ML20206P925
| ML20206P925 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 06/30/1986 |
| From: | Dignan T ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20206P929 | List: |
| References | |
| CON-#386-778 ALAB-524, CPA, NUDOCS 8607020294 | |
| Download: ML20206P925 (19) | |
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WD CORRESpaygQ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ggg USy fD before the ATOMIC SAFETY AND LICENSING APPEA B A DO NO:46 05{f[' Orc In the Matter of ) 6 v1C
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TEXAS UTILITIES ELECTRIC )
COMPANY, et al. ) Docket No. 50-445-CPA
)
(Comanche Peak Steam ) ,
Electric Station, )
Unit 1) )
)
APPLICANTS' REPLY TO CONSOLIDATED INTERVENORS' OPPOSITION TO APPLICANTS' MOTION FOR STAY OF DISCOVERY PENDING RESOLUTION OF APPEAL Robert A. Wooldridge Nicholas S. Reynolds WORSHAM, FORSYTHE, SAMPLES William A. Horin
& WOOLDRIDGE BISHOP, LIBERMAN, COOK, 2001 Bryan Tower, Suite 3200 PURCELL & REYNOLDS Dallas, TX 75201 1200 Seventeenth Street, N.W.
(214) 974-3000 Suite 700 Washington, DC 20036 (202) 857-9800 Roy P. Lessy, Jr. Thomas G. Dignan, Jr. ..
MORGAN, LEWIS & BOCKIUS R. K. Gad III 1800 M Street, N.W. ROPES & GRAY Washington, DC 20036 225 Franklin Street (202) 872-5000 Boston, MA 02110 (617) 423-6100 Counsel for 8607020294 860630 Applicants-Appellants ADOCK 0500 5 PDR G
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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................... 11 BACKGROUND .............................................. 1 I. THE STAY MOTION WAS TIMELY FILED AT A TIME WHEN IT WAS PROCEDURALLY RIPE AND AUTHORIZED BY LAW ......................... 2 .
II. THE SUBSTANTIVE PORTION OF THE OPPOSITION IS UNPERSUASIVE ......................... 11 CONCLUSION ............................................. 14 i
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TABLE OF AUTHORITIES Cases Page (s)
Carolina Power & Light Co.. (Shearon Harris Nuclear Power Plant, Units 1 &_2),
LBP-84-29B, 20 NRC 389, 424 (1984) .................. 7 Cleveland Electric Illuminating Co. (Perry Nuclear Plant, Units 1 & 2), LBP-81-24, 14 NRC 175 (1981) ................................... 7 Commonwealth _ Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2),
LBP-85-11, 21 NRC 609, 639 et seg. (1985) .................................. 8 Consumers Power Co. (Palisades Nuclear Plant),
LBP-79-20, 10 NRC 108, 125 (1979) ................... 7 Dairyland Power Co-op (Lacrosse Boiling Water Reactor), LBP-80-26, 12 NRC 367, 375 (1980) .............................. 7 Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant),
LBP-8'.-5, 13 NRC 226, 251 (1981) .................... 7 Pennsylvania P. & L. Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC 291, 327 (1979) ............................... 7 Philadelphia Electric Co. (Limerick Generating, Station, Units 1 & 2), LBP-83-39, 18 NRC 67, 91 (1983) ................................ 7 Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units 1 & 2),
LBP-75-21, 1 NRC 446 450 (1975) ..................... 7 Portland General Electric Co.
