ML19350D239

Response in Opposition to Intervenors Citizens for Equitable Utils & Citizens Concerned About Nuclear Power Notice of Appeal Requesting 30-day Extension of Pretrial Deadlines. Public Considerations Outweigh Intervenor Inconvenience

ML19350D239
Person / Time
Site:	South Texas
Issue date:	04/09/1981
From:	Newman J HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8104140439
Download: ML19350D239 (15)

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"'-'-3 NUCLEAR REGULATORY COMMISSION @

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

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HOUSTON LIGHTING & POWER )

COMPANY, --ET AL. ) Docket Nos. 50-498 OL

) 50-499 OL (South Texas Project, )

Units 1 and 2) ) April 9, 1981 APPLICANTS' RESPONSE TO INTERVENOR NOTICE OF APPEAL On September 22, 1980, the Commission issued a Memo-randum and Order denying a request for a hearing jointly filed by Citizens for Equitable Utilities (CEU) and Citizens Concerned About Nuclear Power (CCANP). -*/

Houston Lightinc &

Power Co. (South Texas Nuclear Project, Units 1 and 2),

CLI-80-32, 12 NRC 281 (1980). Citizens' request was based on an investigation of construction practices at the STP site by the NRC's Office of Inspection and Enforcement and on an Order to Show Cause related thereto. In lieu -

of a separate hearing on the Show Cause Order, the Com-mission directed that the issues raised in t~itizens' re-quest be considered in the context of the ongoing STP i

operating license proceeding. (Id. at 291-92). Noting

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Hereinafter r ntly as " Citizens."

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the ASLB's expressed intent to hold an early hearing on OA/QC'related matters, the Commission agreed that "ex-pedition is necessary" and ordered the ASLB to consider issues raised by the Show Cause Order in addition to the related issues already before the ASLB. (Id. at 291) .

The Commission directed the ASLB to " issue an early and separate decision on this aspect of the operating license proceeding." (Id. at 292).

Shortly thereafter, the ASLB held a prehearing con-ference to consider the additional issues to be litigated pursuant to the Commission's order and to set a schedule for the next phase of the proceeding. The prehearing conference culminated in an ASLB Order issued pursuant to 10 C.F.R. S 2.752 in which the ASLB set forth a statement 2

of the issues to be litigated and a schedule for the I

completion of discovery and subsequent commencement of evidentiary hearings. (Second Prehearing Conference Ordor, December 2, 1980). The evidentiary hearing was scheduled to begin during the week of May 4, 1981. The ASLB's Second Prehearing Conference Order included the following caveat:

In view of the Commission's emphasis upon an expedited hearing, we expect the parties to adhere to the foregoing schedule as closely as possible.

Modifications will not be granted ab-sent a strong showing of good cause.

(Order at 7) .

9 In a letter dated February 27, 1981, CEU Executive Director, Ms. Buchorn asked the ASLB to reconsider its earlier schedule because she had been ill. CCANP joined in the request for a delay by letter of March 9, 1981,

• from CCANP representative Kim Eastman claiming that be-cause counsel retained by CCANP was not able to fully perform her duties over the past few months, CCANP " finds it necessary" to request that the ASLB revise its schedule.

CCANP stated that it had reviewed the schedule proposed by CEU and was in agreement with it. Citizens requested that prehearing deadlines and the commencement of evi-dentiary hearings be postponed for approximately three months.

On March 16, the Staff filed a " Response In Opposi-tion To The Request By CEU And CCANP For An Alteration Of The Hearing Schedule." Applicants opposed Citizens' Request orally at the March 17 prehearing conference.-*/

After considering the reasons underlying Citizens' re-quests, the Commission's directive for an expedited hear-ing, the schedules of all the parties, and the preparation

-*/ Applicants did not respond in writing to Ms. Buchorn's letter because that letter appeared to be Ms. Buchorn's position concerning a matter to be addressed by the ASLB at :he prehearing conference rather than a formal motion. Applicants' position on the schedule had al-ready been provided to the ASLB and the parties by letter from Applicants' counsel dated March 9, 1981.

time available, the ASLB denied Citizens' request at the prehearing conference and formalized the denial in its Third Prehearing Conference Order (April 1, 1981, at 4).

Citizens have now filed a " Notice of Appeal" re-questing a thirty-day extension on all pre-trial dead-lines as well as the date for commencing the hearing.

No attempt has been made by citizens to justify inter-locutory review of the ASLB's scheduling decision nor have Citizens provided adequate grounds for reversal of that decision. Accordingly, Citizens' request for appel-late review should be denied.

