'

f -

UNITED STATES OF AMERICA 07;WETEDNUCLEAR REGULATORY COMMISSION USHRC

! \ATOMIC SAFETY AND LICENSING APPEAL BOARD '

~86 Da16 P2 53

CFFE'C ~ "

) ) 0C;' *

',.x, .,

In the Matter of: ) Docket Nos. 50-275-OLA1 ,.

) and 50-323-OLA >-

PACIFIC GAS AND ELECTRIC COMPANY ))

(Diablo Canyon Nuclear Power ).,

Plant, Units 1 and 2) ))

>

MOTION TO ALLOW FILING OF SUMMARY DISPOSITION MOTIONAND FOR REINSTATEMENT OF ORIGINAL SCHEDULE

' I. INTRODUCTION,

Y4 , y

This motion is filed on behalf of Mothers for Peace and the

Sierra Club, and seeks leave to file a motion for summary

disposition as provided under section 2.749 of the NRC rules, 10

C.F.R. S 2.749. It also -~ seeks reinstatement of the schedule

originally directed by the Chairman of the Atomic Safety and

Licensing Board Para 1.

NRC rules specifically provide that any party may file a

motion for summary disposition, which "shall" be filed according

to the schedule as "may be fixed by the presiding officer." 10

C.F.R. 5 2.749(a). In this case, Mothers For Peace and the Sierra

Club have been denied an opportunity to file a motion for summary

disposition, based on a decision by the Honorable B. Paul Cotter,

made, without notice, during a telephonic conference held on a

different matter. In deleting the previously-set provisions for

filing motions for summary disposition, originally due on

1

8612180165 861215PDR ADOCK 05000275G PDR

_

>

, .

For Peace and the Sierra Club had not adequately answered.c.p interrogatories posed by NRC staff.

Counsel for Mothers For Peace and the Sierra Club contended;

that the NRC Staff motion was untimely, because section 2.740(f)

requires that motions to compel discovery must be filed within

ten days of filing the allegedly inadequate responses. Chairman

Cotter rejected this argument, ruling in his memorandum and

order, dated December 1 and docketed on December 2, that he could

nevertheless consider the NRC staff request to compel discovery

as an aspect of " prudent case. management" and the " Board's

obligation to insure that the proceeding is conducted in an

orderly and expeditious manner."

In the memorandum and order, attached hereto as Exhibit B,

Chairman Cotter stated that the Board had examined the record inthe case, including the discovery, and had reached several

conclusions. Some of the conclusions concerned setting dates for

parties to file and exchange information concerning their direct

case. Prefiled testimony, originally required to be filed on

March 11, 1987, now must be filed by January 26, 1987. The

hearing, originally scheduled for March 26, 1987, is now set for

February 2, 1987. Additionally, the Memorandum and Order stated,

". the record makes clear that the essence of the. .

matters at issue here is factual and that, consequent-ly, the likelihood of success of any motions forsummary disposition is de minimis. The time, effort,and resources required to file motions for summarydisposition, weighed against the likely success of suchmotions, leads the Board to conclude they are notwarranted." (Memorandum and Order, p. 4.)

Although the order did not explicitly prohibit filing a motion

3

._. __ _ .- -

-

. .

for summary disposition, as was indicated in the telephonic

conference, the previously scheduled time for filing summary

disposition motions was deleted and the schedule was accelerated

as outlined above.

Hence, Mothers for Peace and the Sierra Club file this

motion to the appeals panel.

III. THE PARTIES HAVE A RIGHT UNDER THE REGULATIONS TO FILE AMOTION FOR SUMMARY DISPOSITION.

Section 2.749 of the NRC's regulations states, in pertinent

part:

"(a) Any party to a proceeding may move, with orwithout supporting affidavits, for a decision by thepresiding officer in that party's favor as to all orany part of the matters involved in the proceeding ...

Motions shall be filed within such time as may be fixedby the presiding officer." 10 C.F.R. S 2.749.

