ML20137W942

Motion for Reconsideration of 851125 Memorandum & Order (Reconsideration of Misrepresentation Memorandum) Which Reopens Discovery Under Original Misleading Statement Memorandum.Certificate of Svc Encl

ML20137W942
Person / Time
Site:	Comanche Peak
Issue date:	12/06/1985
From:	Reynolds N BISHOP, COOK, PURCELL & REYNOLDS, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20137W925	List: ML20137W920 ML20137W942
References
OL, OL-2, NUDOCS 8512100382
Download: ML20137W942 (11)

Text

-

i l

December 6, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

- BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Docket Nos. 50-445, In the Matter of )

50-446,

)

50-445-2 and TEXAS UTILITIES ELECTRIC )

COMPANY, ET AL. ) 50-446-2

)

) (Application for (Comanche Peak Steam Electric ) Operating Licenses)

Station, Units 1 and 2)

APPLICANTS' MOTION FOR RECONSIDERATION OF MEMORANDUM AND ORDER (RECONSIDERATION OF MISREPRESENTATION MEMORANDUM), NOVEMBER 25, 1985 I. INTRODUCTION Pursuant to 10 C.F.R. S 2.730, Texas Utilities Electric Company, et al. (" Applicants"), hereby move for reconsideration

of the Licensing Board's Memorandum and Order (Reconsideration of l

s Misrepresentation Memorandum), issued November 25, 1985.

l Applicants seek reconsideration only of a single aspect of the Memorandum and Order, as to which it appears the Board overlooked prior Board rulings governing the conduct of discovery pursuant to the original misleading statement memorandum. That aspect concerns the reopening of discovery under the original misleading statement memorandum. Applicants intend to comply with the l

remainder of the Board's directives in the Memorandum and Order.

l Applicants also accede to limited additional discovery on the recent-filings submitted in response to the Board's inquiries.

8512100382 851206 l

! PDR ADOCK 05000445 PDR

,' O 4

[

L However, for the reasons set forth below we believe reconsideration of a single aspect of the Memorandum and Order is appropriate.

II. BACKGROUND On December 18, 1984, the Licensing Board issued Memorandum and Order (Reopening Discovery; Misleading Statement), LBP-84-56,

(" misleading statement memorandum"). Therein, the 20 NRC 1696 Board concluded that certain statements made by Applicants in this proceeding were " misleading" and that discovery against Applicants should be reopened "on questions relating to samples, tests or the credibility of testimony or representations of Texas Utilities Electric Co., et al. in this proceeding." The Board authorized CASE to conduct such discovery until February 21, 1985. (20 NRC at 1702.)

Applicants filed a motion for reconsideration of the misleading statement memorandum on January 7, 1985. Therein, Applicants acceded to further discovery to the extent it concerned tests and samples performed in connection with the motions for summary disposition regarding pipe support design allegations. However, Applicants sought reconsideration of the Board's decision to permit unlimited discovery on the

" representations of [ Applicants] in this proceeding." In a statement issued on January 9, 1985, the Board chairman, after noting that "there's no indication that the Applicants have done anything intentionally wrong" and that the question is "a matter

M of lack of communication," requested information regarding the configurations of U-bolt supports, and stayed the obligation to respond to Applicants' motion for reconsideration pending receipt of the requested information. The Board Chairman did not stay In fact, the any aspect of the memorandum,,concerning discovery.

Board Chairman specifically declined to stay discovery when he stated in response to a question by Mr. Treby, as follows:

MR. TREBY: Does your statement have any impact on the timing that was set out in your order, which I believe set February 28th (sic] as the ending date of discovery?

J_UDGE BLOCH: No. Because there's no stay related to this motion for reconsideration. The obligation to respond and the opportunity to file discovery is in effect until we should rule on the motion.

(January 9, 1985, Statement by Chairman Bloch at 4-5 (emphasis added).]

Following receipt of CASE's first set of interrogatories "res credibility", dated January 17, 1985, Applicants moved for a protective order to suspend the obligation to respond to those requests until the Board ruled on Applicants' motion for reconsideration.1 Applicants similarly~ moved for a protective order with respect to CASE's second set of " credibility" interrogatories, served February 4, 1985.2 On February 15, 1985,

-1/ " Applicants' Motion for Protective Order Regarding CASES's First Set of Interrogatories to Applicants and Requests to Produce Re: Credibility," dated January 23, 1985.

2/ " Applicants' Motion for Protective Order Regarding CASE's Second Set of Interrogatories to Applicants and Requests to Produce Ret Credibility," dated February 14, 1985.