Interlocutory Review Is Not Appropriate Applicants have addressed the general standards governing interlocutory review of ASLB rulings at pages 7 through 9 of their " Response to Citizens' Notice of Appeal and Request for Directed Certification" filed simulta-neously with this Response. In addition, the Appeal Board .

has made clear that the numerous scheduling decisions which an ASLB crdinarily makes in NRC litigation are not of the kind which warrant interlocutory review absent "truly exceptional" circumstances. Public Service Co.

of New Hampshire (Seabrook Station Units 1 and 2) ,

ALAB-295, 2 NRC 668 (1975); see also, Offshore Power Systems (Manufacturing License for Floating Nuclear Plants), .

ALAB-401, 5 NRC 1180 (1977); Consumers Power Company (Midland Nuclear Plant, Units 1 and 2), ALAB-344, 4 NRC 207 (1976).

Citizens have not addressed the criteria governing this interlocutory request to direct certification.

They have not demonstrated that the ASLB's, scheduling decision is so " exceptional" as to justify interlocutory review. As Applicants demonstrate below, there is no-thing " exceptional" about this decision which would warrant appellate intervention. Accordingly, this appeal should be summarily denied.

The ASLB's Refusal to Postpone the Hearing Was a Proper Exercise of Its Discretion In NRC proceedings, scheduling is a matter generally committed to the sound discretion of the ASLB. Seabrook, ALAB-295, 2 NRC at 670. The convenience of the litigants is entitled to recognition in scheduling matters, but convenience is not dispositive. Potomac Electric Power .

Company (Douglas Point Nuclear Station, Units 1 and 2) ,

ALAB-277, 1 NRC 539, 552 (1975): Allied General Nuclear Services (Barnwell Nuclear Fuel Separations Facility),

ALAB-296, 2 NRC 671, 684-85 (1975). The paramount con-sideration is the public interest, and the public in-terest is usually best served by as rapid a decision as

possible, consistent with everyone's opportunity to be heard. Douglas Point, ALAB-277, 1 NRC at 552.

At the March 17 preheari'ng conference, Citizens claimed that they would not be able to complete adequate ,

preparation of their cases within the approximately two months then remaining before the commencement of eviden-tiary hearings. Any such claim must be viewed in light of the entire history of Citizens' participation in this proceeding. Both CCANP and CEU have been parties to this operating license proceeding for about two years. They have had nearly this entire period to undertake discovery on OA/OC related issues, to locate and obtain material witnesses, and to otherwise prepare to litigate the ex-tant issues. Any claim that the issues raised by the Commission's September 22, 1980, Memorandum and order justify considerable additional preparation time is baseless. The Commission's decision was issued six months ago, and discovery has continued for almost the entire ,

period since that decision. (ASLB order dated Auguit 1, 1980, at 2; Second Prehearing Conference Order at 5-6).

In sum, Citizens have had more than adequate time to prepare for this hearing.

CEU claims that an extension is warranted because of the illness of its representative, Ms. Buchorn. CEU does not state why another member of that organization ,

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l could not undertake some of the preparation during this period of time. CEU's petition to intervene states that that organization has "a constituency throughout the state of many thousands, and specifically somewhat over 5,000-persons in the ' area of interest' . . . ." (" Petition for Leave tm Intervene by Citizens for Equitable Utilities, Inc.",

Feb. 23, 1979, at 2). Ms. Buchorn's belated affidavit, stating that no other party can perform her functions, simply does not explain why none of the many other CEU members could not step in to assist her, nor why the period of her illness was so crucial to the completion of CEU's

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case.~ She also did not explain why the ASLB had not been notified earlier that CEU was unable to complete preparation in a timely manner.

CCANP argues that its legal counsel responsible for the intervention since November 30, 1980, has recently withdrawn, and that its only other representative with "the expertise and experience to serve as intervenor" (Mr. Sinkin) will be unavailable to participate because of law school examinations. Mr. Sinkin has been involved in this case for several years. The fact that he and

-*/ Applicants would note that during the period of her illness, Ms. Buchorn had several conversations with Applicants' attorney, Mr. Hudson, and asked him about attending a Staff-Applicant meeting during this ~

period. She did not indicate that her illness would necessitate an extension of the time for CEU's pre-trial preparation.

8-CCANP lost some preparation time because, for some reason, its chosen counsel allegedly did not undertake certain activitiss, should not be given great weight. In addi-

>n, CCANP earlier identified three other individuals

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wPo would represent CCANP in this proceeding.~ No reason is provided why these individuals cannot assist Mr. Sinkin to relieve his burden during law school ex-aminations.

