ML20206U892
| ML20206U892 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/08/1986 |
| From: | Ellis J, Roisman A Citizens Association for Sound Energy, GREGORY, M., TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#386-916 CPA, NUDOCS 8607110218 | |
| Download: ML20206U892 (9) | |
Text
4/t
%tAny k nouq BEFORE THE UNITED STATES
~*
NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
NRC
)
TEXAS UTILITIES GENERATING COMPANY,
)
Dkt. Nos. 50-445-CPA
.. hg et al.
)
)
(Comanche Peak Steam Electric
)
FICE Or SE Station, Unit I)
)
MEIpic 6 Sc,7y ut!Al:CH CONSOLIDATED INTERVENORS' RE6PONSE TO MOTION FOR CLARIFICATION AND OPPOSITION TO REQUEST FOR PROTECTIVE ORDER In its Order of July 3, 1986, the Appeal Board, in granting a stay of all discovery due to be answered af ter July 3 and in denying a stay of any discovery due to be filed on or before July 3, conclu'ded (p. 2, fn 1):
We assume that the discovery responses due today were (or at least should have been) suostantially completed by the time of the issuance of yesterday's order.
On July 3 Applicants filed a Motion for Clarification (or Protective Order)l, in which they assert that they did not believe any discovery responses were due on July 3 other than answers to Questions 1 and 3 of Set 1.
Motion, p.1.
Applicants' " belief" regarding the due date for answers to Sets 2, 3, and 4 apparently stems from their claim that the discovery 1
Counsel for applicants has indicated that the document was served by hand on the evening of July 3 by placing it under the door of the Trial Lawyers for Public Justice office.
We have not located the document so delivered and first received a copy of the pleading by regular mail in tne late morning of July 8, 1986.
8607110218 $ $o$$45 1
}
schedule established by tnis Board on June 6 was ambiguous when it identified July 3 as the date " Phase 1 discovery closes."
Memorandum (6/6/86), Attachment A.
At most, the phrase could mean two things.
Eitner it is the date tnat all discovery requests must be received, or the date that all discovery answers must ce received.
Since undeniably June 19, the "Lljast date for Phase I discovery," is the last date for requests to be received, July 3, fourteen days later, must be the last date to answer requests.2 This sanclusion is equally clear from the administrative history of the development of the schedule.
Consolidated intervenors proposed that Phase II discovery not begin until Phase I discovery has been fully answered.
Intervenors' Proposed Discovery Plan (5/15/66),
p.
3.
Applicants accepted this concept of phased discovery with the second phase commencing "Lfjollowing receipt of the information properly requested during Phase 1."
Applicants' Response to Intervenors' Proposed Discovery Plan (5/27/86),
p.
2.
The staff also accepted the concept of phased discovery and stated that it " endorses the Intervenors' general sequence of events in its Discovery Plan," but proposed a 2
Answers to interrogatories filed on or before June 19 would be due on July 3, pursuant to 10 CFR 32.740b(b).
Thus answers to Set 4 Interrogatories were due on July 3, irrespective of the June 6 schedule.
The schedule had the effect of expediting responses to discovery requests for which responses would otherwise be due after July 3 such as document production and Set 2 and 3 answers.
Obviously the controlling document is the scheduling order, which Applicants have already argued is the sine gua non for discovery regardless of the requirements of the regulations.
See Applicants' Reply to Consolidated Intervenors' opposition to applicants' Motion for Stay of Discovery Pending Resolution of Appeal (6/26/86).
-1 '
specific number of days for each event.
NRC Staff Response to Intervenors' Proposed Discovery Plan (6/5/86),
p.
2.
This Board then adopted a " schedule approximately equal to 80 percent of the time deadlines suggested by Staff" and "accepttedj the definition of pnases proposed by intervenors."
Memorandum (6/6/86),
p.
1, and Attachment A.
Thus it was clearly understood by all parties and this Board that Phase II discovery would begin only af ter the receipt of all responses to discovery in Pnase 1.
The Board's schedule with July 3 as the date Phase I discovery closes and July 7 as the date Phase II discovery begins can only mean one things all responses to Phase I discovery were due on July 3.
Applicant 3 cannot Justify their refusal to respond to discovery on the basis of ambiguity in the meaning of the schedule.
Nor can they claim that Consolidated Intervenors have only just revealed that they expected answers to discovery by July 3.
The Joint Intervenors' 4th Set of Interrogatories and Request for Documents (6/18/86) disclosed at the outset (p. 1):
i We expect receipt of responses to these interrogatories and requests for document production not later than July 3, 1986, as set forth in Attachment A to the Board's 6/6/86 Memorandum and Order (Adoption of Discovery Schedule) /1/.
/1_/
The Board's 6/6/66 Memorandum and Order set June 19 as the last date for Phase I discovery and July 3 as the date on which Phase I discovery closes.
The Board also stated that all filings are to be delivered by the due date.
Thus no later than June 19 (Set 4 was sent by overnight mail to Applicants' counsel in Boston), Applicants were aware that 4
Consolidated Intervenors' position was that answers to all
. 1
discovery filed on or before June 19 were due on or before July 3,
1966.
Applicants, apparently suspecting that their belief that July 3 was not the deadline for responding to discovery would be found to be baseless, plead that because they were not preparing to file any other responses and that filing any other responses would nave been impossible given the time available, they should now be given a protective order and be allowed time to more thoroughly Justify their position.
Applicants must not be allowed to benefit from their unjustifiable refusal to obey the scheduling order of t'his Board and the Commission's Rules of Practice.
As this Board has acknowledged, delay can have the affect of severely prejudicing the right.s of the Consolidated Intervenors.
