ML19271A998

Motion for Schedule of Prehearing Procedures & Commencement of Evidentiary Hearings.Urges Adoption of NRC Recommendation to Hold Hearings During Oct 1980.Intervenor Arguments Alleviated,Moot & Unjustifiable.Certificate of Svc Encl

ML19271A998
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	08/07/1980
From:	Copeland J, Newman J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-CP, NUDOCS 8008110510
Download: ML19271A998 (10)

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

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(Allens Creek Nuclear )

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No. 1) )

APPLICANT'S MOTION TO SET A SCHEDULE FOR COMMENCING EVIDENTIARY HEARINGS On July 18, 1980, the Staff afdressed a letter to the Licensing Board concerning a meeting among the Staff, Applicant and several of the intervenors held on July 10, to discuss a schedule for the completion of prehearing procedures and the commencement of evidentiary hearings.

In its letter, the Staff set forth a proposed schedule based upon discussions with the Applicant, and modified to reflect concerns raised by the intervenors at the July 10, meeting.

The Staff also proposed that the Board hold a Prehearing Conference to discuss the proposed schedule. The Board's

" Order Scheduling Prehearing Conference" dated July 22, adopted the Staff's latter proposal and set a Conference date of August 13, 1980, in order to consider: (1) setting due dates for t.he responses to motions for summary dispo-sition; (2) establishing dates for the filing of testimony 0505 8008110 b- io G.- S o/

and commencement of the first phase of the evidentiary hearing; (3) simplifying the many contentions admitted as issues in this proceeding.

Applicant hereby moves the Board to issue a prehearing conference order adopting the schedule recommended by the Staff. Applicant sets forth below, the reasons why the Staff's proposed schedule is fair to all the parties and should be adopted by the Board. Applicant files this motion at this time to allow the Board to fully consider the merits of the proposed schedule in advance of the Prehearing Con-ference so that its ruling can be made at the Conference.

Such a prompt ruling will give all parties the maximum possible time to prepare testimony and respond to motions for summary disposition.

Intervenors Doherty, Baker and Marrack have separately filed either a letter or motion arguing that the Staff's proposed schedule should not be adopted. TexPirg, although it has not submitted a written statement of its position, indicated clearly at the July 10, meeting, that it was strongly opposed to the Staff's proposal. Applicant contends that if the Board considers the burden imposed on each of these parties by the proposed schedule, it is quite clear that none of them has cause to complain. In fact, as discussed below, the schedule set forth in the Staff's recent letter to the Board reflects precisely the separate

interests, positions and burdens imposed on each party.

Intervenor Doherty In a motion dated July 14, 1990, intervenor John Doherty argues that it will take him until January, 1981 to respond to motions for summary disposition. While Staff and Applicant have filed a number of motions for summary disposition on intervenor Doherty's contentiens, all of this intervenor's contentions raise safety issues which would not be heard until sometime in 1981 under the Staff's schedule. Therefore, he will not be required to prepare any testimony for the first phase of hearings during the period in which he will be responding to motions for summary disposition, nor for a significant time there-after. Moveover, Applicant and Staff have substantially reduced the number of Mr. Doherty's contentions as to which motions for summary disposition have been filed. Instead of filing motions for summary disposition on 33 of his con-tentions as originally intended, Staff and Applicant have filed motions on only 14. Thus, the burden on Mr. Doherty in responding to summary disposition motions has been substantially reduced. Even by his own conservative count, Mr.

Doherty could complete all of his responses before the date suqqested by Staff for filing his responses and well before the proposed commencement of hearings. /

-*/ Mr. Doherty claims it will take 5 days to prepare a response to each motion for summary disposition. Computing 5 days

[ footnote continued on next page]

His concern that he will not be able to attend the environ-mental hearings is therefore alleviated.

Intervenor TexPirg Intervenor TexPirg has, under the proposed schedule, several environmental contentions to be litigated early in the proceeding as well as a few safety contentions on which Staff and Applicant have filed motions for summary disposition. For the reasons set forth below, the burden placed on TexPirg is not unreasonable.

First, Applicant and Staff have filed motions for summary disposition on only five (5) of TexPirg's contentions.

A period of approximately 60 days to respond to 5 motions for summary disposition does not, in Applicant's view, con-stitute such a heavy burden on TexPirg as to require an adjust-ment to the hearing schedule.- j Second, all of the five

{ Footnote continued from previous page.]

per contention, times 14 contentions, gives 70 days total to respond. Beginning on July 18, the date on which Mr. Doherty was served notice of which of his contentions would be subject to motions for summary disposition, and counting forward 70 days, Mr. Doherty should have completed his responses before the October 1, date proposed by the Staff, and well before the Octo-ber 20. hearing date. By October 1, Mr.Doherty will have had Applilant's motionsin hand for 57 days.

• • /

The Commission's regulations permit only 20 days for the filing of responses to motions for summary dispo-sition. 10'CFR S2.749.

5-contentions which are the subject of Staff and Applicant motions for summary disposition are safety contentions.

Presumably, the experts upon whom TexPirg will rely to file responses on these technical safety issues will not be the same persons as those who will prepare testimony on its entirely unrelated environmental contentions. Of course, if TexPirg does not intend to file affirmative testimony on most or all of its environmental contentions, its burden will be very small indeed.

Finally, TexPirg's environmental contentions that are proposed for early hearing sessions are among the first filed by that party almost two years ago. Accordingly, TexPirg has had a substantial amount of time to begin pre-paration for the trial of these issues.

