ML20003A457

Response Opposing Intervenor Doherty 810119 Suppl Response to Applicant Motion for Summary Disposition of Contention 5. No Good Cause for Late Filing,Info Has Been Available Since Sept 1980.Certificate of Svc Encl

ML20003A457
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	01/28/1981
From:	Biddle C, Newman J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8102040033
Download: ML20003A457 (7)

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January 28', 1981 j s\

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UNITED STATES OF AMERICA /N -. 3 NUCLEAR REGULATORY COMMISSION h E 2a !?&l ) H

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD A. Se 4

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HOUSTON LIGHTING & POWER S COMPANY S Docket No. 50-466 5

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S f D, g ,~ . ~,M Z APPLICANT'S RESPONSE TO "INTERVENOR DOHER'"

SUPPLEMENTAL RESPONSE TO APPLICANT'S RESPkSE o.s.qyjls',S .]/

FOR SU M RY DISPOSITION FOR HIS CONTENTIONT9 /

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On January 19, 1981, Intervenor Doherty filed a

" Supplemental Response" to Applicant's Motion for Summary Disposition on Intervenor Doherty's Contention No. 5 filed five and one-half months earlier. Nowhere in this pleading does Mr.

Doherty explain his basis for filing a " Supplemental Response" over two months past the filing date for responses to motions .

for su= mary disposition set by the Board. Indeed, this pleading is without an accompanying motion for leave to file a late response. It is clear from past events and the rulings of this Board that Mr. Doherty has no basis for-filing such a tardy pleading and, therefore, his " Supplemental Response" should not be entertained.

In order to appreciate what Mr. Doherty is attempting to do with this late-filed " Supplemental Response," it is necessary ro retrace each step by Mr. Doherty. On October 25, 1980, Mr.

Dcherty filed his third motion asking for an indefinire extension G10 2 04 009 G, SO5[/

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of time to file " additional reply material" to motions for summary disposition on his Contention Nos. 5, 15, 33 and 45, based upon when the Reed Report became available "either through administrative action or subpoena." Five days later, on October 30, 1980, the Board ruled on Mr. Doherty's second request for an extension of time to file responses concerning these same con-tentions-(filed on October 22, 1980). In light of Applicant's October 10, 1980, response stating that sections of the Reed Report requested by Mr. Doherty had been available for Mr.

Doherty's inspection since September 30, 1980, the Board ruled that Mr. Doherty should inform the Board whether or not he intended to withdraw his motion for a subpoena. .The Board further ruled that "no further extension of time would be allowed" beyond the eleven day extension for filing responses granted Mr.

Doherty in that order.

Applicant's responses to both of Mr. Doherty's motions for extensions of time (filed October 27, and 30, 1980, respec-tively) explain fully that whatever handicap--and, hence, justifi-cation for an extension of time--Mr. Doherty attributes to the

" unavailability" of " Reed Report" materials is due to his own lack of diligence. What is now Mr. Doherty's fourth attempt, in this " Supplemental Response," to create an excuse for failing to.

take timely action must be considered in the context of the sequence of events surrounding the production of the Reed Report materials.

As early as June 27, 1980, Applicant made available to Intervenor Doherty, under a mutually agreed-upon protective order, materials from the Reed Report as provided in a settle-ment agreement. He did not inspect these materials until July 24, 1980. In the interim, Mr. Doherty tried to circumvent the agreed-upon settlement by filing a second motion for a subpoena.~1/

Mr. Doherty withdrew this motion by letter of July 22, 1980.

Ultimately, Intervenor Doherty submitted thirty-seven informal interrogatories concerning these materials to Applicant's counsel. Although the great majority of these interrogatories were unrelated to admitted contentions, Applicant forwarded complete answers, compiled by General Electric Company, within ten days.

Nearly a month later, Mr. Doherty requested that eight

" sections" of the Reed Report be provided him. Again, the majority of Mr. Doherty's requests were completely outside the scope of admitted contentions and all of the requests were .

beyond the negotiated settlement agreement. Nevertheless, Applicant secured all of the verbatim extracts from the Reed Report requested by Mr. Doherty, consisting of some fifty-three pages from that report. Mr. Doherty was advised by letter of l

September 30, 1980, that these portions of the Reed Report were 1 -1/ This " motion," like the first and subsequent " motions,"

as defective in form and substance and plainly insufficient to support the issuance of a subpoena. .

available for his inspection.-2/

Mr. Doherty made no attempt whatsoever to inspect the reproductions from the Reed Report requested by him until nearly a month and a half later. On November 15, 1980--the day after the filing date for responses to Applicant's motions for summary disposition--Mr. Doherty gave his first indication, by telephone, that he intended to inspect the excerpts that had been produced for him. Again, in the interim, Mr. Doherty ignored Applicant's attempts to informally accommodate his desire to review the material, and filed a third motion for a subpoena. This motion was also withdrawn by Mr. Doherty at the prehearing conference of December 2, 1980.

