ML20236N809
| ML20236N809 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/10/1987 |
| From: | Eggeling W ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | |
| References | |
| CON-#487-4823 OL, NUDOCS 8711170016 | |
| Download: ML20236N809 (13) | |
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l OFrfcr c er UNITED STATES OF AMERICA 00CXf.ip;;;w(. '4 ;
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NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of ) Docket Nos. 50-445-OL
) 50-446-OL TEXAS UTILITIES GENERATING )
COMPANY et al. )
) (Application for an (Comanche Peak Steam Electric ) Operating License)
Station, Units 1 and 2) )
)
APPLICANTS' RESPONSE TO PROPOSED LITIGATION SCHEDULE At the conclusion of the Pre-Hearing Conference held in Dallas on November 2 and 3, the Board announced that it intended to enter a schedule for the completion of litigating the issues remaining in dispute in this docket. The Board further announced its plans with regard to that schedule, the I
elements of which were to be drawn from the schedule proposed j by the Staff in its Response to Applicants' Motion for Establishment of Schedule. The Board asked the parties to submit written comments on this schedule no later than Tuesday, November 10. Applicants' comments are set forth ;
herein.
8711170016 871110 PDR ADOCK 05000445 _
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.We note first that while none of'the parties may be entirely pleased by the Board's schedule --- for example, Applicants are unsure whether it can achieve the expedition which they believe.their proposed schedule might have produced -- we did not understand the Board's invitation to
'. include the opportunity for reargument of the points and considerations debated at length during the Pre-Hearing Conference. We have therefore confined our analysis to !
possible ambiguities or inadequacies within the framework of the' schedule as proposed by the Board, and will suggest modifications only where we believe that they might increase-
.the. chances of that schedule's achieving the resolution methodology which the Board has indicateil is its* preferred approach.
II.
The Board's recognition that the issuance of a Project Status Report or the Collective Significance Report should expressly trigger commencement of discovery on all informa-tion properly grouped within the area of interest addressed by the Report is a distinct improvement on the less specific directions contained in the Applicants' schedule. While we anticipate that concerns about timing may be raised by one of the other parties, we believe that such concerns can be
. addressed easily within the framework the Board has proposed.
For example, it should be relatively easy for the parties, proceeding diligently with discovery as encouraged by the Board ~, to expeditiously identify any possible subsequent reports, (e.g., the Cygna Report or the CPRT Collective Evaluation Report), which could be said to be within the Report's area of interest, in whole or in part, and thus appropriately grouped for litigation thereunder. In the event that any party, upon motion, can demonstrate that additional time is required due to delay in obtaining such ,
report, the Board can consider appropriate relief in such circumstances. Since it would seem that no relief would be warranted unless the Staff's SER were to be issued so early that the details of the related information would be practi-cally unobtainable -- an eventuality which we believe to be unlikely -- we believe the Board.was correct in requiring that discovery be undertaken generally on all potential issues which may be within a Report's area of interest, in whole or in part, and thus appropriately grouped for litiga-tion thereunder. While such a procedure may not invariably lead to those issues being litigated to their conclusion at any particular point in the hearing process (based upon the outcome of any motions for adjustment of schedule as noted above), it will help meaningfully to ensure that any issues which may become ripe upon the issuance of a project Status
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Report or the Collective Significance Report will thereafter be processed for prompt closure.
i III.
The procedures for responding to and disposing of any
. l motions for summary disposition were not expressly contained' in the Board's schedule. Upon consideration, we have . ,
concluded that this need not be remedied. As the Board urged, the parties should be encouraged to submit motions for summary disposition of any specific technical matters which might be most economically. processed under that format.
Presumably they should also not be discouraged from advancing any. motions for summary dispostion which they in good faith l believe are appropriate. They should thorefore not be pena-lized or discouraged from advancing (or opposing) such !
motions by an automatic rearrangement of the schedule upon such filing. It would be more approriate to require the parties, as in other similar situations, te address to the !
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Board any specific requests for modification of the schedule in connection with pending motions for summary disposition. 1 Not only will this remove potential incentives and disincen-tives which might be counterproductive, but the Board wili be i
much better informed by a review of the subject matter of the l 3
i motions and any renponses thereto. Thus, any schedule 1 i
i modifications which may eventually be permitted are more {
l likely to be fair and equitable to all.