(Trojan Nuclear Plant), ALAB-524, 9 NRC 65, 68 (1979) .......................... 8, 9, 10 Regulations 10 CFR S 2.714a ............................ 4, 5, 8, 10, 13
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10 CFR S 2.740(b)(1) .................................... 6 10 CFR S 2.788 .......................................... 11 10 CFR S 2.788(a) ....................................... 3 10 CFR 2, App. A 5 IV(a) ................................ 6
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- RELATED Custnc.wDHDE.hGt, UNITED STATES OF AMERICA fg#gg NUCLEAR REGULATORY COMMISSION before the fkh 7 ATOMIC SAFETY AND LICENSING APPEAL B sir r
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In the Matter of )
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TEXAS UTILITIES ELECTRIC ) Docket No. 50-445-CPA COMPANY, et al. )
)
(Comanche Peak Steam )
Electric Station, Unit 1) )
)
)
APPLICANTS' REPLY TO CONSOLIDATED INTERVENORS' OPPOSITION TO APPLICANTS' MOTION FOR STAY OF DISCOVERY PENDING RESOLUTION OF APPEAL BACKGROUND On June 9, 1986, the applicants filed, in the above-captioned proceeding, a Motion for Stay of Discovery Pending Resolution of Appeal (" Stay Motion"). On June 12, 1986, the Consolidated Intervenors filed an opposition thereto (" Opposition"). The Opposition argued for denial on both procedural, Opposition at 1-5, and substantive, id. at 5-9, grounds. On June 23, 1986, this Appeal Board issued an Order directing the applicants to file a reply to the i Oppe3ition. We reply in Part I below to the procedural arguments and in Part II to the substantive argument.
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I. THE STAY MOTION WAS TIMELY FILED AT A TIME WHEN IT WAS PROCEDURALLY RIPE AND AUTHORIZED BY LAW The Opposition sets forth three procedural arguments.
The first is that the Stay Motion in reality is a motion to stay the effectiveness of the original prehearing conference order of May 2, 1986, and therefore is not timely under 10 CFR $ 2.788(a). Opposition at 1-2. The second argument is that insofar as a stay was sought to alleviate what Consolidated Intervenors describe as the "May 15 discovery" it is moot. Opposition at 2-3. With this proposition we would like to be able to concur.1 (We address below the issue of whether this argument has further ramifications.)
Third, it is argued that the stay Motion is an improper attempt to stay an interlocutory order from which no appeal has been taken. Opposition at 3-5. As seen below, these arguments proceed from an erroneous reading of 10 CFR
$ 2.788.
1 The so-called "May 15 discovery," once implemented by the Licensing Board's decision of June 6, 1986, put upon the applicants a burden that, prescinding from its burdensomeness simpliciter, was impossible to comply with in the meager time allowed. The response that was filed within that established time was, therefore, of necessity incomplete and envisioned additional work:
both to complete answers to interrogatories and to assemble the requested documents for CASE's inspection.
To assert that the "May 15 discovery" is moot is to assert that no further efforts on the part of the applicants are required; we would like to hold CASE to the import of its assertion but believe it would be disingenuous to try to do so.
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Prescinding from the second of the above-described three arguments, the position taken by the Consolidated Intervenors in the Opposition can be stated as follows:
Under 10 CFR $ 2.788 one may seek a stay only of precisely the same order that is the subject of the notice of appeal and one has only ten days after the appeal is filed to seek the stay.2 Therefore, the applicants were too late to seek a stay on the basis of the May 2, 1986 order and cannot seek a stay of the June 6, 1986 order, as such, because they have not filed any appeal therefrom.
This argument ignores the language of the first sentence of 10 CFR S 2.788(a) which reads as follows:
"Within ten (10) days after service of a decision or action any party to the proceeding may file an application for a stay of the effectiveness of the decision or action pending filing of and a decision on an appeal or petition or petition for-review." (Emphases added.)
