ML19338F925

Response in Opposition to Tx Pirg Motion for Summary Disposition Served on 801009 Instead of 801008.No Good Cause Presented Re Late Filing.Motion Fallacious & Argument Beyond Admitted Contentions.W/Certificate of Svc

ML19338F925
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	10/22/1980
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 8010280020
Download: ML19338F925 (10)

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October 22, 1980 a to o s A s c c:q UNITED STATES OF AMERICA o ,g.g~ B NUCLEAR REGULATORY COMMISSION 1- T_

-- Oc7 2 4tg BEFORE THE ATOMIC SAFETY AND LICENSING YdAkbf2 Cf t.hs i a[t In the Matter of S g M d HOUSTON LIGHTING & POWER COMPANY S Docket No. 50-466 S

(Allens Creek Nuclear Generating S Station, Unit 1) S APPLICANT'S RESPONSE TO TEXPIRG'S MOTIONS FOR

SUMMARY

DI3 POSITION SERVED ON OCTOBER 9, 1980 On the afternoon of October 9, 1980, Applicant's counsel received a telephone call from Mr. Scott, TexPirg's counsel, who advised that a copy of TexPirg's further mo-tions for summary disposition could be picked up at his home address. The motions were due on October 8.-1/ Thus, for the second time, Mr. Scott failed to serve his motions for 2/

summary disposition within the time ordered by the Board."

1/ See, ASLB Order, p. 4 (Oct. 1, 1980).

2/ TexPirg's first set of motions for summary disposition were served on the Applicant by mail rather than by hand delivery as ordered by the Board's Order of August 21, 1980, which appreciably reduced the time for response by Applicant and Staff. This is obvi- I ously what the Board intended to avoid by ordering l hand delivery. 1 g{)l$ d) ,

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TexPirg's continued failure to comply with the time limits imposed by the Board is inexcusable, particularly when the deadline was extended upon TexPirg's own motion. The Board should dismiss the motions as untimely.

Aside from the issue of timeliness, the three page document submitted by TexPirg is a motion for summary disposi-tion in title only. A motion for swmmary disposition must offer evidence establishing that there is no genuine issue in controversy. See Applicant's Memorandum Of Law In Sup-port Of Responses To Intervenors' Motions For Summary Dis-position," filed October 2, 1980, at pp. 2-3 (hereinafter

" Applicant's Memorandum"). These pleadings are no more than a bare restatement of TexPirg's contentions, completely devoid of admissible evidence. The purely argumentative assertions in the four licts of " material facts" are pat-ently insufficient as evidentiary support for summary dis-2/

position. Applicant's Memorandum at 6.

-3/ The last sentence of TexPirg's motion states that the

" evidence is in the record of this proceeding and in the NRC's files." However, TexPirg lias failed to specify where that evidence may be found. Neither the Board nor the Applicant have the burden to comb through all of the NRC's files in an attempt to devine the evidentiary basis for TexPirg's motion.

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Because of their obvious insufficiency, TexPirg's motions need not be answered. It is firmly established in this agency's practice that:

Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.

Cleveland Electric Illuminating Company, et al. (Perry Nuclear Power Plant, Units 1 and 2) , ALAB-443, 6 NRC 741, 753-4 (1977), quoting Adickes v. Kress & Co., 398 U.S. 144, 159 (1970) (emphasis in original). It follows, perforce, that the complete absence of evidentiary support in the ,

subject motions removes any burden of reply from Applicant i and requires that the motions be denied.

As explained in Applicant's Memorandum, there are very clear legal standards that must be met in moving for summary disposition. The motions in question do not even constitute a good faith effort to comply with those standards.

The motions are a particular affront to the Board, which not only granted TexPirg an extension until October 8 to'fale additional motions for summary disposition, but also cited this extension as one of the grounds for beginning the hearings in January, 1981.-4/

4/ See, ASLB Order, pp. 2-3 (Oct. 3, 1980).

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As the Board is aware, the summary disposition process can be beneficial in a hearing such as this because it can eliminate many issues altogether or narrow issues i

that ultimately go to trial. TexPirg's motions do neither --

they simply burden the Applicant, the Staff and the Board with a frivolous filing that must be given a considered response.