The regulation clearly provides that any party may file a motion

for summary disposition; there is no requirement that a party

seek leave to file. All that is required is that the party file

within such time as set by the presiding officer. Originally,

Mothers for Peace and the Sierra Club were prepared to file by

the presiding officer's December 29 deadline. In order to

expedite this motion, Mothers for Peace and the Sierra Club are

filing the motion two weeks in advance, concurrent with this

motion.

Mothers for Peace and the Sierra Club are aware of no

authority which grants the presiding member the power to refuse

to consider motions for summary disposition or otherwise provide

that there is no date for which they may be filed.

4

_ _ _

. - . - - . . . .- . -. . _ - =. - _ _ _

.

. .

E

December 29, Chairman Cotter also accelerated the hearing

schedule from an originally contemplated March 26 commencement

date to February 2, 1987. As described below, this schedule

change will seriously compromise the ability of Mothers for Peace,

,

and the Sierra Club to participate effectively in this case.

This motion is directed to the Appeals Board, notwithstand-

ing Mothers For Peace and the Sierra Club's recognition that the

rules do not explicitly provide for this type of interlocutory

appeal, and may.in fact prevent it. Nevertheless, Mothers For

Peace and the Sierra Club urge that the Appeals Board consider4

and grant this motion in the exercise of the Appeal Board's

inherent jurisdiction to ensure that the right to file a motion

for summary disposition, clearly provided in the regulations,

remains more than hollow language, and to ensure a continuing;

sense of fair play for all parties.

II. PROCEDURAL BACKGROUND

Hearings were originally scheduled in this case to commence,

j on March 26, 1987, per an order dated August 28, 1986, and

docketed on August 29. (Exhibit A.) That order also contem-

plated the filing of Motions for Summary Disposition on December

29. Mothers For Peace and the Sierra Club had contemplated

filing such a motion, and had commenced work on the motion prior

to the November 25 telephonic conference and December 1 Order,

which denied them this opportunity.

Chairman Cotter presided at the conference, which was held

at the request of NRC Staff concerning its belief that Mothers

2i

, _ . ___ - . _ . , - . _ _ _ _ _ _ _ _ _ _ _ _ _ - , _ . , _ . _ . . . . . . _ , _ . . _ _ _ _ , . . _ _ _ ,

. .

Requiring consideration of this motion will work no preju-

dice to any of the parties. All that Mothers for Peace and the

Sierra Club are asking is that the ordinary procedures guaranteed

to all parties be followed. For the same reasons, consideration

of the motion will not unduly delay the proceedings beyond that

contemplated in the ordinary course of hearings. Indeed, should

the motion be granted in whole or in part, it may substantially

shorten the time and expense of holding evidentiary hearings.

Mothers for Peace and the Sierra Club believe that the

subject matter of the attached motion for summary disposition is

proper. The motion concerns two legal issues for which no

additional evidence need be taken: (1) the NRC's failure to

prepare an Environmental Impact Statement; and (2) the failure of

the reracking plan, on its face, to comply with the NRC's

Standard Review Plan, NUREG-0800, despite the fact that the NRC's

safety evaluation was conducted under the Standard Review Plan.

Accordingly, Mothers for Peace and the Sierra Club request

that the Appeals Board direct either that the presiding officer;

consider the attached motion, or that the Appeal Board consideri

the motion itself.

IV. MOTHERS FOR PEACE AND THE SIERRA CLUB REQUEST THAT THESCHEDULE ORIGINALLY SET, WITH HEARINGS COMMENCING ON MARCH26, 1987, BE REINSTATED

The schedule originally set in this matter contemplated the

filing of summary disposition motions and answers thereto. It

necessarily included consideration of the time required to

analyze, formulate, and prepare such motions. Mothers for Peace

5

. .

and the Sierra Club have concentrated much of their analysis on

those issues which might be resolved by a motion for summary

disposition. Moving up the time to prepare testimony from March

11 to January 26 will severely prejudice their ability to file

their prepared testimony, and may in fact prevent their ability

to do so.

