ML20214N621
| ML20214N621 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 09/12/1986 |
| From: | Eggeling W ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#386-692 OL, NUDOCS 8609160390 | |
| Download: ML20214N621 (10) | |
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.I Filed: September 12, 1986 UNITED STATES OF AMERICA D 5 i, d54gq 9G h9 C2.
NUCIFAR REGUIA'IORY CCPEISSION beforeithe N'
muqIc SAFEIY AND LICENSDG BOARD
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In the Matter of
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Docket Nos. 50-445 and TEXAS UINJS GENERATING CCEPANY,
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50-446 et al.
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(Application for an (Comanche Peak Steam Electric
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Operating License)
Station, Units 1 arri 2)
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APPLICANIS' RESPONSE 'IO BOARD'S ME20RANDUM AND CRDER (Management T= = Under Contention 5; CASE Request of July 2. 1986) OF SEPITNBER 2.1986.
In its " Memorandum and Order (Management Issues Under Contention 5; CASE Request of July 2,1986)" dated September 2,1986, the Board opines that "we are firmly of the position, which we declare to be the law of the case, that management issues are related to pending issues and are discoverable when they are directly or indirectly related to the context we are about to set forth." Unfortunately, the Board nowheze expressly defines what it meant by the term " management issues." As W= clear during the Pre-Hearirg Conference of August 18-19, moreover, that term, though frequently invoked, has been interpreted very differently by different people in different contexts.1 'For this reason and others which will be apparent from the substance of this Response, Applicants believe it appropriate to address their understanding of the Board's pronouncements.
1 See also Applicants' Response to ' CASE Response to Applicants' Motion for Protective Order Re 6/27/86 Disccvery and Motion to Campel,'
filed September 2, 1986, at Note 7.
l 8609160390 860912 PDR ADOCK 05000445
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o I.
We note first that it is not our view that the portion of the Board's opinion discussing " management issues".was properly - or was intended by the Board to be - simply a statement of basis for its ruling on the Applicants' objections to the CASE discovery of July 2, 1986. To the contrary, the title of the Memorandum indicates it was intended to serve two separate functions, one of which was specifically to issue this pronouncement. Moreover, if the Board's pronouncement on " management issues" was intended to be anything broader than sinply a recognition that
" management" (however defined) could possibly be a potential root cause of any deficiency found by the CPRP, then it was not r-<:ary to the rulings made by the Board on the CASE motion to ocupel which was before it.2 It is thus apparent to us that the Board's Memorandum was intended to ccanunicate to the parties smething significant with respect to the future scope of the term " management issues," ADLi to rule upon the specific discovery dispute which was the only matter actually before it. Even with the benefit of this key to interpretation, however, sme potential for ambiguity exists. Prudence therefore suggests we set fcrth both what we are clear the Board could not have meant, as I
well as what we believe it did intend.
2 As expressed in the Board's Rulings on pages 3-5, Applicants' objections to CASE's extraordinarily detailed and overbroad requests for discovery on the history of 'IRf/SSER allegations were sustained, saving to j
CASE the e Lunity to get substantially similar information by means of Request.No. 4 in the Board's Memorandum (Assistance to Board) of August 8, 1986, as interpreted by its Memorandum and Order of September 2 - viz.:
with respect to each TRE or SSER issue sustained by the CPRT, the history, as found in rh'unants and as known to accountable employees and supervisors, of how Applicants knew of that issue over time and how they responded to it..
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II.
To whatever extent the Board Ea?[believe that - perforce the first portion of its Memorandum or otherwise - the issues nnheimaa by what is known in NRC jurisprudence as " management character and competence" have been admitted for litigation in this prrmading, the Applicants respectfully suggest the Board would be legally in error and they would object.
(Since there has assuredly been no sucti explicit ruling of the sort described immediately hereafter, there would appear to be no proper vehicle for current appellate review of such an interpretation of the Board's 9/2/86 Memorandum.)
We do not understand the Board to have such a belief, however; for the following reasons.
Following the close of the initial contention period (in this case, many years ago), additional inanaa may harma admitted into a contested Operating License prrmading in only two ways. One is for an intervenor to move the adm4=sion of a late-filed contention. h other is for the Board to admit an issue under its g g sconte authority.
Either of these devices requires an explicit Board order, and the former requires a motion. h motion requirement serves to define with the requisite specificity what the proposed issue is and to demonstrate its proponent's ability to meet the late-filed contention criteria set forth in 10 CER sec. 2.714(a) and the Catawba decision of the Cemiminnion. Duke Ptwer Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041 (1983). A ruling on the motion is required in order to memorialize the Board's careful consideration of those criteria and to provide a vehicle for appellate review..
