ML20207F736
| ML20207F736 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/16/1986 |
| From: | Eggeling W ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20207F742 | List: |
| References | |
| CON-#386-047, CON-#386-47 CPA, NUDOCS 8607220604 | |
| Download: ML20207F736 (32) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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TEXAS UTILITIES ELECTRIC
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Docket No. 50-445-CPA COMPANY, et al.
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(Comanche Peak Steam
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Electric Station, Unit 1)
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APPLICANTS' RESPONSE TO " CONSOLIDATED INTERVENORS' RESPONSE TO MOTION FOR CLARIFICATION AND OPPOSITION TO REQUEST FOR PROTECTIVE ORDER" On May 2, 1986, the Licensing Board issued its Order admitting and granting a hearing upon a single contention in the above-entitled matter.
That Order provided that the Consolidated Intervenors CASE and Meddie Gregory were to file a proposed 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."
Special Prehearing Conference Memorandum and Order, May 2, 1986, at 12-13.
In response to that directive, the Intervenors filed 8607220604 860716 PDR ADOCK 05000445 O
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%s" a proposed Discovery Plan, and attached a first set of interrogatories and requests for documents thereto.-
The Plan submitted consisted primarily of the suggestion that discovery be conducted in 3 " phases" utilizing the familiar tools of written interrogatories, requests for production of documents, and, eventually, depositions upon oral examination.
There was no suggestion therein that the normal time periods for responsing to such discovery should be abbreviated.
Applicants and the Staff responded separately to the Intervenors' Plan as contemplated by the Board's Order.
Each, for the most part, agreed with the idea of " phased" discovery, but both urged that the discovery not commence pending resolution of their joint appeal on the question of whether the case should proceed at all.
The Staff's submission contained a sketchy schedule, utilizing elapsed times rather than actual dates, but neither of the responses addressed the question of whether the statutorily provided periods for responding to discovery should be reduced.
Applicants' Response to Intervenors' Proposed Discovery Plan, May 27, 1986; NRC Staff Response to Intervenors' Proposed Discovery Plan, June 4, 1986.
Immediately following receipt of the Staff submission, this Board rejected the requests that the commencement of discovery should be abated, issuing its Discovery Schedule I
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i of June 6, 1986.1 That Order contained i
ambiguous provisions regarding the dates on which certain 2
i events were to be completed, but undeniably made no reference to any intention to reduce normally applicable I
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time periods.
l On July 2, 1983, the Atomic Safety and Licensing Appeal Board issued its decision certifying.the questions presented
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by the appeals of the Applicants and the Staff to the full-i Commission and ordering that all further discovery was to be held in abeyance.
Later that day, the Consolidated I
i Intervenors filed a motion for clarification or l
reconsideration of portions of that decisions. addressed to l
the suspension of discovery.
Before the Applicants were 1
able to respond, the Appeal Board granted in part and denied i
in part the Intervenors' motion.
In this Order, the Appeal j
Board directed that its stay was confined to any discovery request to which answers were due subsequent to July 3.
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2 1
The Issuance of this Order had the effect of abating a motion to compel filed by Intervenors on the strength of their contention that discovery in this proceeding had commenced upon the issuance of this Board's' request 1for i
proposals for a discovery schedule.
The issue presented l
thereby -- when discovery actually was to i
commence -- has never been decided.
I 2
These ambiguities appear to have been incorporated from j
the incomplete outline for discovery proposed by the Staff's submission, see infra.
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Following receipt of that modified Order, Applicants filed their Motion for Clarification (or Protective Order),
pointing out that they were of the opinion that all the discovery due by July 3 was being filed on that date, but requesting this Board's equitable protection in the event they were wrong in that expectation.
Thereafter, the Consolidated Intervenors filed their " Response to Motion for Clarification and Opposition to Request for Protective 1
i Order."
l l
Although denominated a " Response", the Consolidated Intervenors' filing is in fact a Motion to Compel within the 1
meaning of the Rules of Practice.
See 10 CFR l
6 2.740(f).a As such, Applicants have the right to respond l
thereto.
10 CFR 5 2.730(c).
Applicants' response is being served and filed today, July 16, 1986, pursuant to direction of the Chairman of the Licensing Board, by phone, July 9, 1986.