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:Wefare'a:-bit = concerned'that the~ Board's schedule; permits for1 discovery of thel"
[Apq11 cants and th'e: Staff no time y[ (Intervenor'af ter lthe ~Intervenor specifies the issues /it l
wishes"to11'itigate.. ,This sequence 1 poses'some. risk of. q
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unfairness. - For example, if the Intervenor:were to decline 74
- 'to provideLfu11' discovery offits' evidence'and witnesses until after_'it notifies the other parties?of the issues it wishes-to litigate,.the~other1 parties would obviously:be atya ..
distinct disadvantage. 'On,the other hand, providing'a specific ad'ditional time period: for focussed ' discovery by' 3; " Applicants'and Staff followi'ng the Jntervenor's specification
> ' of:its proposed:issuesEcould unduly' lengthen the schedule and-
'should'be: unnecessary, if the Intervenor provides full'
-discovery - ' including the identity of its' witnesses --
- sufficiently-prior}the time that discovery closes to permit 1
~t heir-depositions to be taken if necessary.
3 Upon. reflection, we think that it would be prefernble to avoid adding another period of possibly. unnecessary deiay and .;
j rely instead upon the presumption that the Intervenor will not use the fact that it is not required to specify the issues to be actually litigated until comparatively late in the process as a basis for avoiding or delaying discovery.
L We would expect that the Board could help insure this result, if necessary. We would also trust that, as a concomitant to 6 - I r
such:an. approach,.the. Board would. entertain requests to
- reopen discovery upon an' adequate showing that the informa-tion sought was essential.and could'not have'been obtained, .
despite due' diligence, during the period afforded. In the>
event that any such requests were determined to be merito-i-ous, the Board could consider at that time whether it was necessary or appropriate to delay the commencement of any subsequent events on the originally promulgated schedule.
- V. .
The Board did not directly address the question of the format of hearings, perhaps because it properly concluded it was ltoo cerly to engage in such specification.. Applicants o remain concerned that adoption of the Staff's multiple trigger framework could later be treated as a prescription requiring piecemeal, serial litigation of issues -- an ;
exercise which might easily be unnecessarily wasteful'and i
time consuming. We therefore suggest'the Board expressly .
1 preserve its options in this regard, noting that the expected culmination of Phase III is to be the commencement of hearings on whatever issues are then still in dispute, are ripe for consideration, and can appropriately then be grouped for such resolution without causing any undue delay or violating any parties' substantive rights.
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< CONCLUSIONS n ~ .y ;1 '
- In1 the expect'ation that'it might be usefu1~to us and'to the l
. Board,.and might'as-well'more clearly express Applicants' few-m mino'r' suggestions jwe'have: attempted to capture what we l , .i y . understood to be the schedule proposed.by the. Board, captur ,
ing'where appropriate quotati'ons from.the' transcript.- We ,
. - have modified .it in those few places'where we fe.el potential
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ambiguities.or other concerns might appropriately'be' removed. .
c 1 ;i A copy'of t' hat Schedule is appended for.the~ Board's con- '
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' TEXAS UTILITIES ELECTRIC COMPANY
' For.the Owners of CPSES-u i
" -By its. attorneys,
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%- Of William-S~. Eggeling / ](
Ropes .& Gray y 225 Franklin S.reet
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Boston,-Massachusetts'02110
'(617) 423-6100 ;
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APPENDIX i
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' . PROPOSED:
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- '~LITIGATION' SCHEDULE'
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-PSED., RELA ~.i, L' DAYS ' TIVE^
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A- EVENT LAST:, -PSED NO. E8 VENT DAYS 1 DESCRIPTION 1 g~ .. I i
. Publication ~of triggering Report - : Project:
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l' 'O Status' Report (PSR) orl Coll'ective Sig ' j I
nificance: Report (CSR) -- - by. Applicants., .
.To be served'upon.all parties by overnight delivery, .
4
~ Discoveryf 0 pens on all matters in'thef area:
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2 0 0
' of interest covered by or subsumed within.