W As stated above, Applicant has no legal obligation to reply to the substance of TexPirg's motions. However, a 1

few comments on the merits of the motions illustrate that the motions are fallacious on their face and that there are issues remaining for trial on each contention:

TexPirg AC 1. Other than an unspecified reference to the "EIS, ER, Staff studies, and Interrogatory answers,"

9 TexPirg fails to provide any specific citation in support of its argument that the impacts of transporting the reactor vessel would be less at STP than at Allens Creek. In re-plying to a prior motion for summary disposition with regard 5/ In addition to denying these motions, Applicant believes the Board should admonish TexPirg's counsel that the Commission's regulations permit the Board to take neces-sary action agr?nst counsel engaging in dilatory tactics.

10 C.F.R. 5 2. ~,1; (c) ( 4 ) . As the commencement of the hearing approaches, the burden of all parties increases and there is little time to respond to frivolous pleadings. i i 1 l

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1 to TexPirg Contention 1, Applicant filed the affidavit of i Mr. James R. Hussey, which described the study by Dames &

Moore on the impact of transporting the reactor to the site.

The conclusion was that the impact would be insignificant.

As to the legal points raised in TexPirg's motion, the simple answer is that the FES can be modified by the ASLB's initial decision. 10 CFR 551'. 52 (b) (3) .

TexPirg Contention Nos. 2 and 4. Paragraphs 1, 2 and 4 are nothing more than restatements of TexPirg's con-tention with even less information than is contained in the original statement of the contention. Paragraphs 4 and 5 stray well beyond the admitted contentions in this case and are thus clearly improper in a motion for summary disposi-tion. Finally, no articulated bases are provided to support the statements in these paragraphs.

TexPirg Contention Nos. 5, 7, 8 and AC 12. Para-graph 1 deals with the need-for-power issues which are not admitted issues in this case. [See ASLB Orders of Sept ember 26 and November 7, 1979]. Paragraph 2 is totally undocu-mented and proves nothing even if it were true.~6/ Paragraph 6/ The attached article frcm The Houston Post is apparently the source of this paragraph. If so, TexPirg obviously misread the article. The City of Houston project has nothing to do with the generation of electric power.

3 was addressed in Applicant's answer to TexPirg's prior motion for summary disposition on the natural gas alterna-tive, including the affidavits of Dr. Guy and Mr. McGuire.

Even if paragraph 4 were true, it proves nothing. Paragraph 5 is nothing mere than a summarization of all of TexPirg's contentions and it is totally unsupported by any evidence.

TexPirg must prevail at trial on every one of the issues in this grouping before any such conclusion can be drawn.

TexPirg Contention No. AC 31. TexPirg fails to establish the relevance of Paragraph 1 even if it is true.

In addition, TexPirg has not established that there is any requirement as to the number of Doctors of Philosophy which Applicant must hire. As to paragraph 2, TexPirg has not established that there is any relationship between construc-tion problems at STP and Applicant's technical capability to construct the Allens Creek project. Even assuming some such relationship, TexPirg has failed to demonstrate, or even allege, that there are no issues to be tried in this case relating to STP construction problems and their relevance to Applicant's technical qualifications to construct ACNGS.

Paragraph 3, even if true, has no demonstrable relationship to the question of technical qualifications. Paragraph 4 is totally unsupported, and the Board has no obligation to  ;

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search all of the NRC's records and files to find the necessary support, as is implied by the last sentence of TexPirg's motion.

In sum TexPirg's motion is untimely, is unsup-ported by any evidence and often strays beyond the bounds of TexPirg's admitted contentions. Accordingly, the motion must be denied.

Respectfully submitted, W- 144 OF COUNSEL: J Gregory C$pelahd C Thomas BMdle, Jr.

BAKER & BOTTS D rell Hancock 3000 One Shell Plaza 3000 One Shell Plaza Houston, Texas 77002 Houston, Texas 77002 LOWENSTEIN, NEWMAN, REIS, Jack R. Newman AXELRAD & TOLL Robert H. Culp 1025 Connecticut Ave., N.W. David Raskin Washington, D. C. 20036 1025 Connecticut Ave., N.W.

Washington, D. C. 20036 ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER COMPANY I

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, Waste steam plant bids .

to be taken, McConn say@

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By TOM KENNEDY tently complicated by having just ,9pe,-

Post Reporter . ,, permitted landfill operation on thewbr.

