ML19345B869

Memorandum in Support of Applicant Request to Set Date for Commencement of Health & Safety Hearings.Certificate of Svc Encl

ML19345B869
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	11/26/1980
From:	Copeland J, Newman J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:
Shared Package
ML19345B864	List: ML19345B863 ML19345B869
References
NUDOCS 8012020634
Download: ML19345B869 (1)

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Memorandum In Supportiof-Applicant's Request.to SetLa Date forfCommencement'

-of - Health and Saf ety Hearings I.

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14,'1980, Applicant submitted at the direction

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-On November of the Board,:a " Report'forJDecember 2, 1980 Prehearing Conference."

-In that " Report", Applicant requested ~the Board "as a matter of extreme'importance" to establish at least a tentative date ,

for the filing of health and safety testimony ~and the commence-

' ment of-related hearings, and stated that itLintended to. request-i the Board at the. upcoming prehearing conference to set this i

date within approximately 30 days of the completion of environ-mental hearings. Applicant explained that lacking some indica-tion of the' time when health and safety. hearings would commence,. ,

planning for the'Allens Creek project would be' severely hampered.

Because this matter is of great importance to the future of.

the Allens Creek' project, Applicant has, prepared this Memorandum i setting forth-in greater detail.the reasons why the Board I should grant Applicant's request.

II.

I In.its Order of October-3, 1980, the Beard stated that .

' it would consider a schedule-for the health and safety hearings after the conclusion offthe environmental-phase of this pro-i (Board Order, p. 5, n.5) If, as it indicated, the ceedi ng .

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Board intends.to withhold its' decision on'the scheduling of" health'and safety; hearings until after the environmental i- 8012020fyg.

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hearings, Applicant would, for two reasons, be severely

-prejudiced. First, Applicant'would be unable to predict until several months.into 1981,.when health and safety hearings could'be expected to be completed. 'This delay would result in a long period of uncertainty during which it would be impossible to anticipate when a construction permit might be issued. Thus, important~ decisions regarding the means by which Applicant will meet forecasted energy. demand would, at an important time, be made extremely difficult.-

Secondly, as the history of this proceeding demonstrates, less the Board adopts a firm position, directing intervenors in advance that they must move forward.with dispatch and within the confines of a pre-established schedule, interminable requests for extensions of time can be expected. A,plicant s is concerned that nealth and safety hearings will be' delayed for several months after the completion of environmental hearings unless intervenors are put on notice, at this time, that they will be required to submit their prefiled testimony by or around a datercertain.

The Allens Creek plant is needed to meet an. acute power shortage by 1989, or 1990 at the latest. In light of the time required to-construct a nuclear facility, the date is fast approaching when Applicant must assess the likelihood that the ACNGS will be available to provide power in the time-frame

! in which it is needed. Applicant cannot do so and will be o

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. unable to do so for several months into 1981 unless some reason-

- able basis exists for predicting a likely date.by which the many intervenor health and safety issues will be heard.

Applicant believes that its request is reasonable. By establishing at least tentative dates at this time, all parties can proceed in the expectation that necessary preparation for the relevant hearings must be completed on or around a date

-certain. This added certainty will inure to the beneft of all parties who seek to allocate resources over the next several months.

III.

Applicant also seeks a ruling from the Board that health and safety bearings will commence shortly after the completion of environmental hearings. The amount of time that has elapsed prior to the presentation of substantive testimony in this proceeding - now nearly three years - is exceedingly long. Appli-cant believes that relevant NRC case law, viewed in light of the protracted history of this proceeding, supports its request that a date should be set to hear health and safety contentions as soon after the completion of environmental hearings as is reasonably possible.

An initial block of health and safety contentions was admitted into this proceeding almost two years ago and all discovery on these issues has been complete for 11 months.

Another block of health and safety contentions was admitted

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' in March, 1980, approximately 9 months.ago, and almost all

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discovery on these issues has.been completed for 5 months.

Therefore, assuming that environmental hearings will not be con-

' cluded until March of-1981, the-great majority of health and safety contentions will presumably have been ripe for adjudication

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for over.8 months time.

The Appeal: Board has stated that in NRC proceedings the

- public interest is normally best served.by as rapid a decision

'- as is possible, consistent with the parties' opportunity to be. heard. Allied. General Nuclear Services (Barnwell Facility),

ALAB-286, 2 NRC 671, 684-85 (1975); Potomac Electric-Power

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Co. (Douglas Point) , ALAB-277, 1 NRC 533 (1975).

lengthy time periods; discussed above attest to the fact that Applicant is not asking the Board to ignore the rights of inter-l venors by proceeding to hearing in such a short period of time.

as to deny a meaningful opportunity to be heard. Even giving

'" appropriate recognition" to the " difficulties under which an intervenor may labor in endeavoring to prepare for trial,"

Southern California Edison' Company (San Onofre Nuclear Generating

• / Under the' Administrative Procedure Act,. federal agencies have a duty to' consider and rule upon applications without unreasonable' delays. -5 U.S.C. 5155(b); Nader v. F.C.C.