__the issues addressed by the Report; viz . , -
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d iscovery'is-to encompass.' additional-information,' documents, reports, or.
evaluations (e'g., Cygna' Reports, CPRT.
j Collective' Evaluat ton Report ,: etc . ), the; consideration of which is lo'gically grouped in wholeLor'in partewith:the. matters 9 contained within the Report.. Discovery may-be' propounded'in:accordance:with the Rules-of Practice ~as long as.the-responding t -
parties receive the-time'provided'there- .-j under to respond by the date. Discovery Closes, viz'. Event 4.
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1 PHASE II :
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' Staff issues its Evaluation Report (SER) on ,
the subject Report. l l
} 20 Evt 3 Discovery Closes; viz., responses to all plus proper discovery tinely requested during 20 Event 2 are to be received by propounding parties.
5 10 Evt 3 CASE's Notice of Issues to be Litigated plus (CASE Notice) to be received by Applicants 30 and Staff. The CASE Notice shall specify the area, or issues, within a Report which CASE believes are properly litigable along i with a statement of the reasons it intends to rely on and a statement of the basis for challenging that particular area, or ,
- issues.
G 20 Evt 3 Last Day for receipt of any Appositions to plus an issue advanc7d by a CASE Notice (Event 50 5). Applicants and the Staff may signal .
they do not intend to contest the specifi-cation of any issues in a' CASE Notice at any time during this event.
7 0 Evt 3 Last day for receipt of any Motions for plus Summary Disposition. Responses due per 50 Rules of Practice. Unless moved for and ordered by the Board, the filing or j pendency of Motions for Summary Disposition
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shall not delay the seheduled commencement /
or completion of any subsequent events.
8 Evt 6 Board notifies the parties of its ruling plus ' upon any matters put in contention during l Event 6. In the event that Applicants and l' Staff signal that they do not intend to contest the specification of any issues i contained in a CASE No'tice, this event will i be complete upon the service of such !
l signals.
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j PHASE 1II;
, g-Par.ti'es ' exchange and' file : Direct testimony.
f30! Evt 8 .-
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$9' D plus- ~ pursuant to-10..CFR:6 2.743.
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10' '215r Evt?8 ~ ; Parties' exchange and' file: Rebuttal Tes- !
j plusl -timony. pursuant't'o'10 CFR16 2.743
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Evt18- Hearings-commence. , l
' ' 11. 15- ,i i2 plus.
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~?: Hearings End; Record Closes d
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- 30. Evt 12 ' Applicants file.their proposed; findings of
.plus! fact and' conclusions'of. law pursuant-to 10 .
-30 + CFR 6 2.754 .
- l t L10 Evt 12 CASE' files its proposed findings of' fact d j
~ 4: plus' :and conclusions'of law pursuant to 10 CFR 6 1 ' >> 40- 2.754. y 15- 20 Evt 12 ~ Staff files'its proposed; findings of-fact j plus andLconclusions of~ law pursuant to 10'CFR 6
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. GENERAL PRINCIPLES q 1
Unless otherwise expressly noted, all. dates are dates 1 0: of receipt ~or completion of required action,-notifications,-
' filings, etc. -Parties are responsible for commencing their l actitivies or utilizing methods'of service, etc., sufficient l
to ensure that~these dates are met. Parties requesting extensions of time shall either ; obtain the' agreement of all parties or move'the Board for l 0- enlargement ~ based upon good cause shown and upon notice to . all' parties. Parties are encouraged to raise any perceived- l need for additional time promptly and to be explicit about
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a the reasons for such requests. Unless the commencement ~f o an event is specifically reflected to be dependent upon the ; completion of a prior event, the enlargement of the time to complete a prior event shall not automatically alter the For example, an time'for completion of the later event. enlargement'of the time to submit motions for summary : i u
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. dispo'si t ions j ( Even t' . 7 ) shall not,,except'upon expre'ss Board-s- Order > or agreeinent- of' the parties t enlarge . the - time ;for
* . completion of.the next' activity imposed upon the1 parties --
{ . the. preparation and -exchange of,. pre filed 'direc t' tes t imony
-(Event 8)..