. /, , . northeast side. , ,. ,,,,a :

Mayor Jim McConn'said Monday city * ,,;BFI waited too long to give iis'the*

officials should be taking bids within the - proposals, McConn said. "We dfs6fv%r * '

next four to six months for construction ed many other people could gived.

of a steam plant on the Houston Ship reasonable bids so we are going to draw:

Channel that will, be fueled by solid up specifications and go out for bidsa-t waste. -

The mayor, st'o returned to Houston The mayor said be met with BFI cfft.:

Sunday after spending nine days in efals in Frankfurt last ThursdayT83is -

Germany touring similar steam-produc. cuss the proposal and "htformed':hqm-ing plants, told an impromptu news con. they have had over two years to ge.tals ference at City Hall that a consortium their proposals. The comments made by-which promised a multi million-dollar? : the GCWDA were nice but they were,not' plan for the plant *had taken too long to true." .

present its proposals; 4 He referred to the fact that spokesmen-The group, wtich included the Gulf- for the authority made the initial pregos :

Coast Waste Disposal- A12thorit' -y al to the council, claiming that it would-(GCWDA), Brown and Root:Inc. and ~

sa;e the city millions of dollars injaf-Browing-Ferris Industries :(BFI), out.

bage pickup costs. ,

lined its plan to City Council-tbout two ' While the consortium's hopes art over-years ago. -

,'$r; for the moment McConn said, "W4.will The plan involved transferistations in - try to proceed with a system thardiiins-the city's northwest and southwest quad.. garbage rather than landfills it." .,,2 ' .

rants where the consortium's trucks . He said Ptablic Works officials.will; would pickup garbage and take it to the.- work to draw up specifications for sdc'h 'a:

ship channel plant for conversion to - system and " optimistically" the city,will

' steam that would be sold to ship channel go out for bids within four to six raor.ths.:

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Industries. - McConn said some steam plants inlEu-The plan was to have solved the city's rope generate enough steam from solid; dire garbage pickup chrumstances, cur. waste "to heat whole districts of a city."

The Houston Post Tues., Oct. 7,1980

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

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

(Allens Creek Nuclear Generating S Station, Unit 1) S CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Applicant's Response to TexPirg's Motions for Summary Disposition Served on October 9, 1980 in the above-captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand-delivery this 2End day of (bh , 1980.

Sheldon J. Wolfe, Esq., Chairman Hon. Charles J. Dusek Atomic Safety and Licensing Mayor, City of Wallis Board Panel P. O. Box 312 U.S. Nuclear Regulatory Commission Wallis, Texas 77485 Washington, D. C. 20555 Hon. Leroy H. Grebe Dr. E. Leonard Cheatum County Judge, Austin County Route 3, Box 350A P. O. Box 99 Watkinsville, Georgia 30677 Bellville, Texas 77418 Mr. Gustave A. Linenberger Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panal U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, L'. C. 20555 Washington, D. C. 20555 Mr. Chase R. Stephens Atomic Jafety and Licensing Docketing and Service Section Appeal Board Office of the Secretary U.S. Nuclear Regulatory of the Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 Susan Plettman Richard Black David Preister Staff Counsel Texas Attorney General's Office U.S. Nuclear Regulatory P. O. Box 12548, Capitol Station Commission Austin, Texas 78711 Washington, D. C. 20555 l

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Bryan L. Baker Brenda McCorkle 1118 Montrose 6140 Darnell Houston, Texas 77019 Houston, Texas 77074 J. Morgan Bishop W. Matthew Perrened 11418 Oak Spring 4070 Merrick Houston, Texas 77043 Houston, Texas 77025 Stephen A. Doggett F. H. Potthoff P. O. Box 592 7200 Shady Villa, No. 110 Rosenberg, Texas 77471 Houston, Texas 77055 John F. Doherty Wayne E. Rentfro 4327 Alconbury P. O. Box 1335 Houston, Texas 77021 Rosenberg, Texas 77471 Carro Hinderstein William Schuessler 609 Fannin, Suite 521 5810 Darnell Houston, Texas 77002 Houston, Texas 77074 D. Marrack James M. Scott 420 Mulberry Lane 13935 Ivy Mount Bellaire, Texas 77401 Sugar Land, Texas 77478

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