ML20211N229
| ML20211N229 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 12/15/1986 |
| From: | Lowry E GRUENEICH, D.M. (FORMERLY GRUENEICH & LOWRY), SAN LUIS OBISPO MOTHERS FOR PEACE, Sierra Club |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20211N234 | List: |
| References | |
| CON-#486-1899 OLA, NUDOCS 8612180165 | |
| Download: ML20211N229 (6) | |
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UNITED STATES OF AMERICA 07;WETED NUCLEAR REGULATORY COMMISSION USHRC
\
ATOMIC SAFETY AND LICENSING APPEAL BOARD '
~86 Da16 P2 53 CFFE'C ~
) ) 0C;' ,
., ',.x In the Matter of: ) Docket Nos. 50-275-OLA 1 ,.
) and 50-323-OLA >-
PACIFIC GAS AND ELECTRIC COMPANY )
)
(Diablo Canyon Nuclear Power ).
Plant, Units 1 and 2) )
)
MOTION TO ALLOW FILING OF
SUMMARY
DISPOSITION MOTION AND FOR REINSTATEMENT OF ORIGINAL SCHEDULE I. INTRODUCTION ,
4 Y
, y This motion is filed on behalf of Mothers for Peace and the Sierra Club, and seeks leave to file a motion for summary disposition as provided under section 2.749 of the NRC rules, 10 C.F.R. S 2.749. It also -~ seeks reinstatement of the schedule originally directed by the Chairman of the Atomic Safety and Licensing Board Para 1.
NRC rules specifically provide that any party may file a motion for summary disposition, which "shall" be filed according to the schedule as "may be fixed by the presiding officer." 10 C.F.R. 5 2.749(a). In this case, Mothers For Peace and the Sierra Club have been denied an opportunity to file a motion for summary disposition, based on a decision by the Honorable B. Paul Cotter, made, without notice, during a telephonic conference held on a different matter. In deleting the previously-set provisions for filing motions for summary disposition, originally due on 1
8612180165 861215 PDR ADOCK 05000275 G PDR
For Peace and the Sierra Club had not adequately answered
.c
.p interrogatories posed by NRC staff.
- Counsel for Mothers For Peace and the Sierra Club contended that the NRC Staff motion was untimely, because section 2.740(f) requires that motions to compel discovery must be filed within ten days of filing the allegedly inadequate responses. Chairman Cotter rejected this argument, ruling in his memorandum and order, dated December 1 and docketed on December 2, that he could nevertheless consider the NRC staff request to compel discovery as an aspect of " prudent case. management" and the " Board's obligation to insure that the proceeding is conducted in an orderly and expeditious manner."
In the memorandum and order, attached hereto as Exhibit B, Chairman Cotter stated that the Board had examined the record in the case, including the discovery, and had reached several conclusions. Some of the conclusions concerned setting dates for parties to file and exchange information concerning their direct case. Prefiled testimony, originally required to be filed on March 11, 1987, now must be filed by January 26, 1987. The hearing, originally scheduled for March 26, 1987, is now set for February 2, 1987. Additionally, the Memorandum and Order stated,
". . . the record makes clear that the essence of the matters at issue here is factual and that, consequent-ly, the likelihood of success of any motions for summary disposition is de minimis. The time, effort, and resources required to file motions for summary disposition, weighed against the likely success of such motions, leads the Board to conclude they are not warranted." (Memorandum and Order, p. 4.)
Although the order did not explicitly prohibit filing a motion 3
for summary disposition, as was indicated in the telephonic conference, the previously scheduled time for filing summary disposition motions was deleted and the schedule was accelerated as outlined above.
Hence, Mothers for Peace and the Sierra Club file this motion to the appeals panel.
III. THE PARTIES HAVE A RIGHT UNDER THE REGULATIONS TO FILE A MOTION FOR
SUMMARY
DISPOSITION.
Section 2.749 of the NRC's regulations states, in pertinent part:
"(a) Any party to a proceeding may move, with or without supporting affidavits, for a decision by the presiding officer in that party's favor as to all or any part of the matters involved in the proceeding ...
Motions shall be filed within such time as may be fixed by the presiding officer." 10 C.F.R. S 2.749.
The regulation clearly provides that any party may file a motion for summary disposition; there is no requirement that a party seek leave to file. All that is required is that the party file within such time as set by the presiding officer. Originally, Mothers for Peace and the Sierra Club were prepared to file by the presiding officer's December 29 deadline. In order to expedite this motion, Mothers for Peace and the Sierra Club are filing the motion two weeks in advance, concurrent with this motion.
