ML19345G292
| ML19345G292 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 03/16/1981 |
| From: | Gutierrez J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8103180063 | |
| Download: ML19345G292 (8) | |
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March 16,1981 UNITED STATES OF A'iERICA o>,
NUCLEAR REGULATORY C0!! MISSION p
$y,p BEFORE THE ATOMIC SAFETY AND LICENSING BOAR D.
In the flatter of
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4IMIliC:
e 110'ISTON LIGHTING & POWER C0!1PANY, Docket Nos. 50-498 g AL.
50-499 (South Texas Project, Units 1 & 2)
)
NRC STAFF RESPONSE IN OPPOSITION TO Tile REQUEST BY CEU AND CCANP FOR AN ALTERATION OF THE HEARING SCHEDULE _
I.
STATEMENT OF THE CASE By Commission Order, dated September 22, 1980, the Licensing Board was directed to hold an expedited hr.aring on quality assurance / quality control (QA/QC) related matters and to issue an early and separate decision on those aspects relative to an operating license.S' This accelerated hearing was ordered in part due to certain findings reached in a NRC escalated inspection conducted between November 1979 and February 1980.S In additiun, CEU and CCANP contentions 1 and 2 raised certain questions relative to the South Texas Project QA/QC program and it was decided an-early hearing onthoseissueswouldbeappropriate.S The Comission further directed the Board to look at the broader ramifications of the investigative-findings
. y lioiiston Lighting & Power Company _ (South Texas Project, Units 1 and ?),
CLI-80-32, 12 NRC 281,-291-2 (1980).
2/ See I&E Report 50 498/79-19 and 50-499/79-19.
J CCANP and CEU contentions 1 and '2,' relative to the QA/QC program at the South Texas Project, were accepted by an unpublished Board order of August 3, 1979.
8 1 0 8 f.8 0 0 G J ;
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~ and Intervenor contentions in order to de+ ermine whether, if proven, an operatinglicenseshouldbedenied.S Pursuant to the Commission's directive to hold an expedited hearing on these issues, a prehearing conference in this case was held November 19, 1980, in an attempt to have the parties agree upon the precise issues and con-tentions to be the subject of the hearing.
This prehearing conference resulted in a Board Order, dated December 2,1980, wherein the issues of the expedited portion of the operating license proceeding were articulated and a schedule
'ished for discovery and prehearing matters. S The evidentiary was estai hearing was scheduled to commence May 4, 1981.
The scheduling section of the Board's Order contained the following caveat:
I_n view of_ _ the Commission's emphasis __ up_on an exp_ edited hearing, we expect the parties to_ adhere to th_e fore _-
g,o_ing schedule as closely as possible. Modfications will not be granted absent a strong showing of good cause.
TEmphasisSupplied).
On March 9,1981, the Staff received a pleading from Intervenor CEU requesting the Board to consider an alteration of the schedule.
On March 12, 1981, the Staff received a pleading from Intervenor CCANP joining CEU in its proposed schedule alteration.
In essence, the Intervenors request all 3
12 NRC at 291-2.
_5] Essentially, the schedule provided the following dates for prehearing matters: January 16. 1981, last date for Applicant or Staff to file discovery; February 2,1981, last date for Intervenors to file discovery; February 16, 1981, issuance of SER on QA/QC issues (By letter dated January 26, 1981, the Staff informed the Bocrd that the SER has been delayed until early April); March 2,1981, identification of witnesses and substance of their testimony by all parties; March 16, 1981, Prehearing Conference; April 1,1981, last date to depose witnesses; April 15, 1981, filing of written testimony; May 4,1981, commencement of evidentiary hearings.
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c l prehearing dates t,e postponed by three months and that the evidentiary hearing begin August 3,1981, rather than fiay 4, 1981.
For the reasons set forth hereinaf ter, the Staff is opposed to the proposed alteration of the schedule set forth ia the Board's December 2,1980, Order.
II.
