ML20004E232
| ML20004E232 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 06/02/1981 |
| From: | Gallo J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20004E233 | List: |
| References | |
| ISSUANCES-OLA, NUDOCS 8106110380 | |
| Download: ML20004E232 (10) | |
Text
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" '" "* %.f3EFORE THE ATOMIC SAFETY AND LICENSING BOARD
,(N 3,9 M'
W3 Matter of
)
) Docket No. 50-155-OLA CONSUMERS POWER COMPANY
) (Spent Fuel Pool
)
Expansion)
(Big Rock Point Nuclear Plant)
)
ANSWER OF CONSUMERS POWER COMPANY yjG)
TO REQUEST FOR CONTINUANCE BY INTERVENORS --
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CHRISTA-MARIA, MILLS AND SIER
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On May 18, 1981, Intervenors Christa-Maria, MiIN--
and Bier requested that all steps in this proceeding be delayed until July 21, 1981, to accommodate cae foreign travel plans of their counsel.
The effect of this request for a continuance, if granted, would be a nine-week delay in the proceeding.
For reasons set forth below, Consumers Power Company
(" Licensee") opposes the grant of the motion.
Background
Prior to the special prehearing conference held in this proceeding on December 5, 1979, all parties, including Intervenors, agreed upon a ten-step schedule culminating with testimony being filed by all parties 134 days after the issuance of the basic NRC Staff documents, viz., the Safety Evaluation Report ( "SER" ) and the Environmental Impact Assessment ("EIA").
This schedule was embodied in the Atomic Safety and Licensing Board's ("ASLB") " Order Following 8106110 g d
Sga6*I
l
. Special Prehearing Conference," pp. 3 4-35, dated J anuary 17, 1980.
Because the NRC Staff issued the SER and EIA on May 15, 1981, the schedule automatically became operative, and indeed, the time for the completion of the first step following the issuance of the SER and EIA is running.
The following procedural steps are provided for in the schedule approved by the Licensing Board, and they must be completed by the dates shown:
1.
Roquests for additional discovery June 4, 1981 after issuance of the SER and EIA 2.
Replies to discovery *equests under June 24, 1981
- 1. above.
3.
Filing of any new contentions July 1, 1981 4.
Responses to new contentions July 8, 1981 l
5.
Motions for summary disposition July 28, 1981 i
i 6.
Replies to summary disposition Aug. 17,1981 motions l
7.
Licensing Board ruling o.-
otions Sept.
8, 1981 8.
Written testimony filed Sept. 28, 1981 l
Intervenors' motion, if granted, would slip the foregoing dates as follows:
1.
Roquests for additional discovery Aug. 11, 1981 after issuance of the 5ER and EIA j
l i
2.
Replies to discovery requests under Aug. 31, 1981 1.
above.
3.
Filing of any new contentions Sept.
8, 1981 4.
Responses to new contentions Sept. 15, 1981 l
1
. 5.
Motions for summary disposition Oct.
5, 1981 6.
Replies to summary disposition Oct. 26, 1981 motions 7.
Licensing Board ruling on motions Nov. 16, 1981 S.
Written testimony filed Dec.
7, 1981 Agreement on the remaining hearing schedule has neither been agreed upon by the parties nor established by order of the Licensing Board.
However, based on previous experience, Licensee would expect the schedule to be estab-lished approximately as follows:
1.
Evidentiary hearings to commence 14 days after the filing of written testimony.
2.
Hearings to consume 10 hearing days.
3.
Proposed findings of fact and conclusions of law to be filed by all parties within 50 days of the close of the hearing record (10 C.F.R. 2.754).
4.
Issuance of Licensing Board's decision within 35 days of last filinguof findings and concl.sions (10 C.F.R. Part 2, Appendix A, Section VI, paragraph (d)).
Applying these assumptions to the extended schedule requested by Intervenors would eventuate in an initial decision date of approximately April 9, 1982 -- assuming the hearings actually commence on December 28, 1981, in the midst of the holiday season.