Mothers for Peace and the Sierra Club are aware of no authority which grants the presiding member the power to refuse to consider motions for summary disposition or otherwise provide that there is no date for which they may be filed.
4
. - . - - . . . .- . -. . _ - =. - _ _ _
E December 29, Chairman Cotter also accelerated the hearing schedule from an originally contemplated March 26 commencement date to February 2, 1987. As described below, this schedule change will seriously compromise the ability of Mothers for Peace and the Sierra Club to participate effectively in this case.
This motion is directed to the Appeals Board, notwithstand-ing Mothers For Peace and the Sierra Club's recognition that the rules do not explicitly provide for this type of interlocutory appeal, and may.in fact prevent it. Nevertheless, Mothers For Peace and the Sierra Club urge that the Appeals Board consider 4
and grant this motion in the exercise of the Appeal Board's inherent jurisdiction to ensure that the right to file a motion for summary disposition, clearly provided in the regulations,
- remains more than hollow language, and to ensure a continuing sense of fair play for all parties.
II. PROCEDURAL BACKGROUND Hearings were originally scheduled in this case to commence j on March 26, 1987, per an order dated August 28, 1986, and docketed on August 29. (Exhibit A.) That order also contem-plated the filing of Motions for Summary Disposition on December
- 29. Mothers For Peace and the Sierra Club had contemplated filing such a motion, and had commenced work on the motion prior to the November 25 telephonic conference and December 1 Order, which denied them this opportunity.
Chairman Cotter presided at the conference, which was held at the request of NRC Staff concerning its belief that Mothers 2
i
Requiring consideration of this motion will work no preju-dice to any of the parties. All that Mothers for Peace and the Sierra Club are asking is that the ordinary procedures guaranteed to all parties be followed. For the same reasons, consideration of the motion will not unduly delay the proceedings beyond that contemplated in the ordinary course of hearings. Indeed, should the motion be granted in whole or in part, it may substantially shorten the time and expense of holding evidentiary hearings.
Mothers for Peace and the Sierra Club believe that the subject matter of the attached motion for summary disposition is proper. The motion concerns two legal issues for which no additional evidence need be taken: (1) the NRC's failure to prepare an Environmental Impact Statement; and (2) the failure of the reracking plan, on its face, to comply with the NRC's Standard Review Plan, NUREG-0800, despite the fact that the NRC's safety evaluation was conducted under the Standard Review Plan.
Accordingly, Mothers for Peace and the Sierra Club request that the Appeals Board direct either that the presiding officer consider the attached motion, or that the Appeal Board consider i
the motion itself.
IV. MOTHERS FOR PEACE AND THE SIERRA CLUB REQUEST THAT THE SCHEDULE ORIGINALLY SET, WITH HEARINGS COMMENCING ON MARCH 26, 1987, BE REINSTATED The schedule originally set in this matter contemplated the filing of summary disposition motions and answers thereto. It necessarily included consideration of the time required to analyze, formulate, and prepare such motions. Mothers for Peace 5
and the Sierra Club have concentrated much of their analysis on those issues which might be resolved by a motion for summary disposition. Moving up the time to prepare testimony from March 11 to January 26 will severely prejudice their ability to file their prepared testimony, and may in fact prevent their ability to do so.
This Commission is aware that both Mothers for Peace and the Sierra Club are citizens groups. They are limited by lack of funds. They do not, as do other parties, have a comparatively unlimited access to experts. Most of the work on this case on behalf of Mothers for Peace and the Sierra Club has been done by Dr. Richard Ferguson on his own time. Although the time he has devoted has been substantial, he has had to budget his time in light of the schedule which had been promulgated. With the new revision in the schedule, it is unlikely that he will be able to complete his testimony as he had hoped, and it is certain that it will not be prepared in as complete a fashion as he had hoped.
Accordingly, Mothers for Peace and the Sierra Club request that the time originally set for filing prefiled testimony, March 11, 1987, and for the beginning of the hearing, March 26, 1987, be reinstated.