We submit that critical to an understanding of the above-quoted portion of the regulation are the words set forth with emphasis. The regulation contemplates the seeking of a stay of effectiveness of a decision "or action" of a Board. This can be sought pending a filing and decision of "an" appeal or petition. The regulation does 2 I.e., one is barred from seeking a stay of any order ancillary to an appealed from decision and one is doubly barred from seeking a stay of any order entered more than ten days after the decision appealed from.
not say the appeal must be from the " decision or action" as to which the stay is sought. All that is required is that the action of which a stay is sought be logically ancillary to the decision that is the subject of the appeal. To hold otherwise, we submit, would be to render the words "or action" nugatory as well as to render the use of the indefinite article in the phrase "an appeal" improper: all licensing board renditions that might be the subject of appellate review are subsumed within the class described by l
" decision." "An appeal" grammatically means any appeal unless limited; CASE would have this Board read into the regulations words to the effect "an appeal from the decision or action" that the Commission did not enact. So read the regulation is as illogical as it would be ungrammatical, for it would constrain this Board's supervisory power to give meaningful relief from licensing board error in a fashion quite inconsistent with the purpose of appellate review.
CASE's reading of the regulation would preclude the availability of stay relief with respect to an appeal under 10 CFR 6 2.714a where, as here, the decision on appeal simply admitted contentions without imposing burdens creating an injury cognizable under the stay provisions.
Applicants in that instance could not obtain a stay in connection with the original decision because there would be nothing to stay. Further, subsequent orders by the Licensing Board, being interlocutory in nature (particularly 4 ~- -- - . - . - , y - --- --.-- - - . . - , - - , . ---
where discovery was involved), are not likely to be separately appealable. Therefore, under CASE's analysis, those unappealed decisions or actions could not be subject to a stay. The implication of that approach is that applicants pursuing an appeal under 10 CFR $ 2.714a would always be exposed to the very burdens that provision was intended to avoid during the pendancy of the appeal. Per contra, the applicants reading of the regulation gives meaning to the words "or action" and logically addresses precisely what occurred here.
The argument that the applicants should, or could, have sought a stay when the appeal under 10 CFR S 2.714a was initially filed does not square with the facts. The May 2 order of the Licensing Board, after admitting the contention, went on to provide:
"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 Licensing Board Order was there a declaration that discovery was already open.
Consolidated Intervenors nonetheless claim that this Order did have the effect of opening discovery ex proprio vigore. Opposition at 1-2. However, their argument is flawed. The actual language of 10 CFR $ 2.740(b)(1) relied on by the intervenors reads as follows:
"In a proceeding on an application for a construction permit or an operating license for a production or utilization facility, discovery shall begin only after the prehearing conference provided for in S 2.751a . . . ." (Emphasis added.)
First, this is not a proceeding on an application for a construction permit or an operating license. Second, and of more substance, all the regulation does is state that discovery shall not start before the special prehearing conference; it is not a self-executing start-of-discovery provision. Similarly, 10 CFR 2, App. A 5 IV(a) uses the permissiva "may" instead of the directive "shall" in describing when discovery commences in relation to the issue of a special prehearing conference order.
It is for this reason that Licensing Boards either actually establish a schedule, thus opening discovery by 3 See cases collected n.6 infra.
implication or state flatly that discovery is open,4 or do both.5 Herein the Licensing Board Order did neither, and this was no oversight. Indeed, we respectfully suggest that the only rational reading of the Licensing Board Order is that a discovery plan was to be considered and established before any discovery was to commence. The Licensing Board order expressly provided that the obligation to file and respond to plans would not be stayed by appeal. Had the Board Order contemplated the commencement of discovery before the proposed discovery plans were even assessed, it would have done so. As noted earlier, one could argue that a prehearing conference order that actually sets a schedule must, even assuming no statement as to when discovery commences,'be read as simultaneously opening discovery.s
- E.g., Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), LBP-75-21, 1 NRC 446, 450 (1975) (" discovery is hereby authorized"); Consumers Power Co. (Palisades Nuclear Plant), LBP-79-20, 10 NRC 108, 125 (1979) (" discovery will commence immediately");
Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), LBP-83-39, 18 NRC 67, 91 (1983)
(" discovery may begin immediately").
5 Cleveland Electric Illuminating Co. (Perry Nuclear Plant, Units 1 & 2), LBP-81-24, 14 NRC 175, 230 (1981)
(" Discovery on admitted issues shall commence immediately") (Bloch Ch.); Carolina Power & Light Co.