There are thus currently before this Board two different requests for affirmative relief:
(1) Applicants' request for clarification of, or protection from, the burden of continued discovery in a case whose future has been declared 1
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It shall therefore be referred to hereinafter as
" Response / Motion to Compel".
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to be genuinely in doubt; and (2) Intervenors' request for compulsion and sanctions against the Applicants for taking that position.
Applicants submit that if the ambiguities of the Board's Discovery Schedule Order are clarified in accordance with its expressed intent, they will be determined to have met timely all their obligations.
In any event, Applicants deserve protection from additional discovery burdens in order to effectuate the policies recognized by the Appeal Board.
Even if this Board does not confirm Applicants' expectations, moreover, there is simply no basis for the relief sought by the Consolidated Intervenors.
I-We begin with an analysis of the discovery burdens and deadlines as Applicants understood them.
It may simplify that analysis to deal with each of the four sets of discovery requests outstanding, although Consolidated Intervenors premise their argumente almost entirely upon the obligations claimed to have been imposed by Set 4.
(a)
The first set of interrogatories and document production requests from the Intervenors accompanied their proposed
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%L dist 'ery plan on May 15.
In its Order of June 6, this Board directed that these be responded to by June 16.
Applicants complied with schedule, or believed they did.
Intervenors, however, disagreed and filed on June 26 a motion to compel with respect to Applicants' responses to this first set of discovery.
On June 27 -- before Applicants had any opportunity to respond thereto -- this Board issued an order granting the motion to compel and imposing various obligations and schedules upon Applicants for compliance therewith.
Rather than attempting another parallel appeal, Applicants set out to meet these obligations.
According to the terms of the Board's June 27 Order, Applicants were to:
provide further responses to questions 1 and 3 by July 3; provide further responses to question 8 by July 11; and provide a schedule by which they could be expected to provide actual answers to questions 4 through 7.
No date was specified as to when this schedule
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i was to be provided.*
On July 3, the further responses to questions 1 and 3 were filed, and all things required to be done by the terms of the Board's Order were completed.
We It was therefore presumed by Applicants that, as was the custom with previous obligations, a response was due as soon as it could be produced through the application of reasonably diligent industry. _
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h do not understand Intervenors attempt to mount any challenge to this conclusion.
i (b) i i
The second set of discovery requested by Intervenors contained both interrogatories and document requests.
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(" Joint Intervenors' 2nd Set of Interrogatories and Request for Documents.")
The certificate of service reflects that-I it was served by first class mail on June 9, 1986.
Under the Commission's Regulations, a response to so much of the i
document as constitutes a request for the production of 4
documents was due 35 days after service, or July 14, 1986 (June 9 + 30 days = July 9,
+ 5 days = July 14).
$ 2.741.
Under the Commission's Regulations, answers or l
objections to the interrogatory portion were due 19 days after service by first class mail, or June 28, 1986.
In this instance, however, the propounding party did not I
request responses to these interrogatories until 30 days i
i after their service. ("We expect responses to these interrogatories and/or requests for document production not later than 30 days after receipt of this request.")
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I Upon receipt of these requests, Applicants reviewed I
them, determined that responses to the interrogatory portion were due July 18 in reliance upon Intervenors' specific j
directive to that effect, and so informed the crew of l
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Applicants' employees which had been mobilized to provide input into the responses.
A truly massive effort was going to be required by the broad scope of the Intervenors' discovery demands, and it was going to be very difficult even to meet the July 18 date.
It would not have been physically possible for the Applicants to respond to this set of discovery requests by July 3, 1986, the date which Intervenors now argue was the expected due date.
Inasmuch as they have not directly addressed the point, we are unsure as to how the Consolidated Intervenors can now contend that the Order of this Board dated June 6,
- 1986, could have somehow operated to shorten the time within which responses to Set 2 were required.
Whatever the basis or theory for Consolidated Intervenors' contention -- if that be their contention 5 it should be rejected.
In the first place,. such a contention would have to somehow avoid first the fact that the Intervenors expressly granted the Applicants thirty days in which to perform that task and never sought to withdraw that consensual extension S
The only reference to such a point occurs in footnote 2 of the Intervenors' Response / Motion to Compel wherein it is suggested that the Discovery Schedule had the effect of " expediting" the due dates for Set 2 interrogatory answers.
Intervenors thus appear at least to recognize that those answers were not due prior to July 3 absent the ambiguous provisions of that Order.
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\\s of the burden, imposed by their discovery request.