~

, (

in the Board granted Applicants' motion for a protective order, part, ruling that Applicants:

. . .may refuse to respond to CASE requests for discovery except to tha extent that the requests relate to the validity or reliability of tests and samples. CASE may submit additional discovery requests on the permitted questions by February 28, 1985. CASE may reactivate its remaining requests one month after the Staff's last SSER related to the activities of the Comanche Peak Task Force.

[ Memorandum (Motion for Protective Order),

February 15, 1985.)3 In sum, the Board stayed only Applicants' obligation to respond to certain discovery requests, not CASE's right to file discovery consistent with, and obligation to do so in the time permitted by, the misleading statement memorandum.4 CASE filed three additional sets of interrogatories "rer credibility" prior to the cut-off of discovery.5 In the instant Memorandum and Order, the Board denied Applicants' motion for reconsideration and directed that Applicants respond to " outstanding interrogatories related to their first Plan and its filings under that Plan." Applicants will do so. However, the Board also directed that the discovery period under the original misleading statement memorandum "shall 3/ The "last SSER" referred to by the Board, SSER 11, was

~

issued in May 1985.

4/ The Board later revised the scope of requests as to which Applicants were to respond prior to a Board ruling on the motion for reconsideration. These revisions are not relevant to the issues presented here.

5/ The cut-off date for submitting requests was further Applicants extended, to March 4, 1985, at CASE's request.

did not oppose the request.

O 3

^$

run for 50 days from the issuance of this Memorandum." ,

(Memorandum and Order at 11.) Applicants submit that further discovery under the misleading statement memorandum is inconsistent with the Board's prior decisions. Accordingly, Applicant 5 move that the Board reconsider permitting further discovery pursuant to the misleading statement memorandum.6 III. APPLICANTS' MOTION FOR RECONSIDERATION A. The Memorandum and Order is Inconsistent With Prior Board Orders and Should be Revised The Board's directive in the Memorandum and Order chat discovery under the misleading statement memorandum "shall run for 50 days from the issuance of this Memorandum" is inconsistent with prior Board orders as to which no reconsideration had been requested. The Board previously ruled that CASE should file discovery requests pursuant to and in the time period allowed under that memorandum irrespective of whatever stays may be granted with respect to other actions by J

the parties related to the memorandum. In fact, the Board twice stayed various obligations of the parties related to that memorandum while expressly stating that the time period within which CASE should file its requests was not stayed.

In the first instance, the Board Chairman stayed the parties' obligations to respond to Applicants' motion for 6/ Applicants do accede to discovery relating to their two recent filings which responded to the Board's inquiries, to the extent they contain new information. Those filings were served on November 12, 1985.

e reconsideration pending receipt of additional information, adding that "the opportunity to file discovery is in effect until we should rule on'the motion." (See Statement of Chairman Peter Bloch, at 4-5, quoted supra.) The Board subsequently issued a protective order whi,ch provided that Applicants need 4

only respond to requests s concerning tests and samples pending a ruling on Applicants' motion for reconsideration. The Board ruled at that time that " CASE may submit additional discovery (See requests on the permitted questions by February 28, 1985."

Memorandum (Motion for Protective Order), supra at 2.) The .

discovery period was later extended further, to March 4 (see n.

5, supra). In short, the Board not only twice reiterated CASE's obligation to file discovery within a specified period, but twice extended that period from that originally established in the misleading statement memorandum.

Thus, CASE has already had a full opportunity to pose .

discdvery requests pursuant to the misleading statement memorandum. It appears to Applicants that the Board may simply have overlooked its prior rulings. In any event, Applicants move that the Board reconsider its instant decision.

B. Further Discovery Is Unwarranted and Would Impose an Unfair Burden on Applicants In addition to the inconsistency between the Board's prior directivos and the Memorandum and Order, affording additional unlimited discovery by CASE is unwarranted and would impose an unfair burden on Applicants. CASE was previously permitted to

e submit discovery requests pursuant to the misleading statement memorandum over a 76 day period (December 19, 1984 to March 4, 1985). In fact, CASE submitted five sets of discovery requests, Thus, posing over 640 questions (including distinct subparts).

CASE has already been afforded, and taken advantage of, the In opportunity to submit requests pursuant to that memorandum.

addition, Applicants have already responded to many of CASE's requests, consistent with this Board's orders, in seven sets of To answers, 8 producing over a thousand pages of documents.

afford CASE yet another chance to take discovery pursuant to the misleading statement memorandum is unwarranted. Indeed, even prior to issuance of that memorandum CASE had ample opportunity to conduct discovery on all issues in this proceeding. Yet another round of discovery would only serve to burden Applicants unfairly.

e 7/ CASE filed its five sets of " credibility" requests on January 17, February 4, 25 (2 sets) and March 4, 1985. ,

8/ Applicants submitted responses on March 13, April 25, June 7 and 28, and July 1, 3 and 5, 1985.

r-t

. IV. CONCLUSION For the foregoing ' reasons, Applicants move the Board to l

reconsider that aspect of its Memorandum and Order which reopens discovery pursuant to the misleading statement memorandum. The Board should not reopen that discovery.