If the present schedule is maintained, an initial decision would be expected by about January 21, 1982.
The Rights of the Licensee Would Be Prejudiced Bv the Grant of the Recuest 'for Continuance It is true, as Intervenors point out, that the grant of the request for a continuance would not, of itself, mean that the Big Rock Point facility would be forced to shut down.
However, that does not demonstrate that Licensee would not be prejudiced by such a continuance.
As the attached affidavit of Carl Larsen indicates, the plant will be operating without full core discharge capability after the next scheduled cutage for refueling and plant modifica-tion unless one or more of the new racks is installed during the time period of the outage.
Licensee, in the present circumstances, must shut down by January 1, 1982, to imple-ment modifications required by NRC as a result of the lessons learned from the accident at Three Mile Island.
Therefore, as Mr. Larsen's affidavit states, the necessary refueling, previously scheduled to commence on February,1, 1982, is also expected to commence on January 1, 1982.
It is anti-cipated that both activities would be completed by March 1, 1982.
Thus, authority to install the additional racks must be received from NRC no later than mid-February 1982, if Licensee is to avoid either the undue risk of operation without full core discharge capability or the cost penalties associated -with an extraordinary outage to install the racks if and when the authority to do so~ is thereaf ter received
-from NRC.
~. _ _ ~._ -
. The extended hearing schedu'le requested by Inter-venous, as analyzed and discussed above, would clearly extend beyond mid-February 1982 and thereby place Licensee in the dilemma of choosing between operating without full core discharge capability or shutdcwn to install the new racks.
Under the present schedule, it appears that a decision would issue within the timeframe of the presently planned i
refueling / plant modification outage, namely, January 21, 1982; and if the decision were favorable, the NRC Staff could issue the necessary license amendment before mid-February.
Licensee is Entitled *to Timely Consideration of Its Application For License Amendment It is undisputed that Licensee i.c entitled to due course consideration of its application.
An atomic safety and licensing board has the duty to conduct proceedings in a timely fashion and to take appropriate action to avoid d61ay in those proceedings.1/ The expeditious conduct of 1/
10 C.F.R. 5 2.718 imposes on presiding officers "the duty to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order."
9 !
proceedings is a general policy goal of the Nuclear Regula-tory Commission.EI A licensing board's duty to conduct pro,ceedings expeditiously was reemphasized recently in the Commission's
" Statement of Policy on Conduct of Licensing Proceedings",
issued on May 20, 1981. 1/
The Commission stated that
- [i]ndividual adjudicatory boards are encouraged to expedite the hearing process by using those management methods already contained in Part 2 of the Commission's Rules and Regulations."
Statement at 2.
More specifically, the Commission noted:
~
Fairness to all involved in NRC's adjudicatory procedures requi.res that every participant fulfill the obliga-tions imposed by and in accordance with applicable law and Commission regulations.
While a board should endeavor to conduct the proceeding
-2/
Statement of Geaeral Policy and Procedure, 10 C.F.R. Part 2, Appendjx A: "The Statement reflects the Com-mission's intent that such proceedings be conducted expeditiously and its concern that its procedures maintain sufficient flexibility to accommodate that objective.
This position is founded upon the recog-nition that fairness to all the parties in such cases and the obligation of administrative agencies to con-duct their functions with efficiency and economy, require that Commission adjudications be conducted without unnecessary delays."
3/
The Statement of Policy appears to have been prompted by perceived delays to certain pending operating license applications; however, it applies to the " conduct of all phases of the hearing process. "
See page 2 of Statement of Policy attached to Mr. Chase R. Stephens' letter of May 21, 1981.
.= -
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-ew a
. in a manner that takes account of the special circumstances faced by any participant, the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations.
Statement at 3.
In particular, with respect to granting extensions of time, the Commission stated:
The Commission expects licensing boards to set and adhere to reasonable schedules for proceedings.
