicants continue construction in an illegal and unsafe manner, the more deficiencies in construction are likely to result and to be covered up. Therefore, it is important that the case be heard as soon as possible. An operating license proceeding is not a substitute for a plant being properly built in the first instance. See Cincinnati Gas & Electric Co. (Zimmer),

CL1-82-33, 16 NRC 1489, 1496 (1982).

Because delay will result in continued unsafe construction, the public interest (the fourth factor to be considered) requires that the stay be denied. The public interest would also be jeopardized by setting a precedent allowing parties to delay discovery (either taking it or answering it) whenever an appeal is pending. In such cases, the parties appealing can always

argue that discovery is unnecessary and burdensome, as Applicants have done here. Indeed, Applicants advance the theory that discovery should, in fact, be delayed whenever a 52.714a appeal is pending. Applicants' Motion at 8.

It is worth pointing out that, if licensing proceedings were delayed whenever either side took a }2.714a appeal, they would l come to a halt whenever intervenors appealed the denial of their contentions. It seems unlikely that Applicants or the Board would want to encourage such a policy. While it would operate to the advantage of a party who stood to gain by delay, it would' j

i clearly be contrary to the public interest in quick and efficient j resolution of disputes. .

The Commission has stated that "there is a substantial i public interest in efficient and expeditious administrative proceedings." Duke Power Co. et al. (Catawba Nuclear Statin, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1048 (1983).

The Commission emphasized this interest in its Statement of Policy on Conduct of Licensing Proceedings, CLI-31-8, 13 NRC 452, 4S3 (1981).

4 Delay would be particularly unjust in any case where, as here, there was a danger that the case might become moot if delayed long enough.

In Consumers Power Co., supra, the Board considered whether to grant an emergency stay of a proceeding challenging the reauthorization of a construction permit pending appeal of the decision that had initiated the proceeding. Tne Board noted that the main iscue before it was whether the project could survive a i

i proper NEPA cost-benefit analysis, and that delay would result in the applicants committing more resources to the project, thus tilting the balance in their favor. The Board held that this would not only harm the interests of the intervenors, it would also go against the public interest because "there is a public -

as well as a private - interest in the fairness of the decision making process." Id. at 779-780. Here continued use of the unjustifiable construction permit extension is the direct result of staying discovery pending appeal and thus postponing resolution of this proceeding.

Thus, consideration of the public interest, as well as all the other factors listed in 32.788(e), shows that the stay should not be granted.

CONCLUSION For all the reasons discussed above, the Applicants' Motion for stay of Discovery should be denied.

Respectfully submitted, l

ANTHONY Z.(y p k 8f

/

Trial Lawyers for Public Justice 2000 P Street, NW, #611

Wa;'ington, D.C. 20036 l (20; 463-8600 i

Counsel for Meddie Gregory

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bl gLNITA ELLIS /

1426 S. Polk 4

Dallas, TX 75224 (214) 946-9446 Representative for CASE l Law Student:

Ann Ifunter

Antioch School of Law 4

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9 UNITED STATES NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing h

tal Board

.- N s.'

7 SS~~~y }v In the Matter of ) 6' ;Qfygg ,

TEXAS UTILITIES GENERATING COMPANY, ) Dita Nos .'7 50-345-CPA' et al. ) 9 jMe? : 5' C

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(Comanche Peak Steam Electric ) 't /

Station, Unit 1 ) l3'T'I >

CERTIFICATE OF SERVICE I hereby certify that copies of Opposition of Consolidated Intervenors to Applicants' Motion for Stay of Discovery Pending Appeal were served today, June 19, 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 Docketing & Service Section l

Office of the' Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

l l

Geary S. Mizuno, Esq.*

Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 2U555

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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 4

. Alan S. Rosenthal, Chairman

• Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Lammission Washington, D.C. 20555 Dr. W. Reed Johnson

• Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Thomas S. Moore, Esq.*

Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ANTHONY G @ SMAN /

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