The i
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obstacle which such a contention faces must be increased by
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the fact that the thirty day request specified by the j
Intervenor was presented.after the date of the Board's
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If the Intervenors had believed I
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- qas they now app'arently contend -- that the Board's a
l-i schedule had the effect of setting an absolute date of
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U ly 3,for receipt of all discovery, their specification of j
a,much later date' as the time by which they " expected" a
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res'onse stands as a curious anomaly in their position.
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the least it must evidence Intervenors' original judgment, g
now abandoned and repudiated by them, that responses by that i
date would be timely under the discovery schedule they i
t thoughtappropriateikthisproceeding.
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Whatever the j
explanation for these inconsistent representations, Applicants' decia{ontotakeIntervenorsattheirword l
st simply cannot constitute the sort of callously unreasonable i
conduct as it is now being labelled.
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The third set ofidiscovery' (" CASE and Meddie Gregory's 1
i Third Request'for Phoduction o'f Documents") consists entirkly of requests for production for documents.
As we j
have noted above, the time for responding to such requests i
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is specified in the Nies of Practice as 30 days (plus 1
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o appropriate additional periods measured by the manner of I
service).
In the case of Set 3, which was served in hand during the hearing before the Appeal Board en June 18, responses were due on July 18, and Applicants marshalled their resources, in accordance with this Board's directives, to attempt to meet this deadline.
We had not anticipated that any other period could be 2
thought to be applicable -- particularly since the Rules of Practice are instructively silent on the power of administrative law judges to shorten this time. -Compare 10 CFR 5 2.741(d) with 10 CFR $ 2.740(b); see also part II, infra.
It may be inferred that Intervenors recognize this obstacle as well, since their " Response" does not advance I
any theory upon which a shorter period'for responding to the 1
document production requests could be premised.
They also make no reference to the absence of responses to the document production requests as supportive of their allegations of bad faith and contemptible conduct.
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(d) i As noted earlier, Discovery Set 4 (" Joint Intervenors' 4th Set of Interrogatories and Request for Documents l
(6/18/86)") forms the foundation for all of Intervenors' arguments.
They urge that these requests at least were 10 -
clearly due or July 3 -- both as a result of the Board's Discovery Schedule Order and " irrespective of that schedule pursuant to 10 CFR 6 2.740b(b)."
Response at 2 n.2, et seq.
As to the former contention, see part II infra.
As to the claim that a July 3 deadline is required by the Rules of Practice, Intervenors proceed from an erroneous factual premise.
It is agreed that June 19 plus 14 days equals July 3.
'If Intervenors were correct that Discovery Set 4 had been served in hand on June 19, therefore, we would not now dispute -- and would not have previously interpreted differently -- a July 3 due date.
The flaw is that the discovery requests were not so served.
To the contrary, the certificate of service reflects that they were served by placement in the hands of Federal Express on June 18.8 The 8
It is not clear when these discovery requests were in fact received by the Applicants or whether this method of service complied with the provisions in the Board's Discovery Schedule regarding " delivery" by the due dates.
The earliest date stamped copy we have located bears the date June 20, but we have been unable to reconstruct whether this date is a function of delay in Applicants' internal distribution system or a possible indication that CASE's representative may have given the discovery to federal express on June 18, but too late to effectuate next day delivery.
That situation, although rare, is certainly an occasional occurrence with private courier services.
In any event, we had not yet even considered that the Board's Discovery Schedule might be interpreted to reduce the period for responding to this discovery 11 -
appropriate calculation is thus not to add 14 days, but 14 +
2 days.
10 CFR S 2.710.
correct calculation thus produces a due date of July 7, the next day which is "neither a Saturday, Sunday or holiday."
Id.
It does not yield July 3.
This calculation was the basis for Applicants' efforts to meet their discovery obligations under Set 4, and they assembled an extrememly large and costly team which had J
already begun to produce all the information properly sought by the Intervenors.
That information was scheduled to be ready for service on July 7.7 It was.the Appeal Board's i
Orders which interdicted completion of that effort -- not a
uncooperativeness or bad faith such as has been assigned to Applicants by the rhetoric of Intervenors' notion to compel.
11-4 It is thus indisputable that none of the discovery sought by Sets 2, 3 and 4 was required to be responded to on or before July 3 according to customary procedure before provided in the Rules of Practice--and we therefore did not contemplate for some time thereafter any need to seek clarification of such a possibility.
