ML20005A109

Answer Supporting Acorn 810616 Motion for Voluntary Dismissal.Moves That Prehearing Conference Be Cancelled as Unnecessary.Certificate of Svc Encl

ML20005A109
Person / Time
Site:	Comanche Peak
Issue date:	06/24/1981
From:	Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8106290401
Download: ML20005A109 (8)

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• June 24, 1981

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E JUN 2 G 1981* h i sh Wp d UNITED STATES OF AMERICA 2 b '

NUCLEAR REGULATORY COMMISSION 9

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[\ Office of de Sc'h!Y Dockenng & San!ce //

4 Branch 9 i' In the Matter of ) -

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TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 COMPANY, - _al.

et ) 50-446 (Commanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating Licenses)

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APPLICANTS' (1) ANSWER TO ACORN'S MOTION FOR VOLUNTARY DISMISSAL, AND (2) MOTION TO CANCEL PREHEARING CONFERENCE I. Answer to ACORN's Motion for Voluntary Dismissal Pursuant to 10 C.F.R. $2.730(c),. Texas Utilities Generating Co., et al. (" Applicants"), hereby support the Motion for Voluntary Dismissal filed by Texas Association of Community Organizations for Reform Mow (" ACORN") on June 16, 1981. Applicants urge the Atomic Safety and Licensing Board

(" Board") to grant ACORN's motion, dismiss ACORN as a party-intervencr, and dismiss ACORN's contentions.

On June 16, 1980, the Board issued its Order Sub-sgquent to the Prehearing Conference of April 30, 1980, in which twenty-five contentions were admitted to this proceed-ing. Of those twenty-five contentions, ACORN was the sole 8100gD0i b h 9

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sponsor of Contentions 10 through 21 (12 contentions) and a

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joint sponsor of contentions 4, 5, 22(f), 23 and 24(a) (3 con-tentions and portions of 2 other contentions). By its Rulings on Objections, dated October 31, 1980, the Board dismissed Con-tention 11 from the proceeding.

Thereafter, on December 31, 1980, the Board issued its Memorandum and Orde. regarding consolidation of the Inter-venors. In that Order the Board designated ACORN lead party-intervenor for the eleven contentions (10 and 12 through 21),

for which it was the sole sponsor, and for two of the con-1/

tentions (5 and 23) for which it had been joint sponsor 7 Ac-cordingly, since ACORN has been the sole intervenor to press Contentions 10, 12 through 21, and 23 (see note 1, below), the Board should dismiss those contentions. The Board also should dismiss Contention 5 unless some other inter *ienor seeks to be substituted as lead party-intervenor.

Upon the Board's granting of ACORN's motion, Inter-venors CASE and CFUR would thereafter be lead party-intervenors for the following contentions:

CASE Contentions 22, 24 and 25.

CFUR Contentions 1, 2, 3, 4, 6, 7 and 9.-2/

l 1/ The other joint sponsor of Contention 23 was intervenor CASE, which withdrew its 'nterest in contention 23 in December, 1980.

See Supplement to CASE's Answers to Applicants' First Set of In-terrogatories and Requests to Produce, December 1, 1980, at p. 13.

2/ In its June 10, 1981 Response to Applicants' Motion to Strike, CFUR noted its intent to " defer to the efforts of the Staff on (footnote continued on p. 3) l

II. Motion to Cancel Prehearing Conference By Notice and Order served-on~ June 11, 1981, the Board scheduled sua sponte a prehearing conference for July 8 and 9, 1981, in Fort Worth, Texas. The conference is to 1

" deal principally with matters of discovery and scheduling as outlined in the Board Memorandum to the parties on June 8, 1981."

Applicants hereby move that this prehearing con-forence be cancelled as unnecessary in view of events since issuance of the Board's June 11 Notice and Order. The prin-cipal development is the withdrawal from this proceeding of intervenor ACORN. That withdrawal should result in the dis-missal of ACORN's contentions (see Part I, supra) and the mooting of the pending m-tions of the NRC Staff and of Appli-cants to compel ACORN to comply with discovery requests and of Applicants to strike certain contentions of ACORN. Accor-dingly, a substantial portion of the matters that were to be

, dealt with at the prehearing conference can be disposed of by a Board order granting ACORN's motion to withdraw, dis-

missing ACORN's contentions, and denying as moot the pending ,

1 l notions against ACORN.

l (footnote continued from p. 2) l the issue of drawdown due to use of groundwater" at Comanche Peak, which is the subject of Contention 8. Response at p. $.

CFUR stated. that "it appears that the Staff is adequately exam-ining the problems with which CFUR is concerned in this area."

l These statements indicats an intent by CFUR to withdraw Con-tantion 8 from the proceeding, and the Board should dismiss Contention 8 in its order ruling on ACORN's motion for volun-tary dismissal.

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The remaining motions now pending in the main re-late.to a fundamental disagreement between Applicants and intervenor CFUR as to the proper scope of discovery in NRC proceedings. At bottom, the dispute between CFUR and Appli-cants seems to involve the interpretation of the clauses "the subject matter involved in the proceeding" and "those matters in controversy" contained in 10 C.F.R. $2.740(b)(1). CFUR main-tains generally that it may discover any information which re-lates to the application for operating licenses. For example, with regard to Contention 7 (rock "overbreak" and fissure re-pair), CFUR argues that its discovery inquires "about matters which ralate to the construction of the CPSES structures and consequently are highly relevant to the ultimate issue in this proceeding of whether the Applicants should be issued an oper-ating license." CFUR's Motion to Compel (May 12, 1981) at p. 2.