An important point--which is applicable to both CEU and CCANP--is that if an organization chooses to inter-vene in an NRC proceeding, and to participate as a party, it must also discharge the responsibilities of a party.

Offshore Power Systems (Manufacturing License for Float-ing Nuclear Power Plants), LBP-75-67, 2 NRC 813, 815 (1975). A party cannot place itself in the position of being wholly dependent upon a single individual and then seek to delay the entire proceeding because of that in-dividual's incapacity or unavailability. Nor can it--

as CCANP apparently purports to have done--retain counsel of its own choosing, have no member of the organization work with counsel to assure that the organization's

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• / In an undated letter postmarked October 23, 1980, CCANP notified the parties that three individuals, Barbara Miller, Pat Coy, and Kim Eastman would in the future speak for CCANP in this proceeding.

Shortly thereafter, on November 14, Betty Wheeler and Tim Hoffman noticed their appearance as counsel .

for this organization.

1 litigation objectives are being served, and then, late in the proceeding, claim additional time because its

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cause was not fully advanced by chosen counsel. As neither CEU nor CCANP has taken adequate steps to prepere' itself for litigation since the Prehearing Conference Order of December 2, 1980, neither deserves more time to prepare.

The delay requested by Citizens is particularly in-appropriate in this proceeding. Because of scheduling conflicts among ASLB members, the ASLB was reconstituted on March 11, 1981, to enable this proceeding to be held in a timely fashion. The present membership of the ASLB

] -*/ As pointed out in footnote *** on page 6 of "Appli-

! cants' Response to Citizens' Notice of Appeal and Request for Directed Certification" filed simulta-neously with this Response, counsel for CCANP worked on this matter from November 19, 1980 until at least mid-February 1981 and did not withdraw until March 12, 1981. Discussions between counsel for Applicants and counsel for CCANP were held on various matters ~

throughout that period; and the " informal" answers to interrogatories filed by Ms. Wheeler on February 21, 1981 (see Exhibit A) were to be sworn to by Mr.

Sinkin indicating that counsel for CCANP were in some contact with Mr. Sinkin. As late as mid-February 1981, Mr. Hoffman, counsel for. CCANP, represented to Applicants' counsel that he and Ms. Wheeler were still active in the case and would continue to represent CCANP. At no time in these conversations did coun-sel for CCANP indicate that illness or other pres-sures would require an extension of time for CCANP's pre-trial preparation.

has been able to schedule hearing sessions on May 12-16, May 18-22, June 1-4, June 15-19, June 22-26 and June 29-July 2 (Third Prehearing Conference Order at 4), but has indicated it will have great difficulty scheduling ,

hearings in July or August. (Tr. 358, Tr. 721). The delay requested by Citizens will remove from the current schedule the 14 hearing days between May 2 and June 4, and will therefore assure that the hearing cannot be com-pleted by July 2. Because of the ASLB's scheduling diffi-culties, completion of the hwaring might as a result be delayed until the fall.

The public residing near the South Texas Project, the Applicants, and the public served by the Applicants, all have a strong interest in the timely resolution of the issues under consideration in the expedited portion of this operating license proceeding. In light of the alle-gations raised concerning the safety of the plant, its neighbors deserve to know, now, that the plant is being _

safely constructed. Those individuals served by the Applicants are depending upon this facility to provide a dependable supply of power and also deserve to know, now, that the plant is being safely constructed. Finally, Houston Lighting & Power Company deserves expedited treat-

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ment of those allegations which question its management competence as well as its corporate " character."-*/

The Commission has explicitly recognized the need for a rapid decision and has directed the ASLB to issue an early, separate decision on these issues after holding an expedited hearing. (12 NRC at 291-92). In sum, the public interest weighs very strongly in favor of the ASLB's hearing these issues in as prompt a manner as possible.

Conclusion The ASLB considered the inconvenience to Citizens in rendering its decision not to postpone the evidentiary hearings or otherwise extend deadlines for pretrial ac-tivities. It concluded that other important public in-terest considerations outweigh any inconvenience to the intervenors. This was an appropriate and well-reasoned exercise of the ASLB's authority. For all of the fore-going reasons, Citizens' " Notice of Appeal" should be rejected by the Appeal Board. .