This Commission is aware that both Mothers for Peace and the

Sierra Club are citizens groups. They are limited by lack of

funds. They do not, as do other parties, have a comparatively

unlimited access to experts. Most of the work on this case on

behalf of Mothers for Peace and the Sierra Club has been done by

Dr. Richard Ferguson on his own time. Although the time he has

devoted has been substantial, he has had to budget his time in

light of the schedule which had been promulgated. With the new

revision in the schedule, it is unlikely that he will be able to

complete his testimony as he had hoped, and it is certain that it

will not be prepared in as complete a fashion as he had hoped.

Accordingly, Mothers for Peace and the Sierra Club request that

the time originally set for filing prefiled testimony, March 11,

1987, and for the beginning of the hearing, March 26, 1987, be

reinstated.

Dated: December 15, 1986 Respectfully submitted

GRUENEICH & LOWRY

. I

By: W XEdwin F. Lowry

6

.-- -_ . . - . . _ - _

. .

UNITED STATES OF AMERICA f[ht [NUCLEAR REGULATORY COMMISSION

ATOMIC SAFETY AND LICENSING BOARD E AlXi 29 P3 '47

Before Administrative Judges: ggu ,, , , ,

00CMI 1:td 4 iri.:t:iB. Paul Cotter, Jr. , Chairman BRANCu

Glenn 0. BrightDr. Jerry Harbour

?JJ.',-ED AUG 2 9 L986

)In the Matter of: ) Docket Nos. 50-275-OLA

) and 50-323-0LAPACIFIC GAS AND ELECTRIC COMPANY )

(Diablo Canyon Nuclear Power Plant,Units 1 and 2) ) August 28, 1986

)

MEMORANDUM AND ORDER

On August 22, 1986, pursuant to 10 C.F.R. 9 2.718 (1986), the Board

held a telephone conference to discuss scheduling the steps necessary to*

reach hearing in this proceeding. Participating in the. conference

were: Bruce Norton and Philip A. Crane, Jr. for the Applicant, Pacific

Gas and Electric Company (PG&E); Nancy Culver for the Mothers for Peace;

Richard B. Ferguson for the Sierra Club; Dian M. Grueneich for both the

Mothers for Peace and the Sierra Club; Laurie McDermott for Consumers

Organized for Defense of Environmental Safety (CODES); and Lawrence J.

*Judges Cotter and Bright constituted a quorum of the Board in the

absence of Judge Harbour who was in hearing in another proceeding. 10C.F.R. 5 2.721(d)(1986).

jf$EXHIBIT /) -

- ..-

. .

-2-

Chandler and Henry J. McGurren for the Nuclear Regulato ,. Commission

Staff.

Petitioners Mothers for Peace, CODES, and the Sierra Club were

admitted as parties to the proceeding by memorandum and order dated

June 27, 1986. It appears that no discovery has been initiated since

then with one exception.

That exception is the information exchanged, pursuant to the

Board's direction, between PG&E and the Sierra Club in connection with

the latter's Contention (I)(A). By a report served August 15, 1986, Dr.

Ferguson stated on behalf of the Sierra Club that he considered

Contentions (I)(A)(1), (2), (5), and (6) resolved as a result of the

information he had obtained. See Tr. 227. The Board noted in its June

27, 1986 Memorandum and Order at page 20 that " ... the c.ontention, as

worded, goes to the availability of the data cited, not its accuracy or

adequacy." Accordingly, the Board finds (1), (2), (5), and (6) of

Contention (I)(A) to be resolved and withdrawn from this proceeding.

Contention (I)(A) now consists of subparts (3) and (4) only. Any

petition for reconsideration of this ruling shall be received by the

Board on or before September 12, 1986.

The Board proposed a schedule for completing discovery, filing

motions for Summary Disposition, and commencing hearing (Tr. 235-236)

that was discussed by the parties. The Board proposal would have

EXHIBIT 4 -

.

). .

'

-3-

allowed seven and a half weeks to complete discovery (fifteen and a half

weeks since the parties were admitted). Alternate schedules and

proposals were suggested. Tr. 244-246, 250-254. Counsel for the NRC

Staff, Mr. Chandler, reported that Dr. Herrick, the principal author of

the structural analysis underlying a significant portion of the Staff's

Safety Evaluation Report for tne spent fuel pools, had died recently,

Staff counsel was requested to report to the Beard on or before

August 29, 1986, the Staff's best estimate of how soon a replacement for

Dr. Herrick would be obtained for purposes of discovery. Tr. 247,

253-254.