The Boards are advised to satisfy themselves that the 10 C.F.R. S 2.711 " good cause" standard for adjusting times fixed by the Board or prescribed by Part 2 has actually been met before granting an extension of time.
Given these unequivocal policy statements from the NRC Commissioners, Intervenors' request for a continuance can only be granted upon a stre. g showing of " good cause. "
Intervenors Have Failed to Demonstrate " Good Cause Intervenors argue that the requested continuance shouls be granted because it is " miniscule" compared to the fif teen-month delay (from February 1980 to May 1981) already occasioned in the issuance of the SER and EIA by the Staff.
In the first place, an extension of nine weeks cannot be considered " miniscule."
In Florida Power and_ Light Ccmpany (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-553, 10 NRC 12 (1979), the Appeal Board characterized a ninety-day
. extension for the filing of testimony requested by the Staff as " lengthy".
Although the Board there granted the exten-sion because it hesitated to second-guess the Staff's assertion i
that its allocation of resources made compliance with the deadline impossible, the Board called the Commission's attention to its ruling, so that the Commission could take
[
appropriate action if it saw fit.
In any event, the NRC Staf f enjoys tts luxury of excusing their dilatory acts under the penumbra of manpower shortages and the need for additional information.
As the Appeal Board emphasized in Offshore Power Systems (Floating Nuclear Power Plants),
AIAB-489, 8 NRC 194, 206 (1978), the Staff has an indepen-dent mandate to prepare documents, suchas[heSERandEIA, up to its cwn standards of adequacy.
In the second place, Staff delay in preparing the SER and EIA in no way justifies the untoward delay requested by Intervenors here.
Indeed, the fact that a delay of fifteen months has already supervened in this proceeding cuts against Intervenors' position, not in favor of it.
The lengthy delay that has already occurred in the present proceeding indicates that this Licensing Board should scrutinize carefully the necessity of any requests for f urther lengthy extensions.
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. Furthermore, the former counsel for Int **venors Christa-Maria, Mills, and Bier committed to the present discovery schedule after lengthy consultation with the Staff and counsel for Licensee.4/ It was on the basis of this commitment of the parties that the Licensing Board issued its Crder Following Special Prehearing Conference of January 17, 1980, setting deadlines for the successive stages of the prehearing process.
Given this fact, among the other reasons cited by Licensee, the convenience of Intervenors' present counsel should not be grounds for invalidating the schedule adopted in the Board's Order.
In a filing received on May 28, 1981, Intervenors allege, as an additional reason for granting the ' requested continuance, that they have received "several thousand pages" of Licensee's responses to discovery.
In the first-place, Licensee's responses are comparatively brief, though it is true that attached documents providing a basis for some of the responses are lengthy.
More importantly, the most important and relevai.t information was submitted by-Licensee long ago in its responses to Intervenors' first set of interrogatories; the present set merely represents follow-up questions of limited importance.
4/
See transcript of Special Prehearing Conferer.ce, 5 December 1979, at 221-23.
-10 In the second place, Intervenors' filing constitutes a transparent attempt to provide an after-the-fact justifica-tion for the absence of its counsel, which has already been unilaterally announced.
Intervenors' filing makes clear that Intervenors themselves and others working with them will undertake the review of the SER and EIA.
Licensee submits that if Intervenors are qualified to review these documents without the assistance of counsel, they are i
squally qualified to file new discovery requests and formu-late new contentions in his absence, thereby obviating in substantial part, if not totvily, the need for the requested t
continuance.
Licensee submits that Intervenors have not met the " good cause" standard prescribed by 10 C.F.R. 5 2.711 I
for extensions of time fixed by accmic safety and licensing
- boards, i
conclusion Intervenors' motion for a continuance should be denied.
Respectfully submitted, I
Jo g h G941o, Esquire OM of the Attorneys for Consumers Power Company l
Isham, Lincoln & Beale l
1120 Connecticut Avenue, N.W.
l Suite 325 l
Washington, D.C.
20036 l
Telephone:
(202) 833-9730 Dated:
June 2, 1981 i
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