DISCUSSION CEU assigns as a reason warranting a three-month postponement in the hearing schedule the 30-day hospitalization of its executive director, Mrs. Peggy Buchorn. S The question before the Board is whether the grounds asserted constitute a " strong showing of good cause" contemplated by the Board so as to justify modification of the hearing schedule.
The Staff position with respect to rescheduling is that, in the context of the procedural history of this case as set forth above, neither Intervenor has made a strong showing of good cause warranting rescheduling.S In its Petition for Leave to Intervene, CEU represented to this Board that it had "a constituency throughout the state of many thousands, and specifically somewhat over 5,000 persons in che ' area of interest', more i
l E CCANP joins in CEU's motion and assigns an additional ground justify-ing the proposed three-month slip in the hearing schedule, the recent withdrawal of its counsel Betty Wheeler, Esq.
J CEU's pleading states its Executive Director, Mrs. Peggy Buchorn, returned to her duties on February 25, 1981.
CCANP's counsel withdrew during the first week of March.
Regardless of the hardshio these two incidents cause the Intervenors, the Staff feels these obstacles can be overcome I
and the Intervenors should be able to prepare for hearings in the next eight weeks.
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. than half of whom live within a 30-mile radius of STP."
It is the Staff view that an illness to one of CEU's members, albeit a key member, does not justify postponing the entire hearing process for three months.
Similarly, the Staff feels the withdrawal of CCANP's retained counsel does not constitute a " strong showing of good cause" warranting modification of the hearing schedule.
It is an established principle of administrative law that the grant or denial of a continuance lies within the sound discretion of the hearing examiner. 4 Mezines, Stein, Gruff, Administrative Law ("Mezines"), 5 33.03.
Citing NLRB v. A.J.Siris Products Corp.,
186 F.2d 502 (4th Cir.1951).
I.
So too in NRC proceedings, it is the general rule that scheduling is a matter of licensing board discretion.
See, Public Service Company of New Hampshire, et al_. (Seabrook Station, Units 1 and 2), ALAB-295, 2 NRC 668, 670 (1975).
When confronted with a scheduling alteration request, it is the' presiding officer's responsibility to weigh the inconveniences and possible unfairness Lto others in' granting the request to postpone against the particular hardships asserted.
Mezines, supra, quoting NLRB v. Hijos de Ricardo Vela, Inc.,
475 F.2d 58, 61 (1st-Cir.1973). Similarly, licensing boards have reasoned that the convenience of litigants is entitled to recognition in scheduling matters; however, the question of convenience cannot be dispositive on
_P/ CEU's-Petition For Leave to Intervene, filed February 23, 1979.
S'. In thir regard. see, Offshore Power Srstems- (Manufacturing License for Floating Nuclear PTue~r Plants) LBP-75-67, 2 NRC 813, 816 (1975) wherein it was stated that the fact that a party has failed to retain counsel
.in. a timely isanner is not grounds for seeking a delay.
So too, the Staff reasons, the fact that a party's retained counsel withdraws in an untimely manner is not per se sufficient grounds for granting a delay. This is especially so in the accelerated procedural context of the instant case..
' questions of scheduling.
See, Potomac Electric Power Company (Douglas Point fluclear Generating Power Station, Units 1 and 2), Al.AB-277,1 NRC 539, 552 (1975); Allied-General fluclear Services (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296, 2 NRC 671, 684-85 (1975).
Within NRC proceedings, it has been held the paramount consideration in scheduling matters is the public interest, and further, the public interest is usually best served by as rapid a decision as is possible con-sistent with every party's opportunity to be heard.
Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-277, I HRC 539, 552 (1975).
In the instant case, a prompt airing and resolution of the myriad of allegations concerning the Applicant's competence to construct and operate the South Texas Project will best serve the public interest.10]
The populatio9 surrounding the Bay City, Texas, plant has a strong interest in the timely rerolution of the various issues regarding the safe construction and operation of the South Texas Project.
It is this local population which must carry on its daily activities while these safety questions remain unanswered.
