ML19296C888

Response Clarifying Record Re Association of Commmunity Organizations for Reform Now 800211 Request for Order Compelling NRC to Negotiate Contentions Admissiblity.Urges Early Date for Prehearing Conference.W/Certificate of Svc

ML19296C888
Person / Time
Site:	Comanche Peak
Issue date:	02/20/1980
From:	Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002290025
Download: ML19296C888 (7)

Text

February 20, 1980 r D 'l i'l / y UNITED STATES OF AMERICA 4

yo'hef ' V Ci\ NUCLEAR REGULATORY COMMISSION

)

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 9

In the Matter of )

c) )

TEXAS UTILITIES GENERATING )

COMPANY, et al.

-~

) Docket Nos. 50-445

) 50-446 (Comanche Peak Steam Electric )

Station, Units 1 and 2) )

APPLICANTS' REPLY TO ACORN'S REQUEST FOR ORDER COMPELLING NRC STAFF TO NEGOTIATE ADMISSIBILITY OF CONTENTIONS By its pleading dated February 11, 1980, Intervenor ACORN requested that the Atomic Safety and Licensing Board

(" Board") order the NRC Staff "to discuss and negotiate the admissibility of ACORN's proposed contentions and/or reveal to Intervenors specific reasons for refusing to agree to admissibility . . . ." ACORN also requested that any hearing be postponed until such negotiations are completed. ACORN then proceeded to criticize the conduct of (and even charge bad faith by) the Staff in the negotiations leading to the execution of a stipulation by the Staff and Applicants on ACORN's contentions. ACORN refuses to execute the stipulation. While Applicants perceive this dispute to be primarily between the Staff and ACORN, we feel that the serious nature of the charge

,, against the Staff by ACORN compels us to submit the 8002290 O 255

follt' ring reply to ACORN's request in order to clarify the record and express our views on these matters.

We believe that the root of the dispute here is that ACORN's contentions lack the necessary bases (10 CFR S2. 714 (b) ) to permit the conclusion that they are admis-sible for litigation in this proceeding. Generally, the contentions proposed by ACORN raise issues which were culled from generic NRC studies (NUREG-0410) or otherwise conceived, and ACORN has failed to specify the relation-ship of the issues to Comanche Peak. See Supplemental Petition of ACORN (May 7, 1979). Faced with these fundamental inadequacies in ACORN's petition, even the Staff concluded that no more than a few of ACORN's contentions are admissible, and only then by giving ACORN the benefit of the doubt.

ACORN apparently misconceives the nature of the negotiations which have transpired and the role of the NRC Staff in those negotiations. Our perception of the negotiations is that the parties were attempting at least to agree on the wording of ACORN's proposed contentions in order that the subject matter of each is properly framed for later argument to the Board and, if admitted, for determining the scope of discovery and trial. An additional

purpose of the negotiations was to attempt to agree on the admissibility of proposed contentions.

To the extent that the parties cannot reach agreement on the admissibility of each of ACORN's proposed conten-tions, the time and place for such discussion is at the forthccming prehearing conference before the Board. The Board obviously should not single out the Staff (which is merely another party to this proceeding) and compel it to undertake additional discussion and negotiation with ACORN.

These preliminary matters already have consumed too much valuable time. Rather, the Board should schedule a prehearing conference for an early date, and thereby promptly resolve which contentions are admissible.

ACORN's attempt to belittle the efforts of the Staff and Applicants in attempting to stipulate on the wording and admissibility of ACORN's contentions, and its sugges-tion that the Staff has acted in bad faith, should be admonished by the Board. Certainly, the Applicants entered into these negotiations in an earnest attempt to refine and articulate the proposed issues. We have absolutely no basis to believe that the Staff intended otherwise. The negotiations were protracted and involved drafting and redrafting of the stipulations and contentions.

The negotiations involved much more effort that "a one-day meeting in July, 1979, and a conference call" on August 31, 1979, as suggested by ACORN. Perhaps ACORN is simply unaware of the efforts involved, since its representatives were rarely available even to receive telephone calls and since the burden of draftsmanship fell on the Staff and Applicants.

In any event, ACORN could at least have been con-structive had it stated either agreement or disagreement with the wording of each cc e tention presented in the attachment to the proposed stipulation. Then the Board would have had the views of the parties on that important aspect. Rather than doing so, ACORN belittled the honest efforts of the parties to reach an accord, and sought an order directing further negotiations. We urge the Board to refuse to aid ACORN in this dilatory tactic.

Another observation is warranted. ACORN suggests that the general contention admitted (and drafted) by the Board regarding quality assurance (see Board Order dated June 27, 1979) should not be the subject of negotiations.

On the contrary, we believe that our efforts to refine the very broad scope of that contention are appropriate. We view the Board's Order as establishing quality assurance

as a valid contention for all intervenors. However, we do not consider that Order to bar any attempt to draft specific wording which at least ties the QA contention to the articulated basis of each intervenor. In short, while we do not at this time challenge the Board's admission of a QA contention, we feel free to attempt to negotiate a more specific rendition of the contention.

Finally, we take issue with ACORN's dilatory sugges-tion that a timely hearing in this proceeding should be postponed. The orderly progress of administrative proceedings requires that the Board conduct the necessary prehearing conferences and hearings as soon as possible. We urge the Board to set an early date for a prehearing conference so that contentions mcy be determined and discovery may proceed.

/

Respe tf lly submitted, l -

Nichc- sm . Reynolds Debev s & Liberman 1200 Sev teenth Street, N.W.

Washington, D.C. 20036 February 20, 1980

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

)

TEXAS UTILITIES GENERATING )

COMPANY, et al.

) Docket Nos. 50-445

) 50-446 (Comanche Peak Steam Electric )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of ' Applicants' Reply To ACORN'S Request For Order Compelling NRC Staff to Negotiate Admissibility Of Contentions: dated February 20, 1980, in the captioned matter have been served upon the following by deposit in the United States mail this 20th day of February, 1980:

Elizabeth S. Bowers, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Board Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Marjorie Ulman Rothschild, Esq.

Dr. Richard F. Cole Office of the Executive Atomic Safety and Licensing Legal Director Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Richard W. Lowerre, Esq.

Dr. Forrest J. Remick Assistant Attorney General Atomic Safety and Licensing Environmental Protection Board Panel Division 305 E. Hamilton Avenue P.O. Box 12548 State College, Pennsylvania Capitol Station 16801 Austin, Texas 78711

Mr. Richard L. Fouke Mr. Geoffrey M. Gay CFUR West Texas Legal Services 1668B Carter Drive 406 W. T. Waggoner Building Arlington, Texas 76010 810 Houston Street Fort Worth, Texas 76102 Mrs. Juanita Ellis President, CASE Mr. Chase R. Stephens 1426 South Polk Street Docketing & Service Section Dallas, Texas 75224 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 It Nichola S/. Reynolds L

cc: Homer C. Schmidt Spencer C. Relyea, Esq.