Eight contentions have been admitted to the proceeding, one

informational in nature and four with multiple subparts. In light of

the parties' concerns, the Board has concluded that a longer period of

discovery would be beneficial and has expanded its initial proposed

discovery period by eight weeks. Accordingly, the Board sets the

following schedule for completing discovery and proceeding to hearing:

DATE EVENT

September 16, 1986 First round of interrogatories andrequests for production of documentsfiled by all parties.

| October 3, 1986 All answers to first round ofinterrogatories and requests forproduction of documents filed.

October 20, 1986 Last round of interrogatories (if needed)

EXHIBIT 4 .

*

-- --

I

f. .

I-4-

and requests for production of documents,

filed by all parties.

November 6,1986 All answers to last round ofinterrogatories and requests forproduction of documents filed.

December 8,1986 All depositions scheduled and completed.

December 29, 1986 All motions for Summary Disposition filed.

January 23, 1987 All answers to motions for SumaryDisposition filed.

February 18, 1987 Board issues ruling on motions for SumaryDisposition.

March 11, 1987 All prefiled testimony filed.

March 26, 1987 Hearing begins.

In the event no motions for Summary Disposition are filed, the

schedule will remain the same for completing interrogatories, production

of documents, and depositions with the remaining steps to be completed

as follows:

DATE EVENT

December 29, 1986 All prefiled testimony filed.

January 15, 1987 Hearing begins.

The foregoing schedule sets dates as maximums. The parties are

encouraged to engage in prompt, voluntary discovery.

EXHBiT A .

.- . - ._. _ _ - __ ._

. .

4

-5-

Appended to this memorandum and order is a list of transcript

corrections, most of which relate to misidentified speakers. Any

additional corrections should be submitted to the Board on or before

September 16, 1986.

ORDER

For all the foregoing reasons and in consideration of the entire

record in this matter, it is this 28th day of August,1986

.

ORDERED

1. That the NRC Staff shall advise the Board and parties

promptly, on or before August 29, 1986 if possible, as to when

Dr. Herrick can be expected to be replaced;

2. That the parties shall complete discovery and file motions for

Summary Disposition and profiled testimony in accordance with

the schedule prescribed in the foregoing memorandum; and

3. That the hearing in this proceeding is scheduled to commence

on March 26, 1987 if Summary Disposition motions are filed or

i

i .EXHISIT A .

> -

. .

-6-

on January 15, 1987 if no such motions are filed.

THE ATOMIC SAFETY AND LICENSING BOARD

- (d& SB. Padl Cotter, Jr. ,- irmanADMINISTRATIVE JUDGE

- 8. WGlenn 0. Bright '

#ADMINISTRATIVE JUDGE

At| & b1*

QJerfy Harbour /'i ADMINISTRATIVE JUDGE

Dated at Bethesda, Maryland,

this 28th day of August, 1986.

EXHIBIT A -

. n. -- - _. .__ - ._ __. _ _ . __

. .

1

DOLMElliUNITED STATES OF AMERICA "iNFL

NUCLEAR REGULATORY COMMISSION

ATOMIC SAFETY AND LICENSING BOARD '86 AlXi 29 P4 :02

Before Administrative Judges: 0FFILi .- .' 7:U- "'

00CKlitSu .B. Paul Cotter, Jr. , Chairman BRAEC'

Glenn 0. BrightDr. Jerry Harbour - - - , -

>-...LD AUG 29 IS36

)In the Matter of: ) Docket Nos. 50-275-OLA

) and 50-323-0LAPACIFIC GAS AND ELECTRIC COMPANY )

) (ASLBP No. 86-523-03-LA)(Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) ) August 28, 1986)

.

TRANSCRIPT CORRECTIONS

Listed below are corrections to the telephone prehearing conference

held Friday, August 22, 1986 in the captioned proceeding. The parties

are requested to submit to the Board any corrections or additions on or

before September 16, 1986.