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In the case of the latter, sua sconte agroach, an explicit ruling is required in order to descrs:L ate that the criteria of 10 CFR sec. 2.760a 1
have been considered and met. It}also serves to permit invocation of the special provisions for interlocutory Ccanmission review via the CGC (as well as the policy pronouncements of the himion in decisions such as Comanche Bd; (Texas Utilities Electric Co. (Ocnnnche Peak Steam Electric Station, Units 1 and 2), CLI-81-24,14 NRC 614 (1981), and CLI-81-36,14 NRC 1111 (1981)), Waterford (Iouisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1 (1986)) arxi Perry (Cleveland Electric Illuminatinci Co. (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-7, 23 NRC 233 (1986)).3 4
It would not seem to be disputable that there has been no such ruling admitting additional issues in this prmaaiing, either by allowance of a motion for a late-filed contention or by exercise of the Board's sua sconte authority. Nor are there any pending motions for whimion of a late-filed contention. IIviaai, as we have previously pointed out, two such motions to admit exactly such an issue were previously made and denied.
It therefore follows ineluctably that the " management ccxnpetence and 3
'Ihese procedural safeguards will also serve to assist a Licensing Board in avoiding the pitfall of confus[ing) its inherent power to shape the course of the pr w ing... with its limited authority under 10 CFR 2.760A to shape the issues of the prWing.
Comanche Peak, supra,14 NRC at 1113 (citation cuitted).
4 If such a ruling were entered, of course, it might (at least until vacated or reversed) hamna " law of the case " An abstract pronouncement cannot, however, ham'a law of the case by lose dixit divorced from some operative ruling to which the pronouncement was a required ccxnponent of the decision..
character" issue recognized in decisions such as South 'Ibxas cannot - on the current state of the record of this OL prMing - justify discovery requests or any other obligations'or duties which may be sought to be L W upon Applicants.5 It would thus be inappropriate for us lightly to ascribe any such intent to the initial two pages of the Board's September 2 issuance, and we shall not do so.
III.
Instead, we understand the Board's expression of its concerns to have been intended to c:anunicate its current belief that management activities, in the causative sense,6 may yet provide the explanation for inadequacies in 5
In addition, to whatever extent the Board may view it within its authority to conduct what amounts to discovery of information in order to decide whether the _sua sconte authority should be invoked, we respectfully direct the Board's attention to the re=nimion's decisions in Waterford, supra, 23 NRC at 7, and IMrry, supra, 23 NRC at 236 n.1, which hold that the Board has no such authority.
6 As opposed to the vicarious responsibility with which Management is always charged. See the discussion in Applicants' Response to " CASE Response to Applicants' Motion for Protective Order Re 6/27/86 Discovery and Motion to Cmpel," filed Septaber 2,1986, at note 7.
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l Applicants' QA/QC programs. We further understand it to request that Applicants make available - in rsp:, to the Board's Request for Assistance No. 4 or future appropriately crafted discovery requests -
information in their custody, Im==== ion or control which is properly related to management's direct causative role with respect to such irsadamwies as may be confiMas a result of Applicants' CPRT efforts.
We also perceive that this clarification of what is meant by the term
" management i====" could substantially vitiate the concerns Applicants have We are also somewhat troubled by another apparent ambiguity in the Board's language. At a few places there is reference to a u.am=pL that evidence may be "directly or indirectly relevant" to the la=== in the t
Operating License y,._-
a-Mng.
Since this terminology has been encountered before, it seems time to note its serious deficiencies.
Relevance is not an undefined term. To the contrary, it is a finite um pl defined by specific Cu.f.assional and hiaaion pronouncements. 'Ihus, " relevant evidence" is that which has any t==miency to make the existence of any fact that is of u ssequence to the determination of the action more probable or less probable than it would be without the evidence.
Fed. R. Evid. 401. All evidence which is not relevant evidence, is by definition irrelevant evidence. 'Ihere are no shadings; nor do adverbs add anything but the potential for confusion.
We have previously understood the Board's references, including those in its September 2 opinion, to have been intended as a shorthand for the concerns reflected in Fed. R. Civ. P. 26(b)(1) and its Camnission counterpart,10 CER sec. 2.740(b)(1), that discovery nust sometimes be permitted to delve into areas beyond the specific production of relevant information. We have no quarrel with that uma.=pi, which is well enshrined in American jurisprudence. It is, however, inportant to keep sight of the fact that the standard for such excursions
" reasonably calculated to lead to the discovery of admimalble (1,.m., relevant, gg Fed. R. Evid. 402]
evidence" - requires a balancing of the burden i==ad by such discovery against the potential gain that may be realized thereby. We ra=twtfully
=vy==t that terminology such as "directly or indirectly relevant
[...related)" threatens to <+wwu these principles and to place the Board and the parties unrwaaaarily at odds with respect to the location of these boundaries..
