ML20138N344
| ML20138N344 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/01/1985 |
| From: | Reynolds N BISHOP, COOK, PURCELL & REYNOLDS, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#485-061, CON-#485-61 OL, NUDOCS 8511050162 | |
| Download: ML20138N344 (8) | |
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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION /f BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
) Docket Nos. 50-445 and TEXAS UTILITIES ELECTRIC ) 50-446 COMPANY, ET AL. )
) (Application for (Comanche Peak Steam Electric ) Operating Licenses)
Station, Units 1 and 2) )
APPLICANTS' ANSWER TO BOARD QUESTION REGARDING WITHDRAWAL OF MOTIONS FOR
SUMMARY
DISPOSITION
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I. Introduction on October 16, 1985, the Licensing Board contacted the parties to request their positions on a question concerning Applicants' withdrawal of the motions.for summary disposition.
Specifically, the Board inquired, as follows:
Does the '>ritten filings' stipulation affect the right of the Applicants to withdraw the summary disposition motions?
The Board requested that the parties respond to this question by October 30, 1985. Applicants set forth their response below.
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- II. DISCUSSION
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A.. Background
- 1. The " stipulation"-
The " stipulation" to which the Board refers.is an oral iagreement among.the parties (later documented in a Board.
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Memorandum and Order) to a procedure for handling Applicants'- l summary. disposition motions. That procedure was envisioned to entail,. inter alia, possible Board inquiry (either through further written filings or "on the record") to clarify the parties' positions. The purpose of the procedure was to limit theEneed for hearings to issues as to which the Board felt it could'not reach'a'" reasoned decision," thereby avoiding " unduly.
l i , prolonged hearings of technical matters, . . . (See Memorandum and Order (Written-Filing Decisions, #1: Some AWS/ASMS Issues),
L ' June 29,.1984, at 2-3; see also conference Call of May 24, 1984, l Tr. 13,798-13,803.)
J 2. . Applicants' withdrawal of motions Applicants withdrew their motions for summary disposition in their'" Motion for Modification With Respect to the Board's
- Memorandum of August 29, 1985 (Proposal for Governance of this I
- Case)", dated September 25, 1985, at'10. The Board accepted ghat withdrawal, determining in the October 2, 1985, Memorandum and Order (Applicants' Motion for Modification), at 4, that it would-not act on those motions per se, although reiterating its previous request that Applicants submit corrections to those m_
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motions.1 However, upon consideration of CASE's September 25,
?1985, motion for reconsideration of the Board's August 29, 1985, Memorandum and order, the Board posed the above question. l
- 3. CASE motion for recansideration The aspect of CASE', September 25, 1985, motion for reconsideration that apparently gave rise to-the present inquiry is CASE's assertion-that it is " entitled to a ruling on the summary disposition motions (both Applicants' and CASE's) based on the conditions at the plant...at the time each Motion was
' filed"-(Motion at 14 (emphasis in original)). As a separate
. assertion, CASE argued that Applicants should not be allc; red to
" change their sworn affidavits...without prejudice" because the
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Board and parties had agreed those affidavits vere to be
" evidentiary affidavits." CASE seeks to preserve the affidavits for "use as-evidence in future Findings of Fact." (Motion at 15.)
Because Applicants' had not withdrawn their motions for summary disposition at the time CASE filed its motion (Applicants withdrew the motions in their motion of the same date), CASE's arguments do not go directly to the question posed by the Board.
Applicants rely on their prior answer to CASE's motion as setting forth their position with respect to the s'pecific arguments'
-1/
Those corrections were requested in the context of another Board decision. Applicants intend to submit those corrections.
s' s-c
raised by CASE. The discussion herein goes to the Board's particular question, as set out above.
B. Respcnse to Board Question
- 1. Effect of agreement on withdrawal of motions As noted previously, the agreement at issue is that memorialized in the June 29, 1984, gymorandum and Order (Written Filings). It was a procedural agreemeat, reflecting a desire on the part of all parties to resolve outstanding issues efficiently. The agreement did not substantively affect the status of the motions for summary disposition as motions or the 3 role of the Board in ruling on those motions. That agreement simply set out, 1j3 advance, a process comparable to that already contemplated by the rules governing disposition of summary disposition motions after consideration of the motions and ,
responsive pleadings.
