ML021690122
| ML021690122 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 02/22/2002 |
| From: | Repka D Dominion Nuclear Connecticut, Winston & Strawn |
| To: | Atomic Safety and Licensing Board Panel |
| Byrdsong A T | |
| References | |
| +adjud/rulemjr200506, 50-423-LA-3, ASLBP 00-771-01-LA-R, RAS 4546 | |
| Download: ML021690122 (6) | |
Text
"A-s 4 54 q February 22, 2002 DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION June 13, 2002 (I:03PM)
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF In the Matter of: )
Docket No. 50-423-LA-3 Dominion Nuclear Connecticut, Inc. )
) ASLBP No. 00-771-01-LA-R (Millstone Nuclear Power Station, )
Unit No. 3) )
DOMINION NUCLEAR CONNECTICUT, INC.'S RESPONSE TO MOTION TO EXTEND SCHEDULING ORDERS AND DATE OF ORAL ARGUMENT Dominion Nuclear Connecticut, Inc. ("DNC") herein responds to the "Connecticut Coalition Against Millstone and Long Island Coalition Against Millstone Motion to Extend Scheduling Orders and Date of Oral Argument" ("Motion"), dated February 19, 2002.
In their Motion, the Connecticut Coalition Against Millstone ("CCAM") and the Long Island Coalition Against Millstone ("CAM") (collectively, "Intervenors") request that the Atomic Safety and Licensing Board ("Licensing Board") extend the deadlines by 60 days for both the submission of Subpart K written summaries and the oral argument.' The Motion should be summarily denied.
In its "Memorandum and Order (Telephone Conference Call, 10/31/01; Schedules for Proceeding)," dated November 5, 2001, the Licensing Board set the dates for submission of Subpart K written summaries and oral argument as March 18 and April 2, 2002, respectively.
~~'se y"
The Commission in 1998 specifically reassessed and updated its policy on the conduct of adjudicatory proceedings to ensure an efficient process and "prompt and fair resolution" of proceedings. Statement of Policy on Conduct of Adjudicatory Proceedings, CLI 98-12, 48 NRC 18 (1998); 63 Fed. Reg. 41,872 (Aug. 5,1998) ("1998 Policy Statement"). The Commission emphasized, among other things, that (1) parties to proceedings are expected to meet their obligations and meet established time frames; and (2) the licensing boards may grant extensions of time, but this should be done only when warranted by "unavoidable and extreme circumstances." Id., 48 NRC at 21; see also Baltimore Gas and Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 342 (1998).2 This policy defines an expectation for meeting deadlines and a standard of "good cause" for delay that the Intervenors have certainly not met.
The Intervenors' basis for the Motion is that counsel is "a solo practitioner acting pro bono," that counsel has been too busy with another case (for which the jury trail was apparently completed on February 11, 2002), and that DNC and the NRC Staff have made "copious" responses to discovery requests (responses, of course, to discovery requests that the Intervenors themselves made). These arguments are completely inadequate. These reasons do not establish "unavoidable and extreme circumstances" as required by the Commission.
First, it matters not whether counsel is pro bono, solo, or well-paid. The obligation and the standard for delay remain the same. Likewise, involvement in another trial (a trial now over) does not relieve Intervenors from meeting their current and separate obligations 2 These policy objectives would seem to be particularly applicable in a proceeding such as this one conducted under 10 C.F.R. Part 2, Subpart K. Subpart K was adopted with a view toward expedited completion of hearings. See Statement of Considerations, 10 C.F.R. Part 2, Subpart K, 50 Fed. Reg. 41,662 (Oct. 15, 1985).
at the NRC. Since 1981, the NRC has emphasized that all parties who want to participate in a formal adjudicatory process at the NRC must meet their obligations. The Commission wrote:
Fairness to all involved in NRC's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Commission regulations. While a board should endeavor to conduct the proceeding in a manner that takes account of the special circumstances faced by any participant, the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations. When a participant fails to meet its obligations, a board should consider the imposition of sanctions against the offending party.
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981);
see also Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1261 n.29 (1982). The Commission's expectation in this regard was renewed and, indeed, re-invigorated by the 1998 Policy Statement.
Moreover, any suggestion that the volume of discovery responses creates unavoidable and extreme circumstances is absurd. A party cannot create the grounds for delay by their own lack of focus in discovery. The schedule in this case allowed ample time for reviewing discovery responses, preparing position papers, and meeting other simultaneous obligations. Indeed, the time from the opening of discovery in this phase of the proceeding to the scheduled date for filing of Subpart K position papers is over 130 days (i.e., over 4 months).
The date for the written filings is still over three weeks away. Quite simply, ample time has been provided and no grounds have been given to justify extending the schedule.
In sum, a deferral of the Subpart K written summary filing date and oral argument date, as requested by the Intervenors, would inherently compromise the Commission's objective of an efficient and prompt resolution of this matter. The Intervenors have not shown any good cause for the deferral, much less unavoidable and extreme circumstances. Consequently, the Motion must be denied.
Respectfully submitted, David A. Repka Donald P. Ferraro WINSTON & STRAWN 1400 L Street, NW Washington, D.C. 20005-3502 Lillian M. Cuoco DOMINION NUCLEAR CONNECTICUT, INC.
Millstone Power Station Building 475/5 Rope Ferry Road (Route 156)
Waterford, CT 06385 Counsel for DOMINION NUCLEAR CONNECTICUT, INC.
Dated in Washington, D.C.
this 2 2 nd day of February 2002 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: ))
) Docket No. 50-423-LA-3 Dominion Nuclear Connecticut, Inc.
)
) ASLBP No. 00-771-01-LA-R (Millstone Nuclear Power Station, Unit No. 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of "Dominion Nuclear Connecticut, Inc.'s Response to Motion to Extend Scheduling Orders and Date of Oral Argument" in the captioned proceeding have been served on the following by deposit in the United States mail, first class, this 2 2 nd day of February 2002. Additional e-mail service has been made this same day as shown below.
Charles Bechhoefer, Chairman Dr. Richard F. Cole Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 (e-mail: cxb2@nrc.gov) (e-mail: rfcl @nrc.gov)
Dr. Charles N. Kelber Office of the Secretary Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Attn: Rulemakings and Adjudications Staff Washington, DC 20555-0001 (original + two copies)
(e-mail: cnk@nrc.gov) (e-mail: HEARINGDOCKET@nrc.gov)
Office of Commission Appellate Adjudicatory File Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555
Ann P. Hodgdon, Esq. Nancy Burton, Esq.
Office of the General Counsel 147 Cross Highway U.S. Nuclear Regulatory Commission Redding Ridge, CT 06876 Washington, DC 20555 (e-mail: nancyburtonesq@hotmail.com)
(e-mail: aph@nrc.gov)
Diane Curran Harmon, Curran, Spielberg & Eisenberg, L.L.P.
1726 M Street, N.W.
Suite 600 Washington, DC 20036 (e-mail: dcurran@harmoncurran.com)
David A. Repka Counsel for DNC, Inc.