Dated: December 15, 1986 Respectfully submitted GRUENEICH & LOWRY
. I By: W X Edwin F. Lowry 6
UNITED STATES OF AMERICA f[ht [
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD E AlXi 29 P3 '47 Before Administrative Judges: ggu ,, , , ,
00CMI 1:td 4 iri.:t:i B. Paul Cotter, Jr. , Chairman BRANCu Glenn 0. Bright Dr. Jerry Harbour
?JJ.',-ED AUG 2 9 L986
)
In the Matter of: ) Docket Nos. 50-275-OLA
) and 50-323-0LA PACIFIC GAS AND ELECTRIC COMPANY )
(Diablo Canyon Nuclear Power Plant, Units 1 and 2) ) August 28, 1986
)
MEMORANDUM AND ORDER On August 22, 1986, pursuant to 10 C.F.R. 9 2.718 (1986), the Board held a telephone conference to discuss scheduling the steps necessary to reach hearing in this proceeding. Participating in the. conference were: Bruce Norton and Philip A. Crane, Jr. for the Applicant, Pacific Gas and Electric Company (PG&E); Nancy Culver for the Mothers for Peace; Richard B. Ferguson for the Sierra Club; Dian M. Grueneich for both the Mothers for Peace and the Sierra Club; Laurie McDermott for Consumers Organized for Defense of Environmental Safety (CODES); and Lawrence J.
Judges Cotter and Bright constituted a quorum of the Board in the absence of Judge Harbour who was in hearing in another proceeding. 10 C.F.R. 5 2.721(d)(1986).
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EXHIBIT /) -
Chandler and Henry J. McGurren for the Nuclear Regulato ,. Commission Staff.
Petitioners Mothers for Peace, CODES, and the Sierra Club were admitted as parties to the proceeding by memorandum and order dated June 27, 1986. It appears that no discovery has been initiated since then with one exception.
That exception is the information exchanged, pursuant to the Board's direction, between PG&E and the Sierra Club in connection with the latter's Contention (I)(A). By a report served August 15, 1986, Dr.
Ferguson stated on behalf of the Sierra Club that he considered Contentions (I)(A)(1), (2), (5), and (6) resolved as a result of the information he had obtained. See Tr. 227. The Board noted in its June 27, 1986 Memorandum and Order at page 20 that " ... the c.ontention, as worded, goes to the availability of the data cited, not its accuracy or adequacy." Accordingly, the Board finds (1), (2), (5), and (6) of Contention (I)(A) to be resolved and withdrawn from this proceeding.
Contention (I)(A) now consists of subparts (3) and (4) only. Any petition for reconsideration of this ruling shall be received by the Board on or before September 12, 1986.
The Board proposed a schedule for completing discovery, filing motions for Summary Disposition, and commencing hearing (Tr. 235-236) that was discussed by the parties. The Board proposal would have EXHIBIT 4 -
)
allowed seven and a half weeks to complete discovery (fifteen and a half weeks since the parties were admitted). Alternate schedules and proposals were suggested. Tr. 244-246, 250-254. Counsel for the NRC Staff, Mr. Chandler, reported that Dr. Herrick, the principal author of the structural analysis underlying a significant portion of the Staff's Safety Evaluation Report for tne spent fuel pools, had died recently, Staff counsel was requested to report to the Beard on or before August 29, 1986, the Staff's best estimate of how soon a replacement for Dr. Herrick would be obtained for purposes of discovery. Tr. 247, 253-254.
Eight contentions have been admitted to the proceeding, one informational in nature and four with multiple subparts. In light of the parties' concerns, the Board has concluded that a longer period of discovery would be beneficial and has expanded its initial proposed discovery period by eight weeks. Accordingly, the Board sets the following schedule for completing discovery and proceeding to hearing:
DATE EVENT September 16, 1986 First round of interrogatories and requests for production of documents filed by all parties.
l October 3, 1986 All answers to first round of interrogatories and requests for production of documents filed.
October 20, 1986 Last round of interrogatories (if needed)
EXHIBIT 4 .
I f
I and requests for production of documents filed by all parties.
November 6,1986 All answers to last round of interrogatories and requests for production of documents filed.
December 8,1986 All depositions scheduled and completed.
December 29, 1986 All motions for Summary Disposition filed.
January 23, 1987 All answers to motions for Sumary Disposition filed.
February 18, 1987 Board issues ruling on motions for Sumary Disposition.
March 11, 1987 All prefiled testimony filed.
March 26, 1987 Hearing begins.
In the event no motions for Summary Disposition are filed, the schedule will remain the same for completing interrogatories, production of documents, and depositions with the remaining steps to be completed as follows:
DATE EVENT December 29, 1986 All prefiled testimony filed.
January 15, 1987 Hearing begins.
The foregoing schedule sets dates as maximums. The parties are encouraged to engage in prompt, voluntary discovery.
EXHBiT A .
4 Appended to this memorandum and order is a list of transcript corrections, most of which relate to misidentified speakers. Any additional corrections should be submitted to the Board on or before September 16, 1986.