In particular, the Rules of Practice contemplate that the Board may take such measures as are " appropriate" in considering motions for summary disposition if d ruling cannot be made on the pleadings, including a continuance to obtain additional affidavits. 10 C.F.R. S2.749(c). Further, the Federal Rules governing summary judgment (Fed.R.Civ.P. 56),2 are mirrored by the Rules of Practice generally with respect to tribunal
-2/
The Federal Rules are analogous to the Rules of Practice and may be looked to for guidance in construing 10 C.F.R. 52.749. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAD-443, 6'NRC 741, 756 n. 46 (1977).
4 3
involvement (compare Fed.R.Civ.P 56(f) with 10 C.F.R S2.749(c)).
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The Federal Rules also provide expressly for inquiry by the tribunal, including through a hearing on the motion, to determine what material' facts exist without substantial controversy and which are in good faith controverted (Fed.R.Civ.P. 56(d)), and-for supplementation of affidavits or further affidavits (Fed.R.Civ.P. 56(e)). These procedures correspond to those agreed to by the parties in this proceeding.
Clearly, the parties' agreement did not place Applicants' motions in some unique posture. Rather, that agreement simply foresaw prior to Board consideration of those motions a process tha'c is likely to have evolved over the course of such consideration, with or without the agreement. Indeed, Applicants did.not object to this process, proposed by the Board, in that it was consistent with the Rules of Practice and appeared to have a reasonable promise of facilitating the efficient resolution of outstanding issues. Applicants certainly never agreed, or had reason to suspect, that the process could serve to infringe on their rights with respect to the motions or the presentation of their case. There was certainly never any stipulation that Applicants would be precluded from withdrawing their. motions and/or from proceeding to a hearing to resolve the issues if the process did not work. (See Tr. 13,798-13,803, Attachment.)
In short, the subject agreement does not affect Applicants' rights with respect to their motions, including the right to withdraw a motion and proceed to trial on the issues involved.
1 Finally, the Board should recognize that CASE's position that the Board must proceed to decision on the motions is simply an
- attempt by CASE to have it both ways. CASE has argued throughout this proceeding, and most vociferously in responding to the motions for summary disposition, that Applicants must conduct a comprehensive review of the piping and support systems to address the cumulative effect of the outstanding issues in that area.
Applicants have commissioned Stone &. Webster to perform such analyses. Yet, CASE would have the Board proceed to a decision on material that Applicants have effectively acknowledged does not address all questions that must be resolved before licensing.3 The ongoing CPRT efforts cannot be ignored, and Applicants cannot be' denied the right to rely on those efforts to meet their burden.4 No casis exists to unnecessarily burden the Board and 3/ The outstanding questions to which we refer include more
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than the various matters raised by CASE with respect to pipe support designs at issue before the Board. There are questions which were raised by Cygna, TRT and CPRT, questions that relate both to matters before the Board and matters to be resolved before the Staff, that in Applicants' view are best resolved by the comprehensive CPRT program. 'In short, superseding events rendered resolution of the issues addressed in the motions, in isolation, inefficient and impractical. (see " Applicants' Current Management Views and Management Plan for Resolution of All Issues," June 28, 1985, at 59-60.) It-is for this reason Applicants withdrew their motions.
