ML19269D800

Request by Houston Lighting & Power for Denial of Tx Pirg Untimely 790327 Brief Seeking Admission of Renumbered Contention 12 Re Fire in Wiring.Certificate of Svc Encl

ML19269D800
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	04/03/1979
From:	Culp R, Newman J, Reis H LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:
References
NUDOCS 7906110440
Download: ML19269D800 (7)

Text

April 3, 1979 WC PUBLIC DOCUMENT Roeg p ,,

p UNITED STATES OF AMERICA N NUCLEAR REGULATORY COMMISSION f T1 T ,

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

-4 Eh <> <s:

s 3..

In the Matter of ) F

) 01 HOUSTON LIGHTING & POWER COMPANY ) Docket No. 50-466

)

(Allens Creek Nuclear Generating )

Station, Unit 1) )

APPLICANT'S RESPONSE TO TEXPIRG'S BRIEF IN SUPPORT OF ADMISSION OF RENUMBERED CONTENTION NO. 12-FIRE IN WIRING On March 27, 1979, Intervenor TexPirg filed a brief in response to the Licensing Board's Supplemental Order Ruling Upon Intervention Petitions dated March 14, 1979, (Order) which granted TexPirg the opportunity to justify, under the five factors set forth in 10 C.F.R. S 2. 714 (a) , the admission of its contention 2 relating to fast flaming of electrical wiring at ACNGS.-~*/

Specifically, the Board noted that it was particularly interested in movant's explanation of good cause for not having sought timely amendment '

shortly after receipt of the UL fire protection research test which had been forwarded by the Staff on October 30, 1978. Reliance by PIRG upon WASH-1400, the Risk Assessment Review Group Report, the Commission's Policy Statement, and/or upon purported Staff advice with regard to Class 9 accident conten-tions will not be deemed by the Board as a showing of good cause.

Order, p. 6, n. 4.

2255 093

_/ TexPirg's brief was filed one day later than the March 26, 1979 deadline established in the Board's Order, p. 6, and therefore should be rejected as untimely. However, if the Board decides to review the brief on its merits, Applicant's response to the brief is set forth herein.

7906011 49/O

As justification for its failure to file Contention 2 after receiving the Underwriters' Laboratory Report (UL) from the NRC Staff in early November, 1978,--*/ TexPirg claims that (1) it believed that since it had previously dropped this contention while negotiating a stipulation of contentions with the NRC Staff, it could not raise this issue without " breaking our agreement," and (2) . . . we were so busy doing other things that we probably would not have had time to do it."

(Brief, p. 2). Each is discussed below.

TexPirg is represented by counsel in this proceeding.

Whether the stipulation constituted a bar to the contention is a matter for the judgment of that counsel.-~**/Even if TexPirg had some doubt as to whether the contention was barred by the stipulation, it nevertheless might have filed the contention or taken other appropriate action on a timely basis to obtain a ruling from the Board. At the very least, TexPirg could have, but did not, raise this matter at the special prehearing conference held in this proceeding on November 17-18, 1978.

TexPirg's assertion that it was too " busy" to file the contention fails any reasonable test of " good cause." The Board and parties to this proceeding are all busy, but that does not relieve them of their responsibilities in this case.

--*/ This report was transmitted to the Board and the parties by the Staff on October 30, 1978.

--**/ TexPirg's counsel apparently felt no such constraint with respect to other issues, filing on November 2, 1979 and February 2, 1979, additional contentions for Board consideration.

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The "too busy" excuse is never " good cause" for failure to file a pleading on time. Duke Power Co. (Cherokee Nuclear Station, Units 1, 2, and 3) ALAB-440, 6 NRC 642, 644 (1977). Moreover, even if TexPirg were " preparing for the special prehearing conference" in this proceeding as it claims, no attempt is made to explain why the contention was not filed until some 2 1/2 months after the conclusion of that prehearing conference.

In short, TexPirg's showing of good cause is based solely on the fact that its counsel has changed his mind about the legal effect of its stipulation with the Staff and that, in any event, TexPirg was too busy to address the issue earlier. If either of these could constitute good cause, administrative proceedings would never end.