7 Though this was to be accomplished only at substantial cost of project resources -- which might otherwise have been used productively -- as well the loss of many, many individuals' Independence Day holidays..
ASLB's applying the Rules of Practice.
We recognize that a question remains whether this Board's " Discovery Schedule" Order of June 6 should be interpreted to alter that result.
Such an interpretation is neither warranted nor just, hovever.
In the first place, it is admitted by all the parties that the June 6 Order was ambiguous and confusing.
- Indeed, CASE submitted a Motion addressed to these ambiguities and requested that this Board resolve them with clarifying -- as well as substantively supplemental -- directives.
See
" CASE's Request for Clarification and/or Motion for Reconsideration of Portions of 6/6/86 Board Memorandum and Order (Adoption of Discovery Schedule)," filed June 23, 1986.
That document, which predictably interprets the 8
ambiguities in Intervenors' favor, asks that the Board correct those interpretations only if it does not accept the CASE constructions.
The essential premise of the CASE 1
8 Please note that we do not criticize CASE for thus attempting to resolve ambiguities in its favor.
Inasmuch as an ambiguity remains by definition something which the Board has not conclusively decided, it is certainly appropriate for any party to attempt to advocate the interpretation which is most beneficial to its side of the issue.
CASE's attempt to achieve such a result was fair advocacy, and we would have responded with Applicants' countervailing view of the proper ruling when we responded to the CASE motion -- had the opportunity for such a response not been superseded by the Appeal Board's suspension orders.
motion thus contrasts rather sharply with Intervenors' current position that the duties imposed by the Discovery Schedule were clear and unequivocal.
It is particularly instructive that one of the central ambiguities which CASE previously perceived was the intended meaning of the three provisions regarding the times upon which the three phases of discovery were to "close."
CASE initially interpreted this phrase to have required that all discovery to be obtained during the relevant Phase was complete upon that date since it would have been presumed by then to have been received in the hands of the discovering party.
(See Request for Clarification at 3).
Having recognized that this rather procrustean interpretation would have the effect of making it impossible for Intervenors to review effectively the incredibly voluminous information sought by their discovery requests, CASE promptly advanced a very different interpretation than that which it continues to assert with respect to the burdens upon Applicants.
(This method of interpretation, resolving ambiguities to require additional burdens upon Applicants but additional leniencies in favor of Intervenors, is a consistent theme of the CASE filing.)
A more logical avenue of escape from this dilemma would have been to interpret the date for the "close" of discovery as having a meaning tailored to the Commission's l
Regulations, as regularly aplied in everyday discovery practice before Licensing Boards.
As noted above, the Regulations prescribe fourteen days as the basic time in which responses are to be provided to interrogatories.
Confronted by the same ambiguities identified by CASE, we had assumed the Licensing Board's June 6 Discovery Schedule had been premised upon precisely these periods, and that it should be interpreted according to the normal expectations of the parties with respect to the Regulations.
We were comforted in that belief by our observation that the June 19 date specified as the "Last date of Phase I discovery" would produce a date of July 3 for the "close" of that discovery
-- if the discovery during Phase I was confined to interrogatories, if the interrogatories were in fact served in hand no later than the June 19 date, and if no different times for response were made applicable by a propounding partys' request.
Viewed in this light, the discovery " closes" date becomes what we had understood it to be, a useful and necessary tool for measuring a time after which the parties and the Board might expect the next Phase to be ready to begin.
Its primary use was thus thought by us to be a datum for overall scheduling purposes.
It was not interpreted as an absolute deadline for receipt of all discovery responses during a particular Phase, since among other things such an,
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o interpretation would be contrary to a number of provisions protective of the rights of all the parties.
For example, one of the reasons Applicants did not understand the " discovery closes" date to shorten the time for answering interrogatories provided in the Regulations was the fact that the Board made no mention of an intent to so modify those times.
Although the Board would have such a power in appropriate circumstances, cf. 10 CFR S 2.740(b),
it would normally require explicit recitation of the intent to exercise such authority in order to ensure the parties received an opportunity to be heard upon its judicious exercise.
- See, e.g.,
Niagara Mohawk Power Co. (Nine Mile Point Nuclear Station Unit 2), ALAB-264, 1 NRC 347, 354 (1975); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 55-56 (1978).