4/ See Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-770, 19 NRC 1163, 1169-70 (1984)
(holding that applicants could use evidence of various '
remedial programs to meet their burden of proof on specific quality assurance issues); see also Pacific Gas &
Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-763, 19 NRC 571, 576 (1984) (holding that verification effotts may " substitute for, and supplenent" the QA progra- in order to provide the Board with reasonable assurance that the plant can operate sr.fely).
r parties with resolving withdrawn motions that, even if disposed of, would not negate the need for a decision on the comprehensive program Applicants have undertaken.5
- 2. Effect of Agreement on Affidavits Supporting Motions for Summary Disposition Apart from the status of the motions per se is the question of the status of the affidavits supporting those motions. It is not apparent what particu'.ar use CASE might envision for those affidavits. CASE only states that it would have the Board rule that Applicants' metions were available for "use as evidence in future Findings of Fact." It would be premature for Applicants, or the Board, to speculate as to the specific uses CASE may wish to make of the affidavits. However, to be clear, Applicants recognize that~ withdrawing the motions does not preclude CASE from seeking to use the accompanying affidavits for purposes that are consistent with the Rules of Practice, including the rules Indeed, governing receipt of evidence into the record.
Applicants have already acknowledged that one such use may be for impeachment purposes (see Applicants' October 15, 1985, " Answer to CASE's Mction for Recor. sideration," at 9) .
5/ In that the staff filed an answer to only one of Applicants' motions, and the Board previously expressed its desire to have the staff's positions before ruling (Tr. 13,977 (August 22, 1984 conference call)), ruling on those motions in their present posture would not even be consistent with the procedure the Board envisioned for disposing of the motions.
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III. CONCLUSION For the foregoing reasons, Applicants respond in the negative to the Board's question as to whether the written filings agreement affects the right of Applicants' to withdraw their i
motions for summary disposition.
Respect 1- submitted, Nichola S.:heynolds William .
Ho}rin BISHOP, IBE MAN, CCOK, PURCE EYNOLDS 1200 Sevent enth Street, N.W.
Washington, D.C. 20036 (202) 857-9817)
Robert A. Wooldridge WORSHAM, FORSYTHE, SAMPELS
& WOOLDRIDGE 2001 Bryan Tower, suite 3200 Dallas, Texas 75201 (214) 979-3000 Thomas G. Dignan, Jr.
R. K. Gad III ROPES & GRAY 225 Franklin Street Boston, MA 02110 (617) 423-6100 Roy P. Lessy, Jr.
MORGAN, LEWIS & BOCKIUS 1800 M Street, N.W.
Washington, D.C. 20036 (202) 331-2706 counsel for Applicants Novewber 1, 1985
f 13,795 g I UNITED. STATES OF AMERICA ,
NUCLEAR RECULATORY COMMISSION 2
-l BEFORE THE ATOMIC SAFF.TY & LICENSING BOARD \
3 4 -__.. ------- -- -X 5 In the matter of: :
6 TEXAS UTILITIES GENERATING : Docket Nos. 50-445-
. COMPANY, et al. : 50'_446 7 :
(Comar.che Peak Steam Electric -:
8 Station, Units 1 and 2) :
9 ----_--.__________x 10 4th~ Floor 4350 East West Highway 11 Bethesday, Maryland i
12 Thursday, May 24, 1984 13 Hearing in the above-entitled matter convened at
.[
s.. 14 3:10 p.m.
15 BEFORE:
16 -
JUDGE PETER .BLOCH , ESQ.
17 Ch' airman', Atomic Safeq' and Licensing Board U.S. Nuclear Regulat.ory Commission 18 Washington, D. C.
JUDGE WALTER JORDAN g 19 Member, Atomic Safety and Licensing Board ,
' 20 U.S. Nuclear Regulatory Commission .
l Washington, D. C. l 21 l
22 23 24
(', 25 FREE STATE REPORTING INC.
Court Repoetir.g e Depositions D.C. Area 161-19C2. e Bolt. & Annap. 169 6136 e
- t. .
13,798
- - I cr@ th9 written motions to summary disposition filed by 2 the applicants and whether or not the parties agree that 3 these are addressing matters that should be able to be 4 filed in writing.
2 5- .We can. discuss in detail as we go on what that 6 .would mean. Also of importance is applicants' motion.
.7 for these. option of special procedures filed on May 8th,
- 8. 1984, which have been responded to -in part by _ cases
-9 notion for enlargement of time filed on May 21, 1984.
10 There are a variety of scheduling matters that 11 the Board would like to clarify, including the staff 12 schedule to the extent that's possible, and the applie 13 cants'. schedule for filing the remaining items related e.
