ML20137L842

Response Opposing Applicant Motion for Extension of Time for Answering Case 851115 Interrogatories.Applicant Had Ample Time to Formulate Objections & Should Respond by 851202. Certificate of Svc Encl.Related Correspondence

ML20137L842
Person / Time
Site:	Comanche Peak
Issue date:	11/27/1985
From:	Roisman A TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
To:	Atomic Safety and Licensing Board Panel
References
CON-#485-367 OL-2, NUDOCS 8512030544
Download: ML20137L842 (9)

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o WIED Cont <t.crunogneg DO U ETED UJNisc UNITED STATES OF AM @I NUCLEAR REGULATORY COMilS 1 g2 fdO 15 BEFORE THE ATOMIC SAFETY Sgg,, g,,

AND LICENSING BOARD t t 'tiG 4 Sr 'N.

BilANCH In the Matter of )

)

TEXAS UTILITIES GENERATING )

COMPANY, et al. ) Docket Nos. 50-445-2

) and 50-446-2

)

(Comanche Peak Steam Electric )

Station, Units 1&2 )

CASE OPPOSITION TO APPLICANTS' MOTION FOR ENLARGEMENT TO TIME FOR ANSWERING INTERROGATORIES (CASES'S SET OF 11/15/85)

BACKGROUND Over the last four months this Board has issued three Orders addressing in whole or in part the status of discovery in this proceeding. In addition a Prehearing Conference on November 12 was held solely to address discovery issues. Each Order and the Conference have been focussed on the excuses offered by Applicants for

-not responding to discovery. Later rulings repeat earlier rulings

'- because despite the earlier rulings Applicants still had not substantively responded to discovery. The Prehearing Conference was necessitated by Applicants' refusal to answer discovery until the last minuteya tactic noted by the Board at the end of the Prehearing Conferencs when all parties were urged to act as though a prehearing conference were just about to be held in responding to discovery requests.

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0512O30544 e51127 5 PDR ADOCK 05000 l

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) At the November 12 Prehearing Conference CASE ~ indicated that within 10 days it would file a discovery request focussed on identifying persons retained by Applicants to identify and correct deficiencies who were not now designated for use in the hearing and would also provide Applicants with the opportunity to challenge CASE's i

standard instruction for answering interrogatories. The November 15th interrogatories are in fulfillment of that commitment.

Contrary to Applicants' assertion in its motion the interrogatories were filed and served by hand on Applicants' counsel (Mr. Reynolds) on November 15, before 6 p.m. Responses are due on Friday, November 29. CASE orally accepted Applicants' assertion of a December 2 due date for purposes of seeking to resolve the matter amicably. We agreed to the requested extension to the extent substantive answers were to be provided but felt that Applicants have had ample time to formulate any objections and should do so at least by December 2.

ARGUMENT

. Why argue over seven days?

Obviously, if this were the first discovery request or if Applicants had been diligent in responding to previous CASE discovery our view would be different. But when viewed in the light of a CASE discovery request filed in May to which (with the exception of a few contracting documents and thirty NCRs) no substantive response has been received we feel abundantly justified in opposing a demonstrably deficient request for an extension of time to answer 15 interrogatories.

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-start with the fact that the NRC has decided that fourteen days to _sspond to interrogatories is a reasonable period of time.

Surely the Commission could not have believed that 15 interrogatories would unduly tax the respondents' ability to answer.

The subject area of many of the interrogatories had already been addressed in questions filed in our May 28 letter to Mr.

Wooldridge (none of which have been fully answered) and the latest set represented a more precise subset (necessitated by the need to flush out Applicants' view on the discoverability of data from third parties) of the original set as the following comparison illustrates:

Compare November 15 May 28 0.1 0.12 & 13 02 0.14 Q.6 0 12, 13 & 14 0.7 0.12, 13 & 14 o 0.9 Q.l(a)(e)(f)&(g)

Thus Applicants have had six months to decide what information existed as to many of these questions. Many of the questions seek extremely limited information or information that should be readily available. E.g. Q.1, 3, 5, 9, 12, 13, & 15.

Significantly App)'. cants have not offered to answer or otherwise respond to any questions by the regulatory required due date.

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The reasons given by Applicants for not responding within i the prescribed time are unpersuasive. Applicants' junior Counsel had 14 days to arrange meetings with CPSES personnel of which at most four were unavailable but apparently did not seek to arrange the meetings until November 25 (10 days after the discovery request was filed) when he called counsel for CASE to request an extension of time. The November 19 and 20 meetings in Bethesda were attended by at least one lawyer from three of the four firms representing Applicants although

none spoke and the meeting was fully transcribed. Even assuming this was not representational overkill, given the number of other lawyers also representing Applicants, the supervening meetings of November 19 and 20 do not present a legitimate excuse.