No such announcement accompanied any of the submissions leading to the Board's Discovery Schedule Order,' and none appears in the Memorandum accompanying that It is also worthy of note that Intervenors' original submission regarding a discovery schedule represented that only two sets of interrogatories and document production requests were to be propounded by them during Phase 1 that and both of these would be served no later than June 2.
Intervenors' Proposed Discovery Plan, at 3 (May 15, 1986).
It is perhaps idle speculation to wonder the extent to which the Board's June 6 order was premised on these unkept promises; thought we cannot ignore that the current dispute seems highly unlikely even to have arisen had they not later been abrogated..
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Order.
It was thus impossible for any of the parties to be heard on the question of whether the time periods provided a
in the Rules of Practice should be shortened in this case.
Before the arguments in Intervenors' motion were advanced, we did not assume parties' rights could be thought to have thus been cast in jeopardy without notice.
i Likewise, we could not lightly interpret the Order to require document production requests to be responded to by July 3 regardless of the date of their service.
The Regulations provide that 30 days shall be permitted for such responses and -- contrary to the federal rules -- no provision is made for shortening this period.
(Compare 10 CFR S 2.741(d) with Fed. R..Civ.
P.
34(b)).
If Intervenors' arguments are to be accepted, it must be presumed that a. Licensing Board may have intended to act in a possibly lawless manner whenever its order are ambiguous, so that a party may be not deprived of substantive rights by failing to challenge immediately every such ambiguity.
There is no authority for such bizarre practice, and reason and logic clearly require its rejection.
Applicants' interpretation is further supported by its congruity with the absence of any other provisions in Phases II and III regarding the "Last date for discovery" such as was provided by the June _19 entry for Phase I.
CASE has itself recognized that this ambiguity required -
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rectification before its current contention -- that of the
" undeniable" meaning of the Board's June 6 scheduling order
-- could have any internal consistency.
See Request for Clarification at 5-6.
We had believed these absent i
provisions were to be inferred as existing 14 days prior to the date discovery " closes" in each of the next two Phases.
We had thus interpreted the overall schedule to reflect the Board's implicit recognition that the primary function of discovery scheduling deadlines is to permit parties to plan by looking forward, not to penalize parties by looking backward.
Although it must now seem surprising, we had previously assumed that the Consolidated Intervenors would have to agree with us on this subject since the unavoidable fact is that any other consistent construction must eventually penalize all the parties in completely absurd fashions.
For example, if Intervenors' current position were to have been enforced, all discovery would have to have been completed on the " discovery closes" date.
This would have made it impossible for a discovering party to examine the documents and things requested by a Request for Production.
Under Intervenors' current construction, moreover, it would have been impossible as well for a discovering party to test the adequacy or sufficiency of responses received prior to commencement of the next discovery Phase.
And, in view of
the absence of provisions in Phases II and III regarding the last date for discovery, Intervenors' supposed " plain meaning" interpretation would have made it possible that a party could have been expected to file discovery responses within hours of receiving the requests.
None of these results are very rational, although all would be compelled by the extrememly rigid interpretation now asserted by the Intervenors.
We submit such interpretations must be rejected -- either because they were never intended, or because they would do violence to any semblance of a fair and equitable proceeding.
We attempted 1
to adopt just such a sensible approach to meet Applicants' obligations and -- at least until their most recent filings
-- it appeared that the Intervenors intended to do so as well.
The recent shift in their position is dramatic.
Compare Case Request for Clarification at 1-2 ("There are some items contained in the Board's Order which we believe need either some clarification or reconsideration.
CASE believes that it would be helpful if the Board clarified for the benefit of all the parties certain aspects of the Board's Schedule
") with Consolidated Intervenors' Response / Motion to Cempel at 3
(" Applicants cannot justify their refusal to respond to discovery on the basis of ambiguity in the meaning of the schedule.")
Intervenors' attempt to advantage themselves -- and or at.
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least to disadvantage Applicants -- on the basis of ambiguities which they previously admitted should not be countenanced.
We submit that Applicants' interpretation is at least the more " correct" one, while admitting that such questions do not easily lend themselves to such strict categorization.
In fact, we do not know what the Board " intended" with regard to these questions, any more than do Intervenors.
Indeed, we can not even pretend to be able to decipher whether it was able to consider them all in sufficient depth to have formulated any intent.