Applicants maintain generally that parties seeking discovery must identify the contention to which the discovery relates, and then may obtain discovery regarding matters rele-vant to that contention. For example, in response to CFUR's I discovery requests regarding Contention 7, Applicants provided 3/ 10 C.F.R. $2.740(b)(1) provides, in pertinent part, as Tollows:

"(1) In general. Parties may obtain dis-covery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding . . . . In a proceeding on an application for a con-struction permit or an operating license (footnote continued on p. 5)

responses to inquiries involving rock "overbreak" and fissure repair, but declined to respond to inquiries involving the separate and unrelated activity of pouring concrete for the foundation of CPSES Units 1 and 2. Applicants' Answer to CFUR's Motion to-Compel (May 27, 1981), at pp. 2-3.

In any event, these matters raise basic legal ques-tions which the Board certainly can dispose of based upon the pleadings. The time and resources of the parties and this Board would be more efficiently expended if the Board can-celled the prehearing conference scheduled for July 8 and 9 4/

and disposed of the pending motions on the basis of the writ-ten pleadings. The matters of schedule listed in the Board's (footnote continued from p. 4) for a production or utilization facility, discovery shall . . . relate only to those matters in controversy which have been

! identified by the Commission or the pre-sid.'.ng officer in the prehearing order . . . .

4/ Applicants have compiled a list of the pending motions and responses thereto which we believe,,is complete (assuming '

that ACORN's !aotion to withdraw is granted) . The list is attached for the convenience of the Board.

Pre-Hearing Conference Agenda dated June 8, 1981 (items V through IX) could be handled through written submissions of the parties (and perhaps telephone conference calls).

Respect u y submitted, 3l\ A-NicholayS/' Reynolds JU William A. Horin i DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202)857-9817 Counsel for Applicants June 24, 1981 l

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June 24, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 COMPANY, et --

al. ) 50-446 (Commanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating Licenses)

__ )

PENDING MOTIONS Applicants' Motions: Response:

1. To Compel CFUR to Respond to CFUR Response-5/ll/81 Second set 4/24/81

2. To Strike CFUR Contentions CFUR Response-6/10/81; 5/26/81 Staff Response-6/12/81

3. To Compel CFUR to Respond to CFUR Response due Third Set 6/12/81 6/27/81 Staff Motions: Response:

1. To Compel CASE to Respond to Unopposed (CASE did First Set 3/4/81 supplement responses 2.

on 4/6/81)

To Compel CFUR to Respond to CFUR Response-4/24/81 First Set 3/31/81 CFUR Motions: Response:

1. To compel Applicants to Respond Applicants' Response-to First Set 4/28/81 5/13/81

2. To Compel Applicants to Hold Applicants' Response-Design Audit at Comanche 5/18/81; Peak 5/11/81 (Moot) Staff Response-5/21/81

3. To Compel Applicants to Respond Applicants' Response-to Second Set 5/12/81 5/27/81

4. To Compel Applicants to Respond Applicants' Response-to Third Set 5/19/81 6/3/81

5. For Protection and Oral Argu- Applicants' Response ment 6/10/81 (included in due 6/25/81 Respcnse to Applicants' Motion to Strike)

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6. To Compel Applicants to Respond Applicants' Response to Fourth Set (with Motion to due'7/6/81 Find Applicants in Default) 6/18/81 CASE Motions Response:

1. To Compel Applicants to Respond Applicants' Response-to Fourth Set 3/17/01 4/1/81 a

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. s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC BAFETY AND LICENSING BOARD In the Matter of )

)

TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 COMPANY, et--

al. ) 50-446 (Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating Licenses)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Applicants' (1) Answer To ACORN's Motion For Voluntary Dismissal, and (2)

Motion to Cancel Prehearing Conference," in the above-captioned matter were served upon the following persons by deposit in the United States mail, first class postage prepaid this 24th day of June, 1981:

Marshall E. Miller, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Marjorie Ulman Rothschild, Esq.

Dr. Forrest J. Remick, Member Office of the Executive Atomic Safety and Licensing Legal Director Board U.S. Nuclear Regulatory 305 E. Hamilton Avenue Commission State College, Pennsylvania 16801 Washington, D.C. 20555 Dr. Richard Cole, Member David J. Preister, Esq.

Atomic Safety and Licensing Assistant Attorney General Board Environmental Protection U.S. Nuclear Regulatory Division Commission P.O. Box 12548 Washington, D.C. 20555 Capitol Station Austin, Texas 78711 i

Chairman, Atomic Safety and Licensing Board Panel Mr. Richa'rd L. Fouke U.S. Nuclear Regulatory CFUR Commission 1668B Carter Drive I Washington, D.C. 20555 Arlington, Texas 76010

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Arch C. McColl, III, Esq. Dwight H. Moore, Esq.

701 Commerce Street West Texas Legal Services Suite 302 100 Main Street (Lawyers Bldg.)

Dallas, Texas 75202 Fort Worth, Texas 76102 Jeffiry L. Hsrt, EJg. Mr. Chase R. Stephens 4021 Prescott Avenue Docketing & Service Branch Dallas, Texas 75219 U.S. Nuclear Regulatory

' Commission Mrs. Juan'ta Ellis Washington, D.C. 20555 President, CASE 1426 South Polk Street Dallas, Texas 75224 f)) b' William A. Horin cc: Homer C. Schmidt Spencer C. Relyea, Esq.

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