Intervenor Baker In a letter dated July 16, 1980, intervenor Baker makes two arguments regarding the ef fect of the Staff's proposals on the financial qualifications intervenors. / Intervenor

-*/ Mr. Baker also argues that the proposed schedule imposes an unfair burden on some other parties; a matter not of concern to him and which has, in any case, been addressed above. In addition, he complains that he was not con-sulted by Staff and Applicant before they adopted and

{ Footnote continued on next page]

first argues that the September 15 date recommended in the schedule for a prehearing conference is too tight. Appli-cant cannot understand the intervenor's concern since the proposed schedule for hearing environmental issues, which runs through early 1961, does not set forth any date for the financial qualifications contention. Since the schedule does not anticipate litigating his concerns in the first phase of hearings, no burden whatsoever has been placed upon this party. Mr. Baker will have ample time to review and digest all of the material mentioned in his letter before the relevant hearings begin.

Intervenor Baker also argues " strenuously" about "the way in which Staff and Applicant handled the rewriting of contentions." At the July 10, meeting, Mr. Baker expressed concern that as he understood the proposed rewording of his financial qualifications contention, it did not include the allegation that Applicant has not and will not obtain ade-quate rate relief from the Texas P.U.C., and that he might therefore be precluded from litigating this question. This matter was subsequently included in the Staff's reworded contention, and the argument is therefore moot.

Intervenor Marrack Finally, intervenor Marrack has argued, in a motion dated July 23, 1980, that evidentiary hearings should not commence until April, 1981. Dr. Marrack offers no justifi-(Footnote continued from previous page]

presented a proposed schedule. The Board has already ruled on this issue in its July 29, 1980 Order, p.2 n.l.

i cation for this extended delay, and in fact, his proposal has no justification. This intervenor has two (2) contentions admitted into this proceeding. It is entirely unreasonable for him to expect the amount of time he has requested to prepare testimony on them.

In Appliaant's view, the schedule proposed by the Staff does not impose an unreasonable burden on any party, including those who have filed no protest. It has now been over 18 months since the first group of intervenors was admitted by this Board. The time has arrived, finally, to consider the merits of the numerous factual issues raised by the intervenors in this proceeding. Accordingly, Applicant requests the Board to adopt, at the upcoming Prehearing Conference, the schedule proposed by the Staff and begin evidentiary hearings in October, 1980.

Respectfully submitted, v b4 OF COUNSEL: Jacx R. Newman LOWENSTEIN, NEWMAN, REIS, Robert H. Culp AXELRAD & TOLL David B. Raskin 1025 Connecticut Ave., N.W. 1025 Connecticut Ave., N.W.

Washington, D.C. 20036 Washington, D.C. 20036 J. Gregory Copeland C. Thomas Biddle, Jr.

BAKER & BOTTS Darrell Hancock 3000 One Shell Plaza 3000 One Shell Plaza Houston, Texas - 77002 Houston, Texas 77002

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing:

APPLICANT'S MOTION TO SET A SCHEDULE FOR COMMENCING EVIDENTIARY HEARINGS was served upon the following persons, by hand *, or by deposit in the United States Mail, first class postage prepaid, this 7th day of August, 1980.

David B. Raskin

• Sheldon J. Wolfe, Esq. , Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Co= mission Washington, DC 20555 Richard Lowerre, Esq.

Assistant Attorney General

• Dr. E. Leonard Cheatum for the State of Texas Route 3, Box 350A Watkinsville, Georgia 30677 P. O. Box 12548 Capitol Station

• Mr . Gustave A. Linenberger Austin, Texas 78711 Atomic Safety and Licensing Board Panel Hon. Charles J. Dusek U.S . Nuclear Regulatory Commission Mayor, City of Wallis Washington, DC 20555 P. O. Box 312 Wallis, Texas 77485

• Chase R. Stephens Docketing and Service Section Hon. Leroy H. Grebe Office of the Secretary of County Judge, Austin County the Commission P. O. Box 99 U.S. Nuclear Regulatory Commission Bellville, Texas 77418 Washington, DC 20555 Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

• Steve Schinki, Esq. James M. Scott, Jr.

Staff Counsel 13935 Ivy Mount U.S. Nuclear Regulatory Sugar Land, Texas 77478 Commission ,

Washington, DC 20555 William Schuessler 5810 Darnell Joh.: F. Doherty Houston, Texas 77074 4327 Alconbury Street Houston, Texas 77021 Stephen A. Doggett, Esq.

P. O. Box 592 Madeline Bass Framson Rosenberg, Texas 77471 4822 Waynesboro Drive Houston, Texas 77035 Bryan L. Baker 1923 Hawthorne Robert S. Framson Houston, Texas 77098 4822 Waynesboro Drive Houston, Texas 77035 J. Morgan Bishop Margaret Bishop Carro Hinderstein 11418 Oak Spring 609 Fannin Street Houston, Texas 77043 Suite 521 Houston, Texas 77002 W. Matthew Perrenod 4070 Merrick D. Marrack Houston, Texas 77024 420 Mulberry Lane Bellaire, Texas 77401 TexPIRG Att: Clarence Johnson Brenda McCorkle Executive Director 6140 Darnell Box 237 U.C Houston, Texas 77074 University of Houston Houston, Texas 77004 F. H. Potthoff, III 7200 Shady Villa, #110 Houston, Texas 77080 Wayne E. Rentfro P. O. Box 1335 Ros e nberg , Texas 77471 A

David B. Raskin

.