To the contrary, we believe that the root of the problem may well be found in the fact that the Staff's very sketchy outline of a proposed elapsed time schedule -- which was substantially adopted by this Board in its June 6 Order -- simply never was analyzed by the Staff's draftersta in a manner which permitted anyone to foresee and attempt to resolve the sorts of inconsistencies and ambiguities which have later surfaced.
We therefore read the text of the Board's Order inviting submissions concerning " factors that the Board may not have considered in setting the schedule," Order of June 6, 1986, at 2, as an indication that the Board judiciously recognized the limits of promulgating such an itemized schedule without the input 28 Nor by the Applicants or Intervenors, of course.
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of the parties on such details.
It seems to us further to confirm that there would be a substantial measure of hubris in any party which would presume authoritatively to divine such intent.
We shall not attempt to do so.
What is important instead is the expressed intent of the Board's " Discovery Schedule" Order; Cf. 46 Am. Jur. 2d 6 73; read, as it must be, against the backdrop of customary agency procedures interpreting and applying the Rules of Practice.
That intent is at least confirmatory of Applicants' interpretation.
Certainly it provides no support for Intervenors' contention that the record demonstrates some inexcusable dereliction of duty on the part of the Applicants.
III.
In light of the undeniable confusion which the Discovery Schedule produced, the suggestion that Applicants should effectively be penalized for their interpretation is extremely troublesome.11 It is, moreover, badly misplaced 11 Cf. United States v. Joyce, 498 F.2d 592, 596 (1974):
"It is well established that before one may be punished I
for contempt for violating a court order, the terms of such order should be clear and specific, and leave no doubt or uncertainty in the minds of those to whom it is addressed.
McFarland v. United States, 295 F.
648, 650 i
i as a matter of law.
Although it is somewhat marginal to the proper focus of the current dispute, we must point out that most of the relief prayed for in the motion to compel is simply unavailable in this forum.
Intervenors' assumption that an ASLB is empowered to shift to the Applicants the burden of reviewing the hundreds of thousands of documents and records sought by Intervenors is nowhere supported by the Rules of Practice.
To the contrary, those Rules are conspicuously silent in withholding the authority to impose such creative sanctions as Intervenors demand.
Compare Fed.
R. Civ.
P. 37(b)(2) and 26(f) with 10 CRF $ 2.740(f).
It would be contrary to public policy to visit such enormous additional burdens upon an Applicant before the Nuclear Regulatory Commission, and the NRC has been consistent in its position that intervenors may not have their normal litigation and discovery costs underwritten or mitigated by applicants.
- See, e.g.,
Nuclear Regulatory Commission (Financial Assistance to Participants in Commission Proceedings), CLI-76-23, 4 NRC 494 (1976).
The most this Board can require is that Applicants' resume the extremely burdensome and expensive task of providing responses to the (7th Cir. 1923); United States v. DeParcq, 164 F.2d 124, 126 (7th Cir. 1947).
Failure to take action required by an order can be punished only if the action is clearly, specifically, and unequivocally commanded by that i
order.
United States v.
Fleischman, 339 U.S.
- 349, 370-371, 70 S.Ct. 739, 94 L.Ed. 906 (1950)." l j
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portions of Sets 2, 3 and 4 which advanced proper questions or demands.
In light of the reasons addressed above and hereinafter, however, even that sort of Order would be unwarranted and unjust.
IE-Intervenors continue to insist that their failure to obtain all the discovery they requested is prejudicial to their interests.
It is impossible to see how this can be so.
In the first place, should they be correct in their expectation that the Commission will agree with them on the propriety of the admitted contention, they will surely be afforded appropriate discovery on that contention -- or any properly litigable substitute.
It is moreover settled that mere delay in receiving discovery in this proceeding cannot be prejudicial.
Were it not so, the Appeal Board certainly would not have stayed all discovery not due by July 3.
The undoubted consequence of that Order will be delayed in obtaining discovery while the Commission determines whether this proceeding is even to continue, or at least on what course.
But that prospect did not warrant reconsideration of the Appeal Board's Order.
"We see no cause.
to reconsider that result." ' Texas Utilities Electric Company (Commanche Peak Steam Electric Station, Unit 1), No. 50-445-CPA, Atomic Safety and 1
' l
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Licensing Appeal Board Order of July 3, 1986, at 1.