14 to.its plan.
15 I think with that brief introduction, the 16 order of those things doesn't seem to me to be that li 17 important, but I think 'it probably would be helpful 18 if the staff could clarify, if it would, when it .f eels it is going-to be able to respond to the various pending
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19 20 matters.
21 Mr . TREBY.: By pending matters, are you 22- talking about the motions for summary disposition or 23 something beyond that?
24 JUcGE DLCC:-:: That's a good start.
F.2. TFEGY: h*ith regard to the mottons for
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. FREE STATE REPORTING INC.
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l D.C. Area 1611901 e Balt. & Annap. 169 6136
9 13,799
- 1 summary disposition, it in our bslief that in tha firat 2 instance at least a response in pleading -- would be
-- 3 appropriate. We believe that --
4 JUDGE BLOCH: I'm asking about a schedule.
5 Can you do it within the time schedule provided in the 6 rules?
MR. TREBY: No, I don't believe so. We have 7
reviewed those motions. We've had our technical people
.8 9 review them and we believe that we have a number of to matters for clarification that we'd like to ask the is applicants about.
12 I would like to point out that when the appli-13 cants filed their plan initially on February 3rd, they p- .
(. ' 14 indicated as part of that plan that they proposed to 15 meet with Messrs. Walsh and Dole during the latter is stages of implementation of the plan to discuss the 17 results of those efforts.
18 And then in later pleading their discussions 19 amongst the parties and with the Board, that would in-clude the staff. We have not had any of those meetings.
20 21 In reviewing the various documents, we find that we have 22 a number of questions with regard to some of the data 23 and some of the methodology.
We think that if we could have a meeting in 24 25 the very near future -- we would prefer either.the end
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FREE STATE REPORTING INC.
Court Reporting e Depositions D.C. Area 161-1901 e Bolt. & Annap. 169-6136 R___
13,800
- 1 of naxt weck or tho beginning of the following week -4 2' that we would probably be able to answer these motions C 3 for summary disposition shortly thereaf ter, perhaps 4 within the time allotted by the regulations which would be June 11th on most of the ones we've received.
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5 6 But I suspect that we might need a short period 7 of time to go after it. It all really depends on the 8 information that we would gather at these meetings.
9 JUDGE BLOCH: Since the meetings would be to designed to try to narrow issues and focus the motion 11 to some extent --
12 MR. TREBY : These would be technical meetings 13 and exchange of technical information between the people r s which would be designed to do that, you know, to the
( 14 15 extent that the technical people could agree on what is has been proposed and said -- things and we all agree, 17 that wouldm of ecourse, ~ narrow that matter and we'd be is able to dispose of it.
!' ig JUDGE BLOCH: I appreciate that and the Bom.-d 20 will be pleased either to have you do that alone or with our participation, as you know. What I was going 21 22 to ask you is whether in light of that process, you 23 think that it 'would be f ruitful to look forward to a 24 situation where the Board would attempt to resolve these matters based on the written filing, supplemented, if
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13,801 1
n c:222nry, by furthar writtcn filingn rzquented by tha 2 Board or by oral argument or, if the Board considers it 3 necessary to resolve the issues fairly, by croxx examina-4 tion of specified witnesses.
5 Would yea prefer' adopting a procedure at this 6 point which favored the determination on written papers 7 in the discretion of the Board?
8 MR. TREBY : Yes, we would favor that -- that 9 approach after we have this meeting and filed our 10 written paper.
11 JUDGE BLOCH: I understand. You're not waiving 12 any rights to take the time necessary to m.ke a clear and 13 carefu. technically correct response. I hope that's what 7
\__ 14 we'll get because that's the only way the Board's going 15 to be able to make a cicar decision on summary disposition 16 anyway.
17 Mr. Reynolds, would you like to comment on 18 the schedule of staff as suggested and on the Board's 19 comments on a principal commitment to determinations on 20 written filings?