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'All calculation dates are' calendar ~ days, except that'if
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the~end of a'~ period'Lon which action,. receipt,' notification, 1 7
- 'etc., i's required to-be completed'or
- received falls'.on a Saturdayi Sunday or. Federal Holiday, the date.shall automa-tically.be' enlarged ~to the next calendar day khich.is'not.'a Saturday,' Sunday or' Federal Holiday, and all subsequent
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Events which are dependent upon the:.thus- automatically enlarged'date shall be ad,)usted.accordingly. '
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LDOCKETED
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=117 (NOV 13 P3.03,
~ CERTIFICATE OF SERVICE FFICE OF.5ECRElARY i
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lifd g fVff.l I, William S.-Eggeling, hereby' certify that J1987, and-' November 10, '1987, 'I made; service. of " Applicants' Response- Tof Proposed : Litigation Schedule"
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by ' mailing.' copies:
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?". thereof,1 postage prepaid,fto:-
.* Peter B.zBloch, Esquire ** Asst.' Director for-Inspection Chairman Programs' , , . . . . q
. Comanche Peak Project Division _
Administrative. Judge. _ . I Atomic Safety and Licensing U.S._ Nuclear Regulatory l Board- Commission U.S. NuclearLRegulatory. P.O.JBox 1029 L Commission Granbury,. Texas 76048 East West-Towers' Building - 4350~ East West Highway ,
.Bethesda, MD'.20814 ni
*Dr. Walter H.-Jordan *Ms. Billie PirneriGarde-Administrative Judge GAP-Midwest Office ,
881 W. Outer Drive 104 E. Wisconsin Ave.. -B: " Oak Ridge, Tennessee 37830- Appleton, WI 54911-4897
** Chairman ** Chairman Atomic Safety and--Licensing- Atomic Safety and Licensing Appeal _ Panel Board Panel'
'U.S. Nuclear Regulatory U.S. Nuclear Regulatory 1
~ Commission. . Commisssion East West Towers Building- . Washington, ' D.C. 20555 ]
4350' East West ~ Highway- '
.Bethesda, MD 20814
*Janica E. Moore *Mrs.'Juanitt Ellis Office of the General Counsel President, CASE U.S. Nuclear Regulatory 1426 S. Polk Street .j 1 Commission Dallas, Texas 75224 J East West Towers Building 4350 East West Highway
+
Bethesda, MD .20814
**Renea Hicks, Esquire ** Ellen Ginsburg, Esquire .
Assistant Attorney General Atomic. Safety and Licensing j Environmental Protection Division Board Panel i
~P.O. Box 12548 U.S. Nuclear Regulatory l Capital Station Commission !
Austin, Texas 78711 Washington, D.C. 20555 l 4 i
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- Anthony Roisman, Esquire **Mr. Lanny A. .Sinkin Suite ~600 Christic Institute i 1401 New York' Avenue, N.W. -1324 North Capitol Street l Washington,.D.C. 20005 Washington, D.C. - 20002- !
*Dr. Kenneth A. McCollom **Mr. Robert D. Martin ~'
-Administrative Judge Regional Administrator 1107 West Inapp Region IV
'Stillwater, Oklahoma 74075- U.S. Nuclear Regulatory. 1 Commission Suite ~1000 611 Ryan Plaza Drive .
Arlington, Texas 76011
- Elizabeth B. Johnson **Geary S. Mizuno,' Esquire !
Administrative Judge Office of the Executive Oak' Ridge National Laboratory Legal Director -; P O.. Box X, Building 3500 U.S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission I Washington, D.C. 20555 l
** Nancy H. Williams ** Jack R..Newman, Esquire J
2121'N. California Blvd. Newman & Holtzinger, P.C. ] Suite 390 Suite 1000 1 Walnut Creek, CA 94596 1615 L..St., N.W. I y. William S. E'gge hg } ( * =' overnight mail for delivery on November 10, 1987) l (** = service made by mail on November'10, 1987) J l 1 i 1 l, i 1 _ _ _ _ _ _ _ - . _ _ _ _ _ . _ _ _ _ a}}