Similarly, the Applicant has a strong interest in the expeditious resolution of allegations impacting upon both its competence and " corporate character."
10/ With respect to analogous cases setting forth additional-factors which a~ licensing board may employ in deciding whether to go forward with or postpone hearings, see:
Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2),
-ALAB-277, 1 NRC 539, 547 (1975); Allied General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296,- 2 NRC 671, 679-685 (1975).
-a In the Staff's view, these interests outweigh the possible prejudice which the Intervenors may suffer as a result of the Board not granting their motion 10 postpone the hearing for three months.
First, it must be noted that regardless of past hardships suffered by either CEU or CCANP, there remains approximately eight weeks before the scheduled hearing to sdequately prepare. Any past inability on the part of the Intervenors to prepare their case may be cured in the next eight weeks.
- Secondly, any development after the May hearings relative to the issues currently before this Board may be the subject of a motion to reopen the record on those issues during the more exhaustive operating license proceeding which must follow this expedited phase.E Consequently, by denying the Intervenors' current motion and ordering the hearings to proceed as scheduled, the Intervenors will suffer no irreparable. harm.
III.
CONCLUSION, in light of the above, the Staff' opposes CEU's and CCANP's motion to alter the hearing schedule and respectfully requests this Board to-deny said
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motions.
Respectfully submitted, Jay M. Gutierrez
. Counsel for NRC Staff a
Dated at Bethesda, Maryland this 16th day of March, 1981 l_1/. See, Kansas Gas &-Electric Co..(Wolfe Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320, 338 (1978).for the standards a licensing board will apply in ruling upon a motion to reopen the
-record.
UNITED STATES OF A!' ERICA flVCLEAR REGULATORY CC".HiSSION bel'0RE T'IE ATOMIC SAFi:TY AND LICENSIflG BOARD In the !!atter of IiOUSTON LIGitTING AND POWER C0:tPANY,)
50-499 (South Texas Project, Units 1 & 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN OPPOSITION TO THE REQUEST BY CEU AND CCANP FOR AN ALTERATION OF THE HEARING SCHEDULE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 16th day of March,1981:
Charles Bechhoefer, Esq., Chairman
- Brian Berwick, Esq.
Atomic Safety and Licensing Board Assistant Attorney IIeneral Panel Environmental Protection Division U.S. Nuclear Regulatory Commission P.O. Box 12548, Capitol Station Nashington, DC-20555 Austin, TX 78711 Dr. James C. Lamb III Jack _ R. tiewman, Esq.
313 Woodhaven Road Lowenstein,flewman, Reis, Chapel Hill, NC 27514 Axelrad & Toll 1025 Connecticut Avenue, N.W.
Dr. Emmeth A. Luebke*
Uashington, DC 20036 Atomic Safety and Licensing Board Pan:fl Betty Uheeler, Esq.
b.S. Nuclear Regulatory Commission Tim Hoffman, Esq.
Nashington, DC 20555 Hoffman, Steeg & Wheeler 1008 S. thdison l
!!clbert-Schwarz, Jr., Esq.
Amarillo, TX 79101 Saker and Botts One Shell Plaza Mrs. Peggy Buchorn Houston, TX 77002=
Executive Director L Citizens __for Equitable Utilities, Inc..
Route 1,-Box 1684 Brazoria, TX 77422
fKim Eastman, Co-coordinator Atomic Safety end Licensing Board Barbara A. Miller Panel
- Pat Coy U.S. fluclear Regulatory Commission Citizens Concerned About IIuclear Washington, DC 20555 Power 5106' Casa Cro Atomic Safety and Licensing Appeal San Antonio,_TX 78233 Board Panel
- U.S.
luclear Regulatory Caamission Docketing and Service Section*
Uashington, DC 20555 Office of the Secretary U.S. l!uclear. Regulatory Commission
- Washington, DC 20555
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~~yi Gutigfjlez ~~
ounsel for WC Staff
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