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previously eg.u.M with regard to this matter. If consistently enployed by all the participants to this pr*Ng, it might serve as well to reduce significantly the serious due pr-eproblems which would otherwise arise.8 By I
thus interpreting the Board's effort as one intended to properly delimit and sharpen the definition of the issues to be litigated, we would be prepared to acknowledge that its vaa yLion of "marngement i==" could in fact ccne within the scope of Contention 5.9 (Indeed, as so defined it would be consistent with the "i==" under Contention 5 as they have previously been understood and would be essentially congruent with efforts already undertaken to provide reasonable assurance of the safety of the CPSES 4
plant.)
In furtherance of that interpretation, therefore, and of our belief i
regarding the spirit and intent of the Board's September 2 Memorandum, the i
j Applicants will undertake to reinvigorate their effort to insure root cause analysis takes into account the Board's expression of its views and that -
to the extent information with regard thereto is developed - it is made available.
i See, e.a., Moraan v. United States, 304 U.S.1,18-19:
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"'Iha right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them.
'Ihose who are brought into contest with the Government in a quasi-judicial prMing aimed at the control of their activities are entitled to be fairly advised of what the Gova.mr.ut prreas and to be heard upon its proposals before it issues its final connand."
It should be apparent that, without a sharply delimited definition such as we understand the Board to have intended by its September 2 action, the phrase " management issues" will bear so many possible meanings that decisions based thereon nust rwwwily violate Applicants' rights.
9 Assuming, of course, a proffer of a sufficient causal nexus between the 'W1 uL issues" sought to be litigated and scue design or construction deficiency..
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IV.
If,contrarytotheforegoing,[thisBoarddidinfactintendits Memorandum and Order to effectively admit a new issue for litigation in this contested prw ing, the Applicants believe such admisssion is legal error, for the reasons set forth above. In such case, the Applicants nust respectfully object to the Order. ~10 CER secs. 2.752(c), 2.710.
Respectfully subnitted, o
r
'Ihanas G. Dignan, Jr R. K. Gad III William S. Eggeling Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 L
1 l
e CERTIFICA'T5 OF SERVICE I,
William S.
Eggeling, one of the attorneys for the Applicants herein, hereby certify. that on September 12, 1986, I made service of the within " Applicants' Response to Board's Memorandum and Order (Management-Issues Under Contention 5; CASE Request of July 2, 1986).of September 2, 1986" by mailing copies thereof, postage prepaid, to:
Peter B.
Bloch, Esquire Mr. James E..Cummins Chairman Resident Inspector Administrative Judge Comanche Peak S.E'S.
Atomic Safety and c/o D. S. Nuclear Regulatory Licensing Board
' Commission U. S. Nuclear Regulatory P. O.
Box 38 Commission Glen Rose, Texas 76043 Washington, D.C.
20555 Dr. Walter H. Jordan Mr. William L.
Clements Administrative Judge Docketing & Services Branch 881 W. Outer Drive U. S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Washington, D.C.
20555 Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.
S. Nuclear Regulatory U.
S.' Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Stuart A. Treby, Esquire Mrs. Juanita Ellis.
Office of the Executive President, CASE Legal Director 1426 S.
Polk Street O.
S. Nuclear Regulatory Dallaq, Texas 75224 i
Commission Washington, D.C.
20555 i
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>o Renea Hicks,. Esquire Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Board Panel Division
.,U.
S.
Nuclear Regulatory P.
O. Box 12548 Commission Capitol Station Washington, D.C.
20555 Austin, Texas 78711 Anthony Roisman, Esquire Mr. Lanny A.
Sinkin Executive Director Christic Institute Trial Lawyers for 1324 North Capitol Street Public Justice Washington, D.C.
20002 2000 P Street, N.W.
Suite 611 Washington, D.C.
20036 Dr. Kenneth A. McCollom Mr. Robert D.
Martin Administrative Judge Regional Administrator 1107 West Knapp Region IV Stillwater, Oklahoma 74075 U.
S. Nuclear Regulatory Commission Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 Ms. Billie Pirner Garde Geary S. Mizuno, Esquire Citizens Clinic Director Office of the Executive Government Accountability Legal Director Project U.
S.
Nuclear Regulatory 1901 Que Street, N.W.
Commission Washington, D.C.
20009 Maryland National Bank Bldg.
Room 10105 7735_Old Georgetown Road Bethesda, Maryland 20814 Elizabeth B.
Johnson Nancy Williams Administrative Judge Cygna Energy Services, Inc.
I Oak Ridge National 101 California Street Laboratory Suite 1000 P.
O.
Box X San Francisco, CA 94111 Building 3500 l
Oak Ridge, Tennessee 37830 i
}Ak y
William S."E ling l
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