Memorandum (Motion to Compel of June 26, 1986) 6/27/86, pp.
2-3.
- Moreover, Applicants were admonished "to place necessary resources on these tasks promptly and to produce information efficiently and on schedule."
M. p.
3.
Compared to its duties, the Applicants' conduct is ceplorable.
As noted, by June 19 Applicants knew that they had all interrogatories in Set 4 to answer by July 3 (10 CFR 3 2.740b(b) )' and that Consolidated Intervenors claimed that all discovery answers were dua by July 3 (Set 4,
- supra,
- p. 1).
Applicants filed no request for an extension of time, no request for clarification of the June 6 discovery schedule, and they made no ef fort to resolve the problem informally with Consolidated
)
Intervenors prior to July 3.
They must not be allowed to profit j
from their lack of due diligence.
The Appeal Board Order of July J, in rejecting a stay of discovery due on July 3, basically accepted the proposition that a party must prepare to answer discovery when it is due even if a stay request is pending.
Order, supra, p.
2, fn 1.
Apparently Applicants, continuing to pursue their theory of self-executing extensions of time and stays, did not prepare to file any discovery responses for Sets 2,
3, and 4 by July 3, much less " place necessary resources on these tasks promptly."
Memorandum (Motion to Compel of June 26, 1986), 6/27/86, p. 3.
In these circumstances, the following actions are warranted:
1.
Applicants be required to' respond to Sets 2, 3 and 4 by July 13,1986.
2.
Applicants be required to answers all discovery in the CPA proceeding (filed or yet to be filed), including providing a copy (at no cost) of all documents required to be produced, by delivering them to the offices of each of the Consolidated Intervenors on the date due for one and by overnight delivery for the other.
This will accomplish two goals.
First, it will substantially expedite this proceeding by assuring that fundamental information needed to proceed with the issues will be made available for study and analysis promptly, thus allowing Consolidated Intervenors more time to familiarize themselves with the data and prepare to commence Phase II discovery as soon as the pending appeal and certification are resolved.
Providing copies of the documents sought by Consolidated Intervenors in their offices (at no cost to them) will substantially expedite
-3_
their review because it avoids the time needed to travel to Applicants' offices in Dallas, the time to wait for documents to be brought and copies to be made, and the time los t because Applicants usually do not allow documents to be reviewed dt their offices on nights, weekends, or holidays.
Second, it will provide a powerful deterrent to Applicants.
The more they resist making prompt and economically feasible production of data available to Consolidated Intervenors, the more forcing them to produce it promptly and cheaply (to Consolidated Intervenors) will hurt, and thus a strong disincentive to furtner delay will be created.
In the event the Commission or the Appeal Boccd dismisses this proceeding, the discovery obtained here will not be wasted.
All the d,ata sought here is equally relevant, for different reasons, in the operating license proceeding, where CASE has now filed virtually the identical discovery.
We urge the Board to reject the Applicants' motions and order that ciscovery that should have been answered on July 3 1
be answered as indicated above.
Respectfully submitted, t
n=-
ANTHONY Z.
O SM N Trial Lawyers for Public Justice 2000 P Street, NW, #611 Washington, D.C.
20036 (202) 463-8600 i
I Counsel for Meddie Gregory i
, ~ _. - _
... =... - -.. -. _. _ _. -. - _ _.
4 s.
l.
a tj i
i I
i t
]
}
ITA ELLIS
- 4 J
1
]
426 S.
Polk Dallas, TX 75224
.(214) 946-9446 l
Representative for CASE Dated:
July 8, 1986 1
I f
s 3
i l
i a :
i a
}
)
I i
1 i
i I
1 4
1 i
j i 1
1 i
I d
i 1
I l
4
_ _ _.._ _._,~.-
1 UNITED STATES I!
NUCLEAR REGULATORY COMMISSION r
i Before the Atomic Safety and Licensing Board Ih In the Matter of N
)
)
TEXAS UTILITIES GENERATING COMPANY,
)
Dkt. Nos. 50-445-CP A et al.
)
)
(Comanche Peak Steam Electric
)
Station, Unit 1)
)
CERTIFICATE OF SERVICE hereby certify that copies of CONSOLIDATED INTERVENORS' I
l RESPONSE TO MOTION FOR CLARIFICATION AND OPPOSITION TO REQUEST FOR PROTECTIVE ORDER were served today, July u, 1986, by first class mail, or by hand where indicated by an asterisk, upon the t
following:
Administrative Judge Peter Bloch*
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Walter H. Jordan 881 West Guter Drive Oak Ridge, TN 37830 ur. Kenneth A. McCollom 1107 West Knapp Stillwater, OK 74075 Elizabeth B. Jonnson Oak Ridge National Laboratory P.O.
Box X, Building 3500 Gak Ridge, TN 37830 Nicholas Reynolds, Esq.*
Bishop, Liberman, Cook, Purcell & Reynolds 1200 17th Street, NW Washington, D.C.
20036 Docketing & Service Section Office of tne Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 1
1 i.
j Geary S.
Mizuno, Esq.
Office of Executive Legal Director U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 1-Thomas G.
Dignan, Jr.
- l c/o Kopes & Gray 1001 22nd St.,
NW, 7700 Washington, D.C.
20037 i
Thomas G.
Dignan. Jr.
Ropes & Gray 22S Franklin Street Boston, MA 02110 i
1 4
i ANTHO
'RpISMAN i
a 4
)
b f
I I
i
}
i i
i 2
1 4
,.._a.
-r-.,.,c--
,m,-
-y
-.a m_..
7, e,.
,,nv.
.,..~..
m.
e
-,y,
.,.3-g
,e-,y