(Shearon Harris Nuclear Power Plant, Units 1 & 2),
LBP-84-29B, 20 NRC 389, 424 (1984). Pennsylvania P. &
L. Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC 291, 327 (1979).
8 E.g., Dairyland Power Co-op (Lacrosse Boiling Water Reactor), LBP-80-26, 12 NRC 367, 375 (1980); Pacific Gas One cannot argue that an order which asks for a discovery plan from one side, to be responded to "as if it were a I
motion" by the other side, has the same operative effect.
Thus, as of the time the 10 CFR 6 2.714a appeal was i
filed the only Licensing Board action taken ancillary to the decision appealed from was a direction for the filing of a discovery plan to be answered in due course as if it were a motion; a perfectly reasonable approach. Had the applicants come to this Appeal Board seeking a stay of that action, we suggest the result would have been a one line denial since (a) no showing would yet have been made on the merits and (b) a direction to reply to a suggested schedule has so miniscule an impact as to render any request for a stay frivolous. Not until the " action" of the Board in issuing the June 6th Order did the applicant have either a case for a stay or sufficient real harm to make an effort at relief a responsible step. And the request was filed promptly thereafter.
The Consolidated Intervenors cite Portland General Electric Co. (Trojan Nuclear Plant), ALAB-524, 9 NRC 65, 68 (1979) as authority for their position that the order sought to be stayed must be the one from which an appeal is taken.
and Electric Co. (Diablo Canyon Nuclear Power Plant),
LBP-81-5, 13 NRC 226, 251 (1981); Commonwealth Edison Co. (Braidword Nuclear Power Station, Units 1 and 2),
LBP-85-11, 21 NRC 609, 639 et seg. (1985).
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, Opposition at 4. The full context of the language quoted from ALAB-524 in the Opposition is as follows:
"Before us now are motions of the two l intervenor organizations--Coalition.for Safe Power (Coalition) and Columbia Environmental Council (Council)--for a stay of the effectiveness of the partial initial decision pending appeal. At the outset, it must be noted that, although i the Coalition has taken an appeal from
{ the decision under 10 CFR 2.762(a), the Council has not. In these circumstances, it is doubtful at best that the Council's motion will lie. As
- we read the applicable Rule of Practice (10 CFR 2.788), the right to seek stay j relief is conferred only upon those who e
have filed (or intend to file) a timely i appeal from the decision or order sought i to be stayed. We need not, however, pursue that point further. For, on an j examination of the papers submitted by the two organizations and of the
-underlying record, we ac n with the licensees, Oregon, and t u staff that entitlement to stay relief has not been established by either movant." 9 NRC at 68-69.
. What is' apparent is that in ALAB-524, the Appeal Board (1) was dealing with an applicant for a stay which had filed no
! appeal; (2) was not addressing the question of whether a Licensing Board " action" in a proceeding, ancillary to an appealed-from decision and the continued viability of which
, was dependent upon the outcome of an appeal of right, could i
be the subject.of a stay petition under the umbrella of the pending appeal; and (3) essentially stated that the portion
} quoted by Consolidated Intervenors was dicta unnecessary to I.
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the decision.7 We respectfully suggest that ALAB-524 cannot, under these circumstances, be viewed as controlling authority.
Finally, if the Consolidated Intervenors' second argument as to the mootness of the Stay Motion vis-a-vis the "May 15 discovery" is also an argument that some waiver has occurred because no stay or protective order was sought from the Licensing Board, this too is althout merit.
The "May 15 discovery" was attached to the Consolidated Intervenors' discovery plan and referenced therein.