520 F.2d 182,.206 (D.C.Cir. 1975). To accomplish this objective agencies have been directed by the courts to

" exert the. greatest resourceful, imaginative ingenuity

in-devising-procedures-which . . . will permit'the-regulatory. process to function properly with~ reasonable-dispatch. F.T.C. v.-J. Weingarten, Inc., 336 F.2d 687,-

l 691-92 (5th Cir. 1964), cert..cen., 380 U.S. 908 (1965 )-;

Hill v. F.P.{. , 3 35 l F. 2dT (En Cir. - 1964) .

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Station), ALAB-212,!7EAEC 986, 992-93 (1974), the long prehear-

' ing period in this case forecloses an argument that intervenors

. are being rushed to' hearing. Intervention in NRC proceedings carries with it,onot only the rights afforded by the NRC's rules;of practice, but.the' obligation to perform the duties t

imposed by those rules "in a diligent, timely fashion." offshore.

Power Systems'(Floating Nuclear _ Plants), LBP-75-67, 2 NRC 813, 815 (1975).- Thus,.intervenors in this-proceeding.should recognize that, having' submitted a large number of contentions, they cannot wait until the last minute to begin preparing their cases.

Moreover, the Appeal Board in San Onofre recognized that >

a where, as here, it_ appears-that i tervenors will bas'.their e

. case only on cross-examination, Licensing Boards may be justified in providing'even less time'to prepare for hearing. (7 AEC at 993, n.5) It is significant to note that, although some

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health and safety contentions were admitted almost two-years ago, not one-expert witness has been identified by~the parties forwarding these contentions. */

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'A review of information'obtained during discovery clearly.

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indicates that none'of the intervenori qualifies as an=

5 expert witness on the highly techri :al health and safety issues.in this proceeding. -Applicant would: urge the .t Board.at the upcoming prehearing conference or as soon thereafter as possible, to-inquire of the intervenors whether any;of them propose'to'act as expert witnesses.

< Such prompt consideration would benefit the_ timely con- '

sideration of this construction permit application.

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Undoubtedly, proceedings to consider-an application to con-struct a' nuclear plant are complex-and require the consideration-of a large number of issues-covering a wide range of important matters. 'However, in this proceeding Applicant has waited

'for nearly three years as a series of procedural obstacles has prevented any adjudication of~the' merits of its application.

By setting the requested date for hearing-the. numerous' health and safety issues in this proceeding, the Board can now help ensure that the parties will be ready to proceed on-a timely basis with substantive litigation of health and safety matters.

Respectfully submitted, OF COUNSEL: /

j b0N )Om#n LOWENSTEIN, NEWMAN, REIS, / lJackR. Newmar..

AXELRAD & TOLL jRobert H. Culp 1025 Connecticut Ave., N.W. / Da vid B . Raskin Washington, D.C. 20036 -' 1025 Connecticut Ave., N.W.

Washington, D.C. 20036

BAKER & ~ BOTTS J. Gregory Copeland 3000 One Shell plaza C. Thomas Biddle, Jr.

Houston, Texas '77002 Darrell Hancock 3000 One Shell Plaza Houston, Texas .77002 f

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

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

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(Allens Creek Nuclear Generating )

Station, Unit 1) )

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CERTIFICATE OF SERVICE I hereby certify that copies of Memorandum In Support of Applicant's Request to Set a Date for Commencement of Health and Safety Hearings and the attached transmittal letter to the Board were served on the following by deposit in the United States mail, postage prepaid, or by hand delivery, this 26th day of November, 1980:

Sheldon J. Wolfe, Esq., Chairman Susan Plettman, Esq.

Atomic Safety and Licensing David Preister, Esq.

Board Panel ~ State Attorney General's Office U.S. Nuclear Regulatory Commission P.O. Box 12548 Washington, DC 20555 Austin, Texas 78711 Dr. E. Leonard Cheatum Route 3, Box 350A Watkinsville, Georgia 30677 Hon. Charles J. Dusek Mayor, City of Wallis Mr. Gustave-A. Linenberger P. O. Box 312 Atomic Safety and Licensing Wallis, Texas 77485 Board Panel U.S. Nuclear Regulatory Commission Hon. Leroy H. Grebe Washington, DC 20555 County Judge, Austin County P. O. Box 99 Chase R. Stephens Bellville, Texas 77418 Docketing and Service Section Office of the Secretary of Atomic Safety and Licensing the Commission Eoard Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC' 20555 Washington, DC 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555' l

James M. Scott, Jr.

Richard Black, Esq. 13935 Ivy Mount U.S. Nuclear Regulatory Sugar Land, Texas 77478 Commission Washington, DC 20555 William Schuessler 5810 Darnell John F. Doherty Houston, Texas 77074 4327 Alconbury Street Houston, Texas 77021 Stephen A. Doggett, Esq.

P. O. Box 592 Rosenberg, Texas 77471 Att: Clarence Johnson Bryan L. Baker Executive Director 1923 Hawthorne Box 237 U.S. Houston, Texas 77098 University of Houston Houston, Texas 7704 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 Brenda McCorkle 6140 Darnell Houston, Texas 77074 F. H. Potthoff, III 7200 Shady Villa, #110 Houston, Texas 77080 Wayne E. Rentfro P. O. Box 1335 Rosenberg, Texas 77471 1

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