ORDER For all the foregoing reasons and in consideration of the entire record in this matter, it is this 28th day of August,1986 ORDERED
- 1. That the NRC Staff shall advise the Board and parties promptly, on or before August 29, 1986 if possible, as to when Dr. Herrick can be expected to be replaced;
- 2. That the parties shall complete discovery and file motions for Summary Disposition and profiled testimony in accordance with the schedule prescribed in the foregoing memorandum; and
- 3. That the hearing in this proceeding is scheduled to commence on March 26, 1987 if Summary Disposition motions are filed or i
i
.EXHISIT A .
on January 15, 1987 if no such motions are filed.
THE ATOMIC SAFETY AND LICENSING BOARD (d& S B. Padl Cotter, Jr. ,- irman ADMINISTRATIVE JUDGE 8.
Glenn 0. Bright W
ADMINISTRATIVE JUDGE Atl & b1 QJerfy Harbour /'
i ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland, this 28th day of August, 1986.
EXHIBIT A
- n. ._ _ _ . __
1 DOLMElli UNITED STATES OF AMERICA "iNFL NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD '86 AlXi 29 P4 :02 Before Administrative Judges: 0FFILi .- . - "'
00CKlitSu . ' 7:U B. Paul Cotter, Jr. , Chairman BRAEC' Glenn 0. Bright Dr. Jerry Harbour - - - , -
>-...LD AUG 29 IS36
)
In the Matter of: ) Docket Nos. 50-275-OLA
) and 50-323-0LA PACIFIC GAS AND ELECTRIC COMPANY )
) (ASLBP No. 86-523-03-LA)
(Diablo Canyon Nuclear Power Plant, )
Units 1 and 2) ) August 28, 1986
)
TRANSCRIPT CORRECTIONS Listed below are corrections to the telephone prehearing conference held Friday, August 22, 1986 in the captioned proceeding. The parties are requested to submit to the Board any corrections or additions on or before September 16, 1986.
Transcript Page and Line Correction
- 1. 226; 3: PHIL GRANT, ESQ. 1. PHILIP A. CRANE, JR., ESQ.
- 2. 226; 7: NANCY CULZER 2. NANCY CULVER
- 3. 226; 11: DIANNE GRUENEICH 3. DIAN M. GRUENEICH
- 4. 226; 14: [ BLANK] 4. On behalf of the NRC Staff:
LAWRENCE J. CHANDLER, ESQ.
HENRY J. McGURREN, ESQ.
- 5. 227; 11: Laurel 5. Laurie l
EXHIBIT A
- 6. 228; 5, 15, 22, 25: 6. MS. McDERM0TT MS. CULZER
- 7. 229; 4: MS. CULZER 7. MS. McDERM0TT
- 8. 229; 9: MR. GRUENEICH 8. MS. GRUENEICH
- 9. 230; 11: Laurel 9. Laurie
- 10. 233; 12: MS. CULZER 10. MR. CHANDLER
- 12. 248; 7: MS. CULZER 12. MS. CULVER
- 13. 249; 7: MS. CULZER 13. MS. CULVER
- 14. 249; 14: Laurel 14. Laurie
- 15. 249; 15: Culzer 15. Culver 16, 261; 18, 23: MS. CULZER 16. MS. CULVER
- 17. 262; 3: to the party 17. to the parties J
i 1
4 l
EXHIBIT A .
UNITED STATES OF AMERICA NP*
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD g grg -2 P3 :31 Before Administrative Judges: ,
B. Paul Cotter, Jr. , Chairman Glenn 0. Bright Dr. Jerry Harbour CF'!E Cc: 2 1986
)
In the Matter of: ) Docket Nos. 50-275-0LA 4
) and 50-323-OLA PACIFIC GAS AND ELECTRIC COMPANY )
) (ASLBP No. 86-523-03-LA)
(Diablo Canyon Nuclear Power Plant, )
1 Units 1 and 2) ) December 1, 1986
)
MEMORANDUM AND ORDER I. Background On November 25, 1986, the Board held a telephone conference in the 4
captioned proceeding at the request of the Nuclear Regulatory Consnission Staff (the Staff). Participants in the Conference included representatives of the three intervening parties, Ken Haggard on behalf of Consumers Organized for Defense of Environmental Safety (CODES), Dian M.. Grueneich, Esquire, for the Sierra Club and the Mothers for Peace; Bruce Norton, Esquire, for Applicant Pacific Gas and Electric Company (PG&E); and attorneys Henry J. McGurren and Lawrence J. Chandler for the Staff.