What Applicants' motion discloses is that answering CASE discovery requests is given a low priority. Obviously Applicants did not immediately get to work in answering the request. Obviously Applicants did not assign another lawyer to either cover the Bethesda meetings or start the discovery process.

Should CASE acquiesce in the requested extension merely as a courtesy to opposing counsel? Such courtesies must be mutual. During

, the October 15 telephone conference counsel for CASE in Docket 2 requested an extension of approximately 10 days to respond to 36 pages of Applicants' detailed objections to CASE's September 4, 1985, Request for Production of Documents. Counsel for Applicants (Mr.

Horin) opposed the request. Despite that, CASE extended a courtesy to Applicants here to the extent they wanted to answer questions but Applicants rejected the offer claiming that they could not evaluate the wisdom of objecting until they had been fully briefed by CPSES personnel. Applicants should have acted on that theory in mid-4

November when discovery was sought and not on November 25th when CASE is deprived of the time allowed to respond and the Board is faced with a near fait accompli. Courtesy cannot and should not extend to a party who fails to demonstrate due diligence.

Will a denial of the requested extension further this proceeding 7 Yes, because it is important to send a clear signal that waiting until the last minute to seek an extension based upon events all of which were known at the time the discovery was filed is unacceptable and that Applicants are expected to be diligent in responding to discovery particularly given their past performance in Docket 2. The excuses offered here by Applicants for not meeting the deadline for filing have been rejected by prior hearing and appeal board rulings. See Commonwealth Edison Co. (Byron, Units 1 & 2) LBP-81-30-A, 14 NRC 364, 373 (1981) rejecting the other business of an attorney as an excuse for not timely responding to a motion to compel and Consolidated Edison Co. (Indian Point, Units 1, 2 & 3) ALAB-377, 5 NRC 430 (1977) directing that requests to extend schedule deadlines should be timely filed and not be filed late in the process.

CONCLUSION The day is short, and the work is great and the workmen are sluggish, and the reward is much, and the Master of the house is urgent.

Pirke Avot, 11:20 Delay is ever fatal to those who are prepared.

Lucan, The Civil War, Book I, line 281 5

Delay always breeds danger.

Cervantes, Don Quixote, Part I, Book IV, Chap. 2, page 240.

Respectfully submitted,

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/

/ M

, Anthony Z/ isnfa Billie Gfr e Trial Law ers for Public Justice 2000 P Street, N.W., Suite 611 Washington, D.C. 20036 b

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November 27, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

TEXAS UTILITIES GENERATING )

COMPANY, et al. ) Docket Nos. 50-445-2

) and 50-446-2 (Comanche Peak Steam Electric )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE By my signature below, I hereby certify that true and correct copies of CASE's Opposition to Applicants' Motion for Enlargement of Time for Answering Interrogatories (CASE's Set of

' 11/15/85) have been sent to the names listed below this 27th day of November, 1985, by: Express mail where indicated by *; Hand-delivery where indicated by **; and First Class Mail unless otherwise indicated.

Administrative Judge Peter B. Bloch**

U.S. Nuclear Regulatory Commission 4350 East-West Highway, 4th Floor Bethesda, Maryland 20814 Herbert Grossman**

Alternate Chairman ASLB Panel U.S. Nuclear Regulatory Commission 4350 East-West Highway, 4th Floor Bethesda, Maryland 20814 Dr. Kenneth A. McCollom, Dean Division of Engineering, Architecture and Technology Oklahoma State University Stillwater, Oklahoma 74074

a Dr. Walter H. Jordan 881 W. Outer Drive Oak Ridge, Tennessee 37830 Ms. Ellen Ginsberg, Esq.**

U.S. Nuclear Regulatory Commission 4350 East / West Highway, 4th Floor Bethesda, Maryland 20814 Robert A. Wooldridge, Esquire Worsham, Forsythe, Sar. 3 c ls .

& Wooldridge 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Nicholas Reynolds, Esquire **

Bishop, Liberman, Cook, Purcell & Reynolds 1200 17th Street, N.W.

Washington, D.C. 20036 Stuart Treby, Esquire **

Geary S. Mizuno, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission 7735 Old Georgetown Rd., 10th Floor j Bethesda, Maryland 20814 Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Renea Hicks, Esquire Assistant Attorney General Environmental Protection Division Supreme Court Building Austin, Texas 78711 Mrs. Juanita Ellis President, CASE 1426 S. Polk Dallas, Texas 75224 W. G. Counsil Executive Vice President Texas Utilities Generating Co.

Skyway Tower, 25th floor 400 North Olive Street Dallas, TX 75201

Roy P. Lessy, Jr.

Morgan, Lewis & Bockius

-1800 M Street, NW Washington, D.C. 20036 Thomas G. Dignan, Jr.

Ropes & Gray 225 Franklin Street Boston, MA 02110

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