- Thus, the Appeal Board's rulings effectively stand for the proposition that such delay must be tolerated because the risk of wasting valuable resources outweighs any harmtz which might legitimately be identified in connection therewith.
If Intervenors continue to dispute this principle, their avenue for relief is to the Appeal Board or 4
the full Commission.
E-It is also important to examine and understand exactly what Applicants have done, could have done, and could yet do, before attempting to formulate an opinion as to the adequacy of their compliance with the letter and the spirit of their obligations to this Board.
Dispassionate consideration of those facts will reveal that Intervenors' repetitious charges of " bad faith" and " callous disregard" are unfounded.
We have set forth above how we arrived at our As we have pointed out before, "mootness" of this 12 proceeding -- if caused by the issuance of an operating license for Unit 1 -- cannot as a matter of law produce harm to Intervenors, or to anyone else.
The axiomatic nature of this proposition seems to have been at least partially accepted by the Appeal Board in its ruling on certification. !
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calculation as to when Applicants' discovery obligations were to be met.
We have also addressed briefly the steps that were actually taken in furtherance of our plans to meet those obligations fully.
Attached hereto as an Appendix is the affidavit of Dr.
L.
Ed Powell.
This affidavit demonstrates in substantially greater detail that --
contrary to Intervenors' hypotheses -- Applicants in fact committed all their available resources to meeting the enormous burden placed upon them by the Intervenors' omnivorous discovery demands.
It bears unders.oring that the effort expended, and to be expended, by significantis Project employees is measured in man-months and man-years reflective not only of serious diligence, but extraordinary cost.
The effort itself, moreover, expends much more than just the resources devoted to it.
One of the real opportunity costs of the CPA discovery burden was, and would be, and one of the costs of this effort was its diversion of personnel and resources from other -- at least 18 It bears noting that the estimates for personnel usage in Dr. Powell's affidavit do not take into account the numerous clerical and support personnel'which are necessary to support such a massive collection, collation and drafting effort.
They also do not take account of the less important time of the lawyers and legal staff which would have been reviewing the end products in order to ensure that it was in satisfactory form for presentation to this Board.
We submit-the Board can take judicial notice that these factors would provide a significant multiplier to the actual eventual cost figures.
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equally important -- tasks such as the completion of the CPRT effort and the pursuit of progress in the companion OL litigation.
Intervenors nevertheless charge that Applicants were somehow dilatory in seeking confirmation from this Board that their interpretation and efforts were not misplaced.
This argument ignores reality.
In fact, as is clear from the discussion herein and the affidavit attached, Applicants and their counsel were fairly consumed with trying to respond to the discovery requested of them within the time periods they believed were appropriate.
To the extent they were not prepared to submit all the discovery which Intervenors now claim was required by July 3, they certainly had the right to so advise the Board and the Intervenors by that date and to seek -- to the extent necessary -- a protective order expressly authorizing responses on the dates Applicants believed were appropriate (and possibly feasible).
Intervenors seem to argue that Applicants should somehow have alerted the board earlier to the situation.
Such a contention must fail.
As we have tried to explain herein, we were not conscious of the possibility that the Board's Order could be read to require discovery responses to all the Phase I discovery by July 3 until we began to study the CASE Motion for Clarification which pointed out that this
interpretation was an arguable one.
Our awareness of the CASE argument did not arise until the very end of June, and 1
an appropriate course was still being formulated a few days later the Appeal Board issued its first decision.
We submit these were extremely brief periods in which to expect Applicants to tend to the many matters on their plate.
It 4
is cne thing to suggest that applications for an extension 4
or a protective order should be made as soon as is reasonably possible.
It is quite another to require that they have to be made virtually instantly.24 Following entry of the Appeal Board's Orders, moreover, the Applicants, in an abundance of caution, filed their Motion for Clarification (or Protective Order) embodying just such requests for clarification and equitable treatment.
Somewhat incredibly, Intervenors seize upon this filing as allegedly reflecting Applicants' lack of conviction in their position and therefore supporting 14 The Response / Motion to Compel suggests that Applicants i
are chargeable with the knowledge that Intervenors intended to contend that July 3 was the due date for all~
the Phase I discovery responses upon receipt of a phrase to that effect in the Set 4 Discovery Requests.
This is an extraordinary responsibility to impose upon Applicants' inasmuch as Intervenors' interpretation.of the Board's Order was certainly not required to be considered definitive and Applicants had already formulated an interpretation which seemed to them correct.