, g - / ,./1 ~~~
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- AW2Te_w'/
EXHlDIT S
2 Staff Counsel stated that the reason for requesting the conference was to resolve Staff's dissatisfaction with responses to its interrogatories to the three intervenors and to avoid the time consuming process of filing motions to compel. Staff averred that NRC had not received adequate responses to two rounds of interrogatories requesting:
(1) a list of witnesses; (2) a list of exhibits; (3) a list of documents; and (4) a description of the views and positions of witnesses to be called.
Counsel for PG&E joined with the Staff in asserting that responses to PG&E interrogatories by the Mothers for Peace and Codes were inadequate. Although expressing some dissatisfaction with the Sierra Club's esponses, PG&E stated that the substance of its questions had been answered by Dr. Ferguson who named himself as a witness on behalf of the Sierra Club. However, PG&E argued that it was now too late for the intervenors to complete responses to interrogatories and that they should be barred from presenting witnesses and documentary evidence in the proceeding for their failure to respond in a complete and timely fashion.
Counsel for the Sierra Club and Mothers for Peace responded that, if Staff and PG&E's complaints constituted a motion to compel, the motion was untimely because it was required to be filed 10 days after the answers to interrogatories were filed and that the operative date i for the filing of answers was November 10, 1986. Consequently, motions EXHIBIT 3
to compel would have been due November 20. Therefore, counsel argued, PG&E and the Staff had slept on their rights and are not entitled to relief. Counsel also argued (joined by Mr. Haggard on behalf of CODES) that the three intervenors simply did not know what witnesses or documents they would rely on although counsel for the Sierra Club and Mothers for Peace asserted thct those two intervenors would have a better idea of witnesses and documentation after motions for summary disposition were filed. Counsel also argued that no ruling had been issued requiring that the information sought was needed by a date certain.
Counsel for PG&E responded it would be impossible to file a summary disposition motion until he was informed of intervenor's witnesses and their positions on the issues. Staff Counsel concurred.
During the telephone conference, Counsel for Mothers for Peace confirmed that their Contentions 2 and 3 had been withdrawn as stated in their Answers to Interrogatories dated October 3,1986.
II. Discussion 4
We need not reach the question of whether Staff's telephone conference request arises to the status of a motion to compel and, if so, whether the motion is timely. At this juncture, this Board's obligation to prudent case management overrides such concerns.
EXHlBIT B
This Board's obligation to insure that the proceeding is conducted in an orderly and expeditious manner is well established. 10 CFR Part 2, Appendix A, at p. 120 (1986). See also Statement of Policy on Conduct of Licensing Proceedings, 13 NRC 452 (CLI 81-8, 1981).
The degree of confusion and argumentation evidenced in the telephone conference and in the conduct of discovery in this case to date is not conducive to an orderly and expedited resolution of the issues in this proceeding. Consequently, the Board has examined the record in this matter including both the discovery conducted to date and the schedule set in our memorandum and order of August 28, 1986 and reached several conclusions.
First, the record makes clear that the essence of the matters at issue here is factual and that, consequently, the likelihood of success of any notions for summary disposition is de minimis. The time, effort, and resources required to file motions for sumary disposition, weighed against the likely success of such motions, leads the Board to conclude they are not warranted.
Second, it appears that circumstances warrant setting dates certain for all parties to file and exchange information concerning their direct case as follows:
(1) Witnesses who will testify on their behalf; EXHIBIT B
(2) Lists of exhibits they intend to introduce; (3) Documents upon which the witnesses will rely; (4) List of documents the parties intend to use on cross-examination (unless disclosure would compromise the cross-examination); and (5) A brief description for all witnesses listed (no longer than two pages for each witness) of the views and position on the issues about which they will testify.
Accordingly, the foregoing information for each party's direct case is to be filed by the parties with the Board and served on each other on or before December 23, 1986. If any party is not going to present documents or put on witnesses in their direct case, then they shall so notify the Board ard all other parties by December 23, 1986. In this context, the words " filed" and " notify" mean received. Documents and witnesses not identified by December 23, 1986 will not be received as a part of any party's direct case. If any of the parties now know of any documents or witnesses to be used on rebuttal, they should also be identified.
Thereafter, the parties are to schedule and complete any depositions of witnesses listed on or before January 16, 1987. This memorandum and order is not intended to preclude PG&E from taking the deposition of Dr. Ferguson reported by counsel as scheduled for December 4 or 5, 1986.
EXHIBIT 3
Prefiled testimony is to be filed (that is, received) with the Board and served on other parties on or before January 26, 1987. The hearing in this case will comence at 9:30 A.M. Monday, February 2, at Avila Beach, California.
It is so ordered.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
/
DdL F. Pattl Cotter, Jr. , C 1rinan ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland, this 1st day of December, 1986.
EXHIBIT 23