Respectfbil submitted, l

s NicholaA S. K%ynolds

!' William . Wrin

[ COOK,

, BISHOP,.L PURCEL BE,R K ,LDS

& M YNO l

' 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 857-9837 Robert A. Wooldridge WORSHAM, FORSYinE, SAMPELS

& WOOLDRIDGF 2001 Bryan Tower, suite 3200 Dallas, Texas 75201 (214) 979-3000

^ Roy P. Lessy, Jr.

MORGAN, LEWIS & BOCKIUS 1800 M Street, N.W.

Washington, D.C. 20036 (202) 872-5000 Thomas G. Dignan, Jr/

R.K. Gad III ROPES & GRAY 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 Counsel for Applicants l

December 6, 1985 i

I L

(

6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Docket Nos. 50-445-1, In the Matter of )

50-446-1,

)

TEXAS UTILITIES ELECTRIC ) 50-445-2 and COMPANY, ET AL. ) 50-446-2

)

(Comanche Peak Steam Electric ) (Application for ,

Station, Units 1 and 2) ) Operating Licenses)

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Motion for Reconsideration of Memorandum and Order (Reconsideration of Misrepresentation Memorandum), November 25, 1985" and

" Applicants' Motion for Leave to rile Motion for Reconsideraton" in the above-captioned matter were served upon the following persons by express mail (*) or deposit in the United States mail, first class, postage prepaid on the 6th day of December, or hand delivery (**) on the 9th day of December, 1985.

• • Peter B. Bloch, Esquire Chairman, Atomic Safety Chairman, Atomic Safety and and Licensing Appeal Licensing Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

• Dr. Walter H. Jordan William L. Clements 881 West Outer Drive Docketing and Service Oak Ridge, Tennessee 37830 Branch U.S. Nuclear Regulatory

• Dr. Kenneth A. McCollom Commissicn Dean, Division of Washington, D.C. 20555 Engineering, Architecture **Stuart A. Treby, Esquire and Technology Oklahoma State University Office of the Executive Stillwater, Oklahoma 74074 Director U.S. Nuclear Regulatory ,

Commission Washington, D.C. 20555

+

. i Chairman, Atomic Safety

• Elizabeth B. Johnson

- and Licensing Board Oak Ridge National Panel Laboratory

.U.S. Nuclear Regulatory Post Office Box X Commission Building 3500

_ Washington, D.C. 20555 Oak Ridge, Tennessee 37830 i Robert D. Martin

" Renea Hicks, Esquire Regional Administrator, Assistant Attorney General Region IV '

Environmental Protection U.S. Nuclear Regulatory Division Commission P.O. Box 12548 611 Ryan Plaza Drive Capitol Station Suite 1000 Austin, Texas 78711 Arlington, Texas 76011 4

• .Mrs. Juanita Ellis Lanny A. Sinkin President, CASE 3022 Porter Street 1426~ South Polk Street Suite 304 i Dallas, Texas 75224 Washington, D.C. *20008 Nancy Williams **Ms. Billie P. Garde Cygna Energy Services, Inc. Citizens Clinic Director 101 California Street Government Accountability Suite 1000 Project San Francisco, CA 94111 1555 Connecticut Avenue, N.W.

' Suite 202 Washington, D.C. 20036

• • Herbert Grossman, Esquire ** Ellen Ginsberg, " squire Alternative Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board [

Board U.S. Nuclear Regulatory t U.S. Nuclear Regulatory Commission Washington, D.C. 20555 commission Washington, D.C. 20555

l  !

l y.

l

• • Anthony Z. Roisman, Esquira Mr. James E. Cummins Trial Lawyers for Public Resident Inspector /

Justice Comanche Peak Steam Electric  ;

Suite 611 Station l

i 2000 P Street, N.W. c/o U.S. Nuclear Regulatory Washington, D.C. 20036 Commission -

P.O. Box 38 t

I Glen Rose, Texas .76043 l Joseph Gallo, Esquire l Isham, Lincoln & Beale Suite 840 1120 connecticut Avenue, N.W.

Washington, D.C. 20036 i

{} av William A. Horin #

cc: John W. Beck Robert A. Wooldridge, Esq.

t t