Having failed to establish good cause to excuse its untimely filing, TexPirg carries a " heavy burden" in showing that the other four factors in 52.714 (a) weigh in its favor. Virginia Electric

& Power Co. (North Anna Station, Units 1 and 2) ALAB-289, 2 NRC 395, 398 (1975). TexPirg has not made any persuasive showing with respect to factors (ii) and (iv) of that section. The remaining factors weigh against the admission of this contention.

As to factor (v) TexPirg admits that admission of this contention "will slightly broaden the issues, and perhaps slightly delay the proceeding." But, according to TexPirg, "[n} either effect will be significant nor beyond that normally experienced by all 2255 095

contentions in all hearings." (Brief, p. 3). Certainly, admitting a contention in the proceeding at this stage would broaden the issues to be tried and could have a significant impact on the hearing schedule, particularly since discovery on all admitted issues except one is now closed and a prehearing conference is scheduled for April 18, 1979. Such a delay is clearly unwarranted in these circumstances.

As to factor (iii) (whether intervenor's " participation may reasonably be expected to assist in developing a sound record") while TexPirg claims that its Executive Director and its attorney have some scientific training (Brief, p. 3) , it does not show how this scientific training may be relevant to this contention nor does it represent that either will testify on this issue in this proceeding or that it plans to call expert witnesses to testify.~~*/ See Detroit Edison Co. (Greenwood Energy Center, Units 2 and 3) ALAB-476, 7 NRC 759, 764 (1978).

TexPirg has provided no basis for the Board to conclude that TexPirg may " reasonably be expected to assist in developing a sound record" on this issue.

_/ It should be noted that in response to Applicant's interrogatories to TexPirg, dated March 13, 1979, TexPirg has identified only one expert witness and possibly one other who will testify on two out of TexPirg'r original six contentions. (TexPirg's Response to HL&P's First Set of Interrogatories, March 27, 1979).

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In conclusion, Applicant urges the Board to deny the admission of Contention 2 based upon TexPirg's failure to justify under the Commission's regulations its untimely filing.

Respectfully submitted, W

ack B. Newdhn Harold F. Reis Robert H. Culp 1025 Connecticut Avenue, N.W.

Washington, DC 20036 J. Gregory Copeland Charles G. Thrash 3000 One Shell Plaza Houston, Texas 77002 Attorneys for Applicant HOUSTON LIGHTING & POWER COMPANY OF COUNSEL:

LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N.W.

Washington, DC 20036 BAKER & BOTTS .-

3000 One Shell Plaza Houston, Texas 77002

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

)

HOUSTON LIGHTING & POWER COMPANY ) Docket Nc. 50-466

)

(Allens Creek Nuclear Generating )

Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Applicant's Response to Texpirg's Brief in Support of Admission of Re-numbered Contention No. 12-Fire in Wiring in the above-captioned oroceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand-delivery this 3rd day of April, 1979.

Sheldon J. Wolfe, Esq., Chairman Richard Lowerre, Esq.

Atomic Safety and Licensing Assistant Attorney General Board Panel for the State of Texas U.S. Nuclear Regulatory Commission P. O. Box 12548 Washington, D. C. 20555 Capitol Station Austin, Texas 78711 Dr. E. Leonard Cheatum Route 3, Box 350A Hon. LeRoy Valicek, Mayor Watkinsville, Georgia 30677 City of Wallis, Texas 77485 Mr. Gustave A. Linenberger Hon. LeRoy Grebe Atomic Safety and Licensing County Judge, Austin County Board Panel P. O. Box 767 U.S. Nuclear Regulatory Commission Bellville, Texas 77481 Washington, D. C. 20555 Atomic Safety and Licensing Chase R. Stephens Appeal Board Docketing and Service Section U.S. Nuclear Regulatory Office of the Secretary of the Commission Commission Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Atomic Safety and Licensing Board Panel R. Gordon Gooch, Esq. U.S. Nuclear Regulatory Commission Baker & Botts Washington, D.C. 20555 1701 Pennsylvania Avenue, N.W.

Washington, D. C. 20006 2255 098

Steve Schinki, Esquire Staff Counsel U.S. Nuclear Regulatory Commission Washington, D. C. 20555 John F. Doherty 4430 1/2 Leeland Houston, Texas 77023 Carro Hinderstein 8739 Link Terrace Houston, Texas 77025 Brenda McCorkle 6140 Darnell Houston, Texas 77074 James Scott, Jr.

8302 Albacore Houston, Texas 77074 Y W J k R. Newman' 2255 099 .