Because, as set forth above, discovery was not open as of the time the plan was filed, the "May 15 discovery" had no independent vitality giving rise to a duty to respond or standing to seek a protective order. The applicants in response to the discovery plan did argue that discovery )
should await the outcome of the 10 CFR $ 2.714a appeal. This is all they could argue at that time. For this same reason, the applicants did not seek a " stay" from the Licensing 7 Indeed, it is not even clear that the assertion in ALAB-524 from which the intervenors claim support was dictum for the asserted proposition: the issue in ALAB-524 was the identity of the stay movant, not the nexus between the matter of which stay was sought to the matter on appeal. The phrase " appeal from the decision or order sought to be stayed" may just as well in context have been intended as the functional equivalent of " appeal in connection with which the stay is sought,"
particularly given that in that case the subject of the stay and the subject of the appeal were precisely identical.
Board because there was nothing to be stayed apart from the gossamer obligation to respond to the forthecming " motion" for a schedule. In addition, the language of the June 6 order effectively shut off the applicants from Licensing Board relief. We were informed that deadlines were to be i
" rigorously imposed [ sic] especiall u ga,inct Applicante,"
June 6 Order at 1, and that the Licensing Board would be receptive only to motions "to reduce the length of the proceeding" id. at 2 (emphasis in original).'
II. THE SUBSTANTIVE PORTION OF THE OPPOSITION IS UNPERSUASIVE The Consolidated Intervenors have filed a response with respect to each of the "four factors' articulated in 10 CFR
$ 2.788. With respect to " irreparable harm", the applicants in the main rely upon their prior filing. This Board can observe, however, that the actual course of the expected pendente lite discovery as it has unfolded has given compelling substance to our concerns about burden. Attached to this response are the four sets of discovery that the intervenors have lodged. From the face of these requests it is readily apparent that, as we have argued on the merits, the scope of this proceeding as envisioned by the proponents
- The Licensing Board also stated it would censider motions addressed to factors not considered in setting the schedule; clearly discovery and attendant burdens had been considered.
of the challenged contention is virtually open ended and wholly enveloping of both any Staff enforcement action for Construction Permit violations and the ongoing Operating License proceeding. As a result, the burden of this discovery is gargantuan and compliance with the Licensing Board's schedule is impossible.
The resulting harms are two-fold. The first is the simple cost and burden of performing the requested work; we respectfully submit that there is no sound logical or policy-based reason why such effort should be required while the question of whether the proceeding was lawfully commenced has not finally been determined. Second and even more burdensome is the fact that the very same resources that will be dedicated to this task are those that heretofore were -- and should be -- dedicated to the task of ensuring that Comanche Peak presently meets the Commission's regulations for licensure and that, once so, a demonstration of that proposition is made to the operating license Lieehsing Board. The impact of dealing with the construction permit extension matter (particularly as scoped here) simultaneously with the operating license matter (including the investigative and correction work necessary to support the licensing matter) means that the licensing matter will be impaired and retarded. This is a harm that is truly irreparable.
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As to the merits, the Appeal Board has now heard oral argument as well as had the case fully briefed. Thus, it is in a position to fully judge the " likelihood of success."
With respect to the " harm to other parties" factor, Consolidated Intervenors note that they could be injured if the case became moot. No one is hurt by this case becoming moot. If the case becomes moot, it will be because the CP extension is no longer needed; it will be no longer needed only when an operating license issues; and that will occur only after a plant fully in conformity with the regulations I
is completed. No one in injured by that occurrence.
As to the "public interest" Consolidated Intervenors make two arguments. First, it is argued that " unsafe construction" will occur if discovery is delayed. How I ongoing discovery or litigation of this case will in fact effect construction quality is not explained. Second, it is argued that if discovery is delayed here, it means that when 1
an intervenor files a 10 CFR 5 2.714a appeal, discovery would also cease. That is true. If an intervenor has a 10 CFR $ 2.714a appeal it is because the intervenor has been ruled out of the proceeding and no discovery would be allowed against the intervenor in the interim anyway.
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m CONCLUSION The Stay Motion should be granted.
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 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, MA 02110 (617) 423-6100
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h Th6m Dignan, Jr.
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