HL&P filed a letter with the ASLB on October 6,

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1980, urging a rapid decision on the QA/QC issues so that its corporate name would be cleared, and.

the Applicants s :ressed this point at the pre-hearing conference on March 17, 1981. (Tr. 384).

hA _

t Respectfully submitted, h

Jack R. Newmah Maurice Axelrad

' Alvin H. Gutterman 1025 Connecticut Avenue, NW Washington, D. C. 20036 Finis E. Cowan Thomas B. Hudson, Jr.

3000 One Shell Plaza Houston, Texas 77002 Attorneys for HOUSTON LIGHTING &

POWER COMPANY, Project Manager of the South Texas Project acting herein on behalf of itself and the other Applicants, THE CITY OF SAN ANTONIO, TEXAS, acting by and through the City Public Service Board of the City of San Antonio, CENTRAL POWER AND LIGHT COMPANY and CITY OF AUSTIN, TEXAS

'OF COUNSEL:

LOWENSTEIN, NEWMAN, REIS,

& AXELRAD 1025 Connecticut Avenue, NW Washington, D. C. 20036 -

BAKER & BOTTS 3000 One Shell Plaza Houston, Texas 77002

ATTACHMENT A 2-21-81 Tom: Please excuse the informality of this note. The attached letter sets forth Lanny Sinkin's answers to the questions Mr.

Cowan asked him to follow up on during the deposition. A copy with affidavit will go out to Lanny tomorrows when I receive it, I will distribute that version to the service list. However, I wanted to get the answers to you in this form right away.

I can't type the portion of the answers with regard to the interrogatories without reference to some documents in my file which I failed to bring with me to D.C. I will have access to these materials tomorrow evening. In addition, we are still uncertain, with regard to one individual, whether employment with the Applicant or Brown & Root is still a factor. I am seeking this information this evening and, if necessary, tomorrows prior efforts to find this out, however, have not succeeded.

I have jury duty at 9: 00 Monday morning, so I will call you before then, hopefully to report the flight on which this information is being senc to you.

With regard to Item No. 6, it is very likely that I will have a specific response from Mr. Swayze by Monday; if so, I will amend the answer.

Betty Wheeler  !

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ha n. ri a:su as.

Hoffman, Steeg & Wheeler attorneys at law 1

Tim Hoffman 1008 S. Madison Susan K. Steeg Arnarillo, Texas 79101 Betty Wheeler 806/376-8903 February 21, 1981 Thomas B. Hudson, Jr.

The Madison Hotel Washington, D.C. .

HAND-DELIVERED

Dear Mr. Hudson:

This. letter is in reply to your letter of December 4, 1980, to Tim Hoffman. Because of your need to have these answers right away, I am sending these unsigned answers to you now, and will provide the answers accompanied by Lanny Sinkin's oath as soon as they are returned to me by mail from Austin.

Item No. 2 (The names of those members of CCANP who assisted Lanny Sinkin in answering the interrogatories): " Steven Sinkin assisted mes possibly one other person assisted me, but I am not certain who, if anyone, it was."

Item No. 4 (Availability of Lanny Sinkin's box of documents and records which he had accumulated over the years on the general subject of nuclear power): "After checking in my house, it appears that the materials I have collected have been dispersed P

probably many of these items are with CCANP files at Pat Coy's house. However, I will not testify as an expert witness during this proceeding.

Item No. 5 (Copies of various position papers prepared on the' subject of nuclear power or the STP): "The answer given under Item No. 4 applies to this item also." ,

Item No. 6 (Attempting to obtain the consent of Mr. Swayze and others involved in interviewing Mr. Swayze for the release of the taped conversation): "I have asked CCANP's attorney, Betty Wheeler, to attempt to obtain the consent of the persons on the tape. She has been unable, to date, to obtain the consent of anyone on the tape for its release, and in fact, has been unable even to make contact with Mr. Swayze to date."

Item No. 9 (Notes of various conversations with Mr. Swayze): "I am unable to locate any notes of conversations with Mr. Swayze.

It is possible that some of these have been stored or filed somewhere, but I am not able to locate any at this time."

? .1 Item No. 10 (Identification of documents used in answering i interrogatories or examined in connection with the intervention, f"

other than Brown & Root documents, HL&P documents, and the December 16, 1979 " bundle of documents"): "I have examined hundreds of NRC documents in the NRC public document rooms it would be impossible for me to identify these specifically without going back to the document room and searching again.

I have listened to a number of tapes. Other than the Swayze tape, which was made at my direction in the course of my activities as a pn se, attorney, these tapes are not in my possession and I am unable to identify them with specificity.

In many instances, the identity of the person on the tape was not known to me even at the time I heard the tape."

(affidavit to be provided)

Sincerely,

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Betty Wheeler

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