Transcript Page and Line Correction

1. 226; 3: PHIL GRANT, ESQ. 1. PHILIP A. CRANE, JR., ESQ.

2. 226; 7: NANCY CULZER 2. NANCY CULVER

3. 226; 11: DIANNE GRUENEICH 3. DIAN M. GRUENEICH

4. 226; 14: [ BLANK] 4. On behalf of the NRC Staff:

LAWRENCE J. CHANDLER, ESQ.HENRY J. McGURREN, ESQ.

5. 227; 11: Laurel 5. Laurie

|

EXHIBIT A-

- . - .- -- -.

__

. .

*

-2-

6. 228; 5, 15, 22, 25: 6. MS. McDERM0TTMS. CULZER

7. 229; 4: MS. CULZER 7. MS. McDERM0TT

8. 229; 9: MR. GRUENEICH 8. MS. GRUENEICH

9. 230; 11: Laurel 9. Laurie

10. 233; 12: MS. CULZER 10. MR. CHANDLER

11. 242; 22: MR. FERGUSON 11. MR. CHANDLER

12. 248; 7: MS. CULZER 12. MS. CULVER

13. 249; 7: MS. CULZER 13. MS. CULVER

14. 249; 14: Laurel 14. Laurie

15. 249; 15: Culzer 15. Culver

16, 261; 18, 23: MS. CULZER 16. MS. CULVER

17. 262; 3: to the party 17. to the parties

J

i

1

4

|!

EXHIBIT A .,

. .__ ._ _ _ -- _. .. ._ ..

. .

UNITED STATES OF AMERICA NP*NUCLEAR REGULATORY COMMISSION

ATOMIC SAFETY AND LICENSING BOARD g grg -2 P3 :31Before Administrative Judges:

,

B. Paul Cotter, Jr. , ChairmanGlenn 0. Bright

Dr. Jerry Harbour

CF'!E Cc: 2 1986

)In the Matter of: ) Docket Nos. 50-275-0LA

) and 50-323-OLA4

PACIFIC GAS AND ELECTRIC COMPANY )) (ASLBP No. 86-523-03-LA)(Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) ) December 1, 19861

)

MEMORANDUM AND ORDER

I. Background

On November 25, 1986, the Board held a telephone conference in the4

captioned proceeding at the request of the Nuclear Regulatory Consnission

Staff (the Staff). Participants in the Conference included

representatives of the three intervening parties, Ken Haggard on behalf

of Consumers Organized for Defense of Environmental Safety (CODES), Dian

M.. Grueneich, Esquire, for the Sierra Club and the Mothers for Peace;

Bruce Norton, Esquire, for Applicant Pacific Gas and Electric Company

(PG&E); and attorneys Henry J. McGurren and Lawrence J. Chandler for the

Staff.

