ML19341C263

Reply Opposing Intervenor B Bursey 810223 Petition to Be Releived from ASLB 801230 Order.Order Sanction Should Be Enforced & Intervenor Precluded from Presenting Witnesses, Exhibits or Other Direct Evidence on Six Contentions

ML19341C263
Person / Time
Site:	Summer
Issue date:	02/26/1981
From:	Knotts J DEBEVOISE & LIBERMAN, SOUTH CAROLINA ELECTRIC & GAS CO., SOUTH CAROLINA PUBLIC SERVICE AUTHORITY (SANTEE COOPE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19341C264	List: ML19341C263 ML19341C267
References
ISSUANCES-OL, NUDOCS 8103020567
Download: ML19341C263 (5)

Text

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FEB 26198 t-UNITED STATES OF AMERICA 6

gtteeMIt"*Uk NUCLEAR REGULATORY COMMISSION 00t M 88 %c.S*"C, v D

Bran BEFORE THE ATOMIC SAFETY AND LICENSING BOAR D e L

In the Matter of:

SOUTH CAROLINA ELECTRIC & GAS )

COMPANY and ) Docket No. 5'-395-OL

)

SOUTH CAROLINA PUBLIC SERVICE )

AUTHORITY )

)

(Virgil C. Summer Nuclear Station, )

Unit 1 )

4 APPLICANTS' REPLY TO INTERVENOR'S PETITION TO BE RELIEVED FROM COMPLIANCE WITH AND SANCTION OF BOARD ORDER By e document dated February 23, 1981, Intervenor Brett Bursey has petitioned the Board to accept such document (apparently in lieu of timely provision of the list of witnesses, and in lieu.of any summaries of testimony and list of documents relied upon or to be offered as exhibits, all of which were required by the Board's December 30, 1980 J

order),and, contra.y to the sanction provided by that order, to allow his "affirnative case to proceed".

Mr. Bursey indicates that he did not anticipate that (in the event of noncompliance) the existing list of wit-1 nesses would be " erased". However, as is quite clearly

. revealed both'in the text of the Board's December 30, 1980 order-(at pages 2 and 3) and in the transcript of the November 25, 1980 prehearing cdnference (pages 288, 291, S

292, 293 and especially 294 and-295) Mr. Bursey was required' to go_through the prior materials and come up with a summary  !!

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of his affirmative case and all of the witnesses (as well as documents relied upon and exhibits - Tr. 296). At transcript 297, Mr. Bursey indicated his understanding that to the extent he did not include matters in the summary he would not be permitted to offer those matters affirmatively, except for new issues arising out of Etaff documents.

Mr. Bursey also refers to unarticipated personal difficulties including an automobile accident. If Mr. Bursey had good cause.for some reasonable extension of time he should have filed for such before the passing of the January 31 date.

Of course, the recital of alleged " personal difficulties" is not an adequate showing of good cause and is noh in any event offered in timely fashion. Further, Mr. Bursey f.ndicates that he chose to "go with" the list of witnesses on record.

That choice was not meaningful, in view of the wishful nature of the earlier listing of witnesses. Moreover, that

" choice" is immediately contradicted in the February 23 document by a largely new and different list of witnesses.

Most importantly, a choice not to comply and instead rely on the previous list was not Mr. Bursey's to make. He was required to come up with summaries and documents for a fresh, "real" and " final" witness list.

Next, Mr. Bursey alleges that the undersigned had agreed to work with him~to review the witnesses and documents on file but that he was never provided with the agreed upon information.

4 Compare Tr. 296 where Applicants confirmed their agreement to assist with documents the Intervenor said he was missing (enclosures to correspondence had t .en discussed). The Board has already received copies of the correspondence which followed upon the November 24, 1980 meeting of parties and the November 25, 1980 prehearing. conference, but for convenient reference, copies are attached hereto. As will be seen frem this correspondence, Applicants have fulfilled all undertakings to make information available tc Mr. Bursey and to make it easy for him to request any missing documents. Applicants did not agree to assist Mr. Bursey in the preparation of his summaries, and we never heard of such a notion until last week. Such act!rity would, of course, be a wholly inapprcpriate and unethical one for opposing counsel. It should be noted that, despite our offers to supply information, make correspon-dence available for inspection, and assist in identifying and supplying missing documents in correspondence between SCE&G and NRC, Applicants were not contacted in this regard by Mr. Bursey at any time between November 26,.1980 and the end of January, 1981.

Having previously agreed at the prehearing conference to supply summaries, Mr. Bursey continues to argue that such is unnecessary and/or to' pretend misunderstanding. He argues

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that his contentions are siraple and clearly stated. As was pointed out at the prehearing conference, his failure, despite a valid order, to provide needed information regarding the nature of his direct case deprives Applicants of their right to know what they must meet at trial Mr. Bursey's failure or defiance is an abuse of the administrative process and must not be tolerated.

The list of witnesses and the one-line indication (in those instances where even that much is given) of the topic of the testimony in any event falls woefully short of the summaries intervenor was required to provide. Moreover, not one document to be relied upon by a witness or to be offered as an exhibit is listed.

In these circumstances, good cause for relief from the Board's order of December 30, 1980 has not been shown, the instant filing is not an adequate substitute for the summaries and lists of documents required, and the sanction foretold by that order should be affirmed, i.e., intervenor is precluded from presenting witnesses or exhibits or any other direct evidence on the six contentions heretofore admitted.1/

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Further sanctions may well be in order and will be made the subject of a motion which will afford the opportunity for intervenor's reply.

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We would request that the Board take up this subject during the February 27th conference call as it ebviously affects

. schedule matters.

Respectfully submitted, o b J eph B. Knotts, Jr.

DEBEVOISE & LIBERMAN Date: February 26, 1981 Counsel for Applicants /Cwners South Carolina Electric & Gas Company South Carolina Public Service Authority

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