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Intervenors' wholly imaginary charges of bad faith.
This sort of argument, particularly where it is used to impugn the supposed motives of.one's opponents, tests the bounds of appropriate advocacy.
The fact is that Intervenors seek to have this Board impose upon Applicants an impossible dilemma.
If Applicants rely upon their good faith interpretation of discovery obligations and deadlines, they are to be pilloried as
" continuing their theory of self-executing extensions of time and stays."
Response / Motion to Compel at 5.
If they follow the Board's directive in its June 27 Order and timely exercise their right to seek an extension of time protective of their interpretation of admittedly ambiguous provisions, they are to be disbelieved because they lacked the conviction to let the possible deadline pass without some action.
Id. at 4.
The only outlet from this particular Scylla and Charybdis would be for Applicants to challenge every discovery request, every order, and every possible deadline as to which any conceivable disagreement might arise immediately upon its receipt.
Such a practice would multiply uncontrollably what is already become substantially complicated litigation.
Intervenors overextend themselves in contending such a course can be required under any rational system of jurisprudence.
-e,..
,-,,,,,.r--gy
~,,.v,
YE-Although it was necessary to respond to the arguments advanced by Intervenors, we suggest the foregoing discussion overcomplicates and perhaps overanalyzes the current situation.
We submit it cannot be denied that the Board's Discovery Schedule Order was in several important aspects ambiguous.
Applicants interpreted those ambiguities in a manner consistent with the Rules of Practice and customary procedures before ASLBs.
Those interpretations -- even if erroneous -- cannot support the current claim that Applicants acted in bad faith.
More importantly, it is clear that Applicants simply could not have provided all the discovery demanded by the Intervenors prior to issuance of the Appeal Board's certification decision.
Contrary to Intervenors' charges, the record is now perfectly clear that Applicants applied substantial resources to the task, but that it was unyieldingly overwhelming.
It also cannot be denied that a request for relief from any July 3 deadlines which might have existed would have been timely if filed by July 3.
In light of the showings Applicants would have made regarding the intensity of their a
effort and the impossibility of their task, we submit it would have been an abuse of discretion to reject such _
4 4
h requests.
Applicants were prepared to make such a filing, including therewith the factual showings accompanying this memorandum.
Before that occurred, however, the Appeal Board announced that it would be wasteful to permit further resources to be expended upon discovery in a proceeding which might soon be terminated:
Suffice it to say that there appears to be no good reason why the applicants should be burdened with extensive discovery so long as a serious question remains whether the entire proceeding should be dismissed as a matter of law.
t Texas Utilities Electric Comeany (Commanche Peak Steam Electric Station, Unit 1), No. 50-445-CPA, Atomic Safety and Licensing Appeal Board Order of July 3, 1986.
Had the Appeal Board not acted on the day it did, Applicants would certainly have been able to obtain relief from the discovery burdens heaped upon them.
In light of the Appeal Board's Order, it defies common sense to argue Intervenors should be entitled to continue to force Applicants to waste further resources on those burdens.
It is in effect an argument that despite the fact that the Appeal Board effectively ruled in Applicants' favor on the discovery stay request, Applicants neveretheless lose because they never got an opportunity to present their -
a ~ s position.
This Board is not a forum where such Kafkaesque results are to be countenanced.ts is For similar reasons, the suggestion that this Board should ignore Applicants' arguments because Intervenors have had the audacity to propound identical discovery requests in the Operating License proceeding must be rejected.
We shall respond to those discovery requests in timely and appropriate fashion in the proceeding in which they have been filed, but it is difficult to ignore the observation that they appear to ime an attempt to avoid by sleight of hand the import of the Appeal Board's decision.
Such an effort can hardly provide a basis for disregarding Applicants' rights.,
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e a CONCLUSION For the reasons stated herein, we submit there was no discovery was due on July 3 other than that which Applicants provided.
It is also clear that continued discovery in this proceeding would waste enormous resources directed solely toward a claim which has not yet been determined to warrant any further litigation.
We therefore submit a protective order staying further discovery should issue in any event.
Intervenors' request for affirmative relief should in all circumstances be denied.
Respectfully submitted, Thomas G.
- Dignan, r
Robert K.
Gad III f
William S.
Eggeling Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 July 16, 1986 1