g - / ,./1AW2Te_w'/ f

~~~

,

:

EXHlDIT S. _ - - - - .- -- -- _ _. _. -. .

. .

.

2

Staff Counsel stated that the reason for requesting the conference

was to resolve Staff's dissatisfaction with responses to its

interrogatories to the three intervenors and to avoid the time consuming

process of filing motions to compel. Staff averred that NRC had not

received adequate responses to two rounds of interrogatories requesting:

(1) a list of witnesses; (2) a list of exhibits; (3) a list of

documents; and (4) a description of the views and positions of witnesses

to be called.

Counsel for PG&E joined with the Staff in asserting that responses

to PG&E interrogatories by the Mothers for Peace and Codes were

inadequate. Although expressing some dissatisfaction with the Sierra

Club's esponses, PG&E stated that the substance of its questions had

been answered by Dr. Ferguson who named himself as a witness on behalf

of the Sierra Club. However, PG&E argued that it was now too late for

the intervenors to complete responses to interrogatories and that they

should be barred from presenting witnesses and documentary evidence in

the proceeding for their failure to respond in a complete and timely

fashion.

Counsel for the Sierra Club and Mothers for Peace responded that,

if Staff and PG&E's complaints constituted a motion to compel, the

motion was untimely because it was required to be filed 10 days after

the answers to interrogatories were filed and that the operative date

for the filing of answers was November 10, 1986. Consequently, motionsi

EXHIBIT 3. ._. .- - -- -__

. .

-3-

to compel would have been due November 20. Therefore, counsel argued,

PG&E and the Staff had slept on their rights and are not entitled to

relief. Counsel also argued (joined by Mr. Haggard on behalf of CODES)

that the three intervenors simply did not know what witnesses or

documents they would rely on although counsel for the Sierra Club and

Mothers for Peace asserted thct those two intervenors would have a

better idea of witnesses and documentation after motions for summary

disposition were filed. Counsel also argued that no ruling had been

issued requiring that the information sought was needed by a date

certain.

Counsel for PG&E responded it would be impossible to file a summary

disposition motion until he was informed of intervenor's witnesses and

their positions on the issues. Staff Counsel concurred.

During the telephone conference, Counsel for Mothers for Peace

confirmed that their Contentions 2 and 3 had been withdrawn as stated in

their Answers to Interrogatories dated October 3,1986.

II. Discussion4

We need not reach the question of whether Staff's telephone

conference request arises to the status of a motion to compel and, if

so, whether the motion is timely. At this juncture, this Board's

obligation to prudent case management overrides such concerns.

EXHlBIT B_.

. .

-4-

This Board's obligation to insure that the proceeding is conducted

in an orderly and expeditious manner is well established. 10 CFR Part

2, Appendix A, at p. 120 (1986). See also Statement of Policy on

Conduct of Licensing Proceedings, 13 NRC 452 (CLI 81-8, 1981).

The degree of confusion and argumentation evidenced in the

telephone conference and in the conduct of discovery in this case to

date is not conducive to an orderly and expedited resolution of the

issues in this proceeding. Consequently, the Board has examined the

record in this matter including both the discovery conducted to date and

the schedule set in our memorandum and order of August 28, 1986 and

reached several conclusions.

First, the record makes clear that the essence of the matters at

issue here is factual and that, consequently, the likelihood of success

of any notions for summary disposition is de minimis. The time, effort,

and resources required to file motions for sumary disposition, weighed

against the likely success of such motions, leads the Board to conclude

they are not warranted.

Second, it appears that circumstances warrant setting dates certain

for all parties to file and exchange information concerning their direct

case as follows:

(1) Witnesses who will testify on their behalf;

EXHIBIT B

. .

-5-

(2) Lists of exhibits they intend to introduce;'

(3) Documents upon which the witnesses will rely;

(4) List of documents the parties intend to use on

cross-examination (unless disclosure would compromise the

cross-examination); and

(5) A brief description for all witnesses listed (no longer than

two pages for each witness) of the views and position on the

issues about which they will testify.

Accordingly, the foregoing information for each party's direct case is

to be filed by the parties with the Board and served on each other on or

before December 23, 1986. If any party is not going to present

documents or put on witnesses in their direct case, then they shall so

notify the Board ard all other parties by December 23, 1986. In this

context, the words " filed" and " notify" mean received. Documents and

witnesses not identified by December 23, 1986 will not be received as a

part of any party's direct case. If any of the parties now know of any

documents or witnesses to be used on rebuttal, they should also be

identified.

Thereafter, the parties are to schedule and complete any

depositions of witnesses listed on or before January 16, 1987. This

memorandum and order is not intended to preclude PG&E from taking the

deposition of Dr. Ferguson reported by counsel as scheduled for

December 4 or 5, 1986.

EXHIBIT 3

. .

.

-6-

Prefiled testimony is to be filed (that is, received) with the

Board and served on other parties on or before January 26, 1987. The

hearing in this case will comence at 9:30 A.M. Monday, February 2, at

Avila Beach, California.

It is so ordered.

FOR THE ATOMIC SAFETY AND LICENSINGBOARD

/DdLF. Pattl Cotter, Jr. , C 1rinanADMINISTRATIVE JUDGE

Dated at Bethesda, Maryland,

this 1st day of December, 1986.

.

EXHIBIT 23