ML20009B257

Answer to 810626 Joint Motion for Extension of Time to Complete Discovery.Any Delay at This Time Increases Likelihood of Addl Delay Later in Proceedings.Certificate of Svc Encl

ML20009B257
Person / Time
Site:	Clinton
Issue date:	07/08/1981
From:	Fazio P ILLINOIS POWER CO., SCHIFF, HARDIN & WAITE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8107150179
Download: ML20009B257 (10)

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UNITED STATES OF AMERICA V

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NUCLEAR REGULATORY COMMISSION o.5-

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IN THE MATTER OF ) bI1bN' ILLINOIS POWER COMPANY, )

SOYLAND POWER COOPERATIVE, INC. ) Docket Nos . 50-461 OL and WESTERN ILLINOIS POWER ) 50-462 OL COOPERhTIVE, INC. )

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(Operating Licenses for Clinton )

Power Station, Units 1 and 2) )

ANSWER OF APPLICANTS TO JOINT MOTION FOR EXTENSION OF TIME TO COMPLETE DISCOVERY Illinois Power Company ("IP"), Soyland Power Cooperative , Inc. , and Western Illinois Power Cooperative ,

l Inc. (collectively " Applicants") , by their attorney, Peter V.

Fazio, Jr., hereby submit, pursuant to Section 2.730(c) of the Rules of Practice of the Nuclear Regulatory Commission

("NRC" ) , their Answer to the Joint Motion of the Prairie Alliance and the State of Illinois (" Illinois") for Exte 3 ion of Time to Complete Discovery (" Joint Motion") .

1. In its order issued May 29, 1991, the Atomic Safety and Licensing Board established June 26, 1981, as the deadline for first round discovery requests. Prairie Alliance and Illinois separately served their first sets of interrogatories and their first requests for production of docuhtents on June 26, 1981. On that same date, they filed their Joint Motion requesting an extension of time NO3 in which to formulate additional discovery requests. 5

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8107150179 810708 PDR ADOCK 05000461 G PDR

2. Applicants oppose the Joint Motion on the grounds that it is untimely, it fails to show good cause as required by 10 CFRs 2.711(a), the granting of the Joint Motion will delay the proceedings, and the double discovery requested by the Joint Motion would prove unduly burdensome to Applicants.

3. Prairie Alliance and Illinois have failed to comply with the present NRC policy as set forth in Part III.A. of the U.S. Nuclear Regulatory Commission Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, May 21, 1981 (Statement of Policy): " Requests for an exten-sion of time should generally be in writing and should be received by the Board well before the time specified expires." at p. 4 (emphasis added) . Prairie Alliance and Illinois f.' led their Joint Motion on the last day of the period allowed for first round discovery requests without explanation for the delay. Granting the Joint Motion would be unfair to the Staff and Applicants, who have completed and filed their discovery requests on time.

4. Prairie Alliance and Illinois have failed I

i to show cause for their alleged inability to consult with their experts in time to formulate first round discovery re ques ts .

5. The lack of resources cited by Prairie Alliance and Illinois in paragraph 5 of the Joint Motion is not

a good cause for f ailure to complete first round discovery requests on time. The filing of the Joint Motion brings into serious question the representations made at the Second Special Prehearing Conference held in Champaign , Illinois on April 14, 1981. At that conference, Mr. Samelson, on behalf of Prairie Alliance, stated:

" Prairie Alliance would like to be on the record that we wholeheartedly agree with the concerns that were just stated that the licensing process should be conducted in a timely and efficient manner. And we intend to cooperate in every respect to make sure that the licensing process is conducted in that manner." Transcript of Second Special Prehearing Conference, at

p. 70.

Similarly, when questioned on the ability of Illinois to meet the discovery timetable to be set by the Licensing Board, Mr. Neuman stated:

"No problems, Judge Clark. I was just going to say that we would be fully prepared to live within whatever framework is adopted.

I don't anticipate any problems." Transcript of Second Special Prehearing Conference, at p. 224-25.

The Joint Motion indicates that Prairie Alliance and Illinois now saek to avoid the responsibilities which they embraced when they were attempting to show why they should be allowed to participate in the licensing process.

6. Good cause for further fi rst round discovery cannot be shown given the number and extent of coverage of the interrogatories which Prairie Alliance and Illinois

served upon Applicants on June 26, 1981. It is obvious that Prairie Alliance and Illinois each took responsibility for drafting interrogatories on one-half the contentions.

Illinois filed 53 interrogatories dealing with contentions 2, 3, 5, 8, 10 and 12, while Prairie Alliance draf ted 114 interrogatories dealing with contentions 1, 4, 6, 7, 9,

11. Many of these interrogatories have numerous subparts.

As many as 63 interrogatories have been submitted with regard to a single contention. The interrogatories already submitted are quite comprehensive and suf ficiently cover all issues raised by the admitted contentions. Moreover, allowing further first round discovery would violate the NRC's guidelines on limiting the number of interrogatories.