Now, in this "S'upplemental Response," Mr. Doherty apparently presumes that he has good cause for late filing of allegedly pertinent "information" gathered from his inspection of the Reed Report excerpts on January 5, 1981.-3/ Applicant 2/ Mr. Doherty was requested to concur in a perfunctory amendment of the prior protective order to cover the production of these additional materials. Mr. Doherty did not do so until November 21, 1980. The amendment was issued in a Board order of December 5, 1980.

3/ Applicant feels obliged to point out to the Board that Mr.

Doherty's " Supplemental Response" attempts to misconstrue the quotations from the Reed Report to imply that "no full-scale tests have been done on the Mark-III system" as recommended or required. (Supplemental Response at 2). This conclusion is inconsistent with the language of the quotations themselves and directly contradicted by the statements of Applicant's affiant, Peter Stancavage.

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submits that Mr. Doherty's more than adgequate opportunity to use the material produced for his inspection has long passed. He dces not have this Board's leave to "Fupplement" his responses and certainly no good cause exists in light of his leisurely approach to this matter. Applicant has cooperated fully with Mr. Doherty's discovery of the Reed Peport; Mr. Doherty cannot now profit from his failure to follow through in the oppo: tunities presented to him. If he is allowed to continuously " update" his pleadings without ,

good cause, this proceeding simply cannot be conducted in an orderly and expeditious manner.

For all the foregoing reasons, "Intervenor Doherty's Supplemental Response to Applicant's Motion for Summary Dispo-sition for His Contention 5" should be rejected.

Respectfully submitted, W 7.5 b -^ '

OF COUNSEL: J. Gregory Copeland C. Thomas Biddle, Jr.

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

Washington, D.C. 20036 ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & FOWER COMPANY UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of S S

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

(Allens Creek Nuclear S Generating Station, Unit S No. 1) S CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Applicant's Response to "Intervenor Doherty's Supplemental Response to Applicant's Response for Summary Disposition for His Contention 5" in the above-captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by' hand-delivery this 28th day of January, 1981. ,

Mr. Sheldon J. Wolfe, Chairman Ms. Susan Plettman Atomic Safety and Licensing Mr. David'Preister Board Panel Texas Attorney General's U. S. Nuclear Regulatory _ Office Commission P. O. Box 12548-Washington, D. C. 20555 Capitol Station Austin, Texas 78711 Dr. E. Leonard Cheatum Route 3, ' Bcnc 350A Honorable Charles J. Dusek Watkinsville, Gecrgia 30677 Mayor, City of Wallis P.'O. Box 312 Mr.-Gustave A. Linenberger Wallis, Texas 77485 Atomic Safety and Licensing Board Panel Honorable Leroy H. Grebe U. S. Nuclear Regulatory Commission County Judge, Austin County Washington,.D. C. 20555 P. O. Box 99 Bellville, Texas 77418

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Mr. Bryan L. Baker Mr. D. Marrack 1118 Montrose 420 Mulberry Lane Houston, Texas 77019 Bellaire, Texas 77401 Mr. Stephen A. Doggett Mr. J. Morgan Bishop P. O. Box 592 11418 Oak Spring Rosenberg, Texas 77471 Houston, Texas 77043 Mr. W. Matthew Perrenod Mr. John F. Doherty 4070 Merrick 4327 Alconbury Houston, Texas 77025 Houston, Texas 77021 Mr. James M. Scott Ms. Brenda McCorkle 13935 Ivy Mount 6140 Darnell Sugar Land, Texas 77478 Houston, Texas 77074 Mr. Richard Black Mr. Wayne E. Rentfro Staff Counsel P. O. Box 1335 U. S. Nuclear Regulatory Rosenberg, Texas 77471 Commission Washington, D. C. 20555 Ms. Carro Hinderstein 609 Fannin, Suite 521 Mr. William Schuessler Houston, Texas 77002 5810 Darnell Houston, Texas 77074 Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D.C. 20555

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C. T. Biddle,,Jr. ()

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