21 MR. REYNOLDS: Once you have Mr. Treby to 22 clarify whether the staff indeed was suggesting that 23 these matters could go off on the pleadings and you re-24 ceivod an answer in the af firmative , that satisfied my 4 25 concerns that the staff hadn't made up its mind one way FREE STATE REPORTING INC.
Court Reporting e D e po sitions D.C. Area 161-1902 e Balt. & Annop. 169 6136 1
13,802 1 or the other on that quastion. I thin)$ that a meeting 2 in the next week is. appropriate.
3 I would suggest that it be next week and not 4 the following week because that would impair any hearing 5 schedule that the Board might rule on today. So yes, we 6 would agree that a meeting with the staf f next week some-7 time is appropriate to respond to staff questions.
8 JUDGE BLOCH: Now, when you said with the staff, 9 the staff suggestion was with sttff and CASE. Is that 10 okay?
11 MR. REYNOLDS: I didn't mind -- I didn't mean 12 to exclude CASE.
J UDGE BLOCH : Mrs. Ellis , would you like to 13
(' ' <.
(. . 14 comment?
MRS. ELLIS: I think that that's a -- pretty 15 16 much our feeling. I think it would be worth the ef fort 17 to try to resolve the things on paper, if possible, and is at the very le m I think it would be worth our while is because we could narrow the issues considerably, and at 20 best, we might be able to resolve all of them on paper 21 to the Board's sati.sfaction.
I think that's certainly a good way to approach 22 23 it. I don't know at this poing without checking with 24 Mr. Walsh or Doyle, what their schedules wou d be like as far as a meeting. That seems like a rear.onable way
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- 13,803
- 1 to proccad if wa could, you know, work out come -- with 2 them to be available.
3 JUDGE BLOCH: It would be best if they could 4 be available in person, but if not, I would hope things 5 could be done so that they,can have a meaningful con-6 ference,by telephone.
7 MRS. ELLIS: Right, uh-huh.
8 JUDGE BLOCH: I think it is important that we 9 try to proceed expeditiously and try to get it going to next week. You understand that what we were requesting is tha*. the parties agree in advance thaIt the Board would 12 attempt to reach decisions based ta the written filings 13 and that we would only have additional -- we would only
,i- .
i ,_,, 14 have a heari.ng or cross examination if the Board deter-15 mined that that was necessary to make a recent decision.
16 Is that an acceptable standard to you, Mrs. Ellis?
MRS, ELLIS: Yes, I think so.
17 l 18 JUDGE BLOCH: It's my understanding that all tg of the parties are agreeable to that basic method of 20 going fo rward . We, therefore, don't know at this time 2,
that any of the issues that are now pending before us 22 will need to go to hearing, and therefore have nothing 23 at this point to schedule for hearing.
2 .
We're hopeful that the parties will meet, 25 narrow things and will give us the record to decide s
FREE STATE REPORTING INC.
Court Reporting e Depositions .
D.C. 'A rea 161-1901 e Balt. & Annap. 169 5136
t
.2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION <
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
) Docket Nos. 50-445 and TEXAS UTILITIES ELECTRIC ) 50-446
) (Application for (Comanche Peak Steam Electric ) Operating Licenses)
Station, Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Answer to Board Question Regarding Withdrawal of Motions for Summary Disposition" in the above-captioned matter were served _upon the following persons by express mail (*), or deposit in the United States mail, postage prepaid, on this 1st day of November, 1985 or will be served by hand delivery (**) on the 4th day of November 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 Mr. William L. Clements 881 West Outer Drive Docketing and Service Odk Ridge, Tennessee 37830 Branch U.S. Nuclear Regulatory
- Dr. Kenneth-A. McCollom Commission Dean, Division of Washington, D.C. 20555 Engineering, Architecture and Technology **Stuart A. Treby, Esquire Oklahoma State University Office of the Executive Stillwater, Oklahoma 74074 Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555
a.
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 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
- Mrs. Juanita Ellis Lanny A. Sinkin President,~ CASE 3022 Porter Street 1426 South Polk Street Suite 304 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 ft t akas William A. Horin~
i cc: John W. Beck Robert A. Wooldridge, Esq.
+
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