In the Statement of Policy at page 6, the NRC stated: "The Commission believes that the benefits now obtained by the use of interrogatories could generally be obtained by using a smaller number of better focused interrogatories and is considering a proposed rule that would limit the number of interrogatories a party could file." On June 8,1981, the NRC proposed amending 10 CFR S2.740b to limit to 50 the number of interrogatories which one party can serve on another party, " absent a ruling by the Board that a greater number of interrogatories is justified." 46 Fed.

Reg. 30349 (June 8,1981) . Thus it is apparent that the NRC is seeking to limit the number of interrogatories in

any particular proceeding. Further interrogatories should be allowed only if Prairie Alliance and Illinois could justify them. However, the Joint Motion fails to state sny need for further inquiry which might justify additional first round discovery.

7. The request for extension of time made by Prairie Alliance and Illinois poses a real threat of delay in these proceedings. Discovery should be completed as rapidly as possible so that the issues can be narrowed through settlement or summary disposition prior to the issuance of the Staff's SER in January 1982. The parties can then focus their full attention on any additional issues that may be raised in the SER. Any delay at this time increases the likelihood of additional delay later in the proceedings.

8. Because of the number and breadth of coverage of the interrogatories already filed by Prairie Alliance and Illinois , Applicants have already begun a systematic program of employee consultation and document re'ciew in order to furnish responses. Prairie Alliance and Illinois

! are now seeking to have Applicants repeat this expensive, time- consuming process in the future without offering any justification as to why such a second review will be neces-l sary.

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9. For all the reasons set forth above , Prairie Alliance and Illinois have f ailed to show any acceptable justification for granting an extension of time.

WHE REFORE , Applicants respectf ully request that the Joint Motion of Prairie Alliance and Illinois For An Extension of Time to Complete Discovery be denied.

Respectf ully submitted ,

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Peter V. Fazio, Jim One of the Attorneys for Applicants Sheldon A. Zabel William Van Susteren Charles D. Fox IV l SCHIFF HARDIN & WAITE 7200 Sears Tower j

233 South Wacker Drive

! Chicago, Illinois 60606 l (312) 876-1000 l

l Dated: July 8,1981 l

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3-4 CERTIFICATE OF SERVICE I hereby certify that an original and two con-formed copies of the foregoing document were served upon the following:

Secretary of the Commission United States Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch and that one copy of the foregoing document was served upon each of the following:

Hugh K. Clark, Esq., Chairman P. O. Box 127A Kennedyville, Maryland 21645 Dr. George A. Ferguson School of Engineering Howard University 2300 Sixth Street, N.W.

Washington, D.C. 20059 Dr. Oscar H. Paris Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Executive Legal Director United States Nuclear Regulatory Commission Washington, D.C. 20555 Philip L. Willman Assistant Attorney General Environmental Control Division 188 West Randolph Street Suite 2315 Chicago, Illinois 60610 Prairie Alliance P. O. Box 2424 Station A Champaign, Illinois 61820 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 in each case by deposit in the United States Mail, postage prepaid on Julj 8, 1981.

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-(N J Peter V. Fazio , 'J r.

One of the Attorneys for Applicants SCHIFF HARDIN & WAITE 7200 Sears Tower 233 South Wacker Drive Chicago, Illinois 60606 (312) 876-1000

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION IN THE MATTER OF )

ILLINOIS POWER COMPANY, )

SOYLAND POWER COOPERAiIVE, INC. )

and WESTERN ILLINOIS POWER )

COOPERATIVE, INC. )

I Docket Nos. 50-461-OL (Operating Licenses for Clinton )

50-462-OL Power Station, Units 1 and 2) )

NOTICE To:

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/'b Hugh K. Clark, Esq., Chairman - 4>

P. O. Box 127A (

Kennedyville, Maryland 21645 [ D0 DEED \\

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• Dr. George A. Ferguson 2 JOU101981

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School of Engineering '

Howard University d N M4 9 g we 2300 Sixth Street, N.W. ggg$ E,= /

Washington, D.C. 20059 M' g 9 Dr. Oscar H. Paris Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Executive Legal Director United States Nuclear Regulatory Commission Washington, D.C. 20555 l

Philip L. Willman

Assistant Attorney General i Environmental Control Division

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i 188 West Randolph Street Suite 2315 Chicago, Illinois 60610 Prairie Alliance P. O. Box 2424

[ Station A l Champaign, Illinois 61020 l Atomic Safety and Licensing Board Panel l U.S. Nucelar Regulatory Commission j Washington, D.C. 20555 l

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I Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 PLEASE TAKE NOTICE that I have filed with the Secretary of the United States Nuclear Regulatory Commis-sion ANSWER OF APPLICANTS TO JOINT MOTION FOR EXTENSION OF TI TO COMPLETE DISCOVERY in the above captioned matter. A copy of this document is attached hereto and hereby served upon you.

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YYN ' h Peter V. Fazio, W One of the Attorneys for Applicants SCHIFF HARDIN & WAITE 7200 Sears Tower 233 South Wacker Drive Chicago, Illinois 60506 (312) 876-1000 Dated: July 8, 1981