ML20033A911
| ML20033A911 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/18/1981 |
| From: | Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8111300152 | |
| Download: ML20033A911 (8) | |
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DCLKETED NovemtieP18,1981 UNITED STATES OF AMERICA
'81 NI 23 P1:40 NUCLEAR REGULATORY COMMISSION m c : SECT.EIMY BEFORE THE ATOMIC SAFETY AND LICENSIIM BOARD.:i & 5EP.VICE
.:ANCH In the Matter of s
TEXAS UTILITIES GENERATING Docket Nos. 50-445
',4 COMPANY, g al.
50-446
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(Comanche Peak Steam Electric
)
(Application for Ng[f2 7 gg7 i
Station, Units 1 and 2)
)
OperatingLicenses)
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APPLICANTS' ANSWER TO CASE'S MOTION FOR RECONSIDERATION Y f yy.. s \\'g 0F CONSOLIDATION ON CONTENTION FIVE Pursuant to 10 C.F.R. 52.730(c), Texas Utilities Generating Co.,
et al. (" Applicants") hereby submit their answer to the Motion for Reconsideration of Consolidation on Contention 5 filed by Citizens Association for Sound Energy (" CASE") on November 7,1981. For the reasons set forth below, Applicants urge i.he Atomic Safety and Licensing Board
(" Board") to deny CASE's Motion iii its entirety.
I.
BACKGROUND On October 31, 1980, the Board issued its " Announcement of Plans for Consolidatio'n of Parties," requesting therein that the parties submit comments on the Board's plans for consolidation. On November 20, 1980, I
both Applicants and CASE submitted comments. CASE ar,gued in separate motions that it should be given separate party status or be designated lead party-invertenor on Contention 5 if the Board ordered consolidation.
On December 31, 1980, the Board issued a Memorandum and Order in which it rulcd on consolidation of the parties, denied CASE's motion for 9503 9
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.. separate intervenor status and appointed a lead party-intervenor for each contention. The Board found that the parties had been admitted to the proceeding on substantially the same interest, viz., proximity to the Comanche Peak facility.
In addition, the Board concluded that none of the parties' rights would be prejudiced by the consolidation of intervenors.
The Board noted in this regard that " prejudicing a right does not mean causing a ruere inconvenience or a financial burden or a time burden of limited consequence. Nor does the possibility of failure of an intervenor to cooperate or coordinate with other intervenors nor do differences of viewpoints among intervenors nor does additional effort required for pulling together spell out a case of prejudice of a right". Memorandum and Order at p. 9.
With regard to Contention 5, the Board found that "there is a similarity of questions about quality control and quality assurance raised by the intervenors." Memorandum and Order at p.10.
Consequently, pursuant to its authority and in accordance with the above findings, the Board ordered consolidation of the intervenors with respect to Contention 5, and designated Intervenor Texas Association of Community Organizations for Reform Now (" ACORN") as the lead party-intervenor on Contention 5.
On June 16, 1981, ACORN filed a Motion for Voluntary Disrissal from this proceeding. On July 24, 1981, the Board issued a Memorandum and Order in which it granted ACORN's Motion For Voluntary Dismissal. The Board also ordered that with respect to Contention 5 Intervenor Citizens For Fair Utility Regulation ("CFUR") would serve as l'ead party-intervenor.
On Novenber 7,1981 CASE filed the instant Motion For Reconsideration Of Consolidation On Contention 5, in which it moves that the Board designate it lead party-intervenor on Contention 5.
CASE argues in its Motion that the consolidation of the intervenors and initial I
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designation of ACORN as lead party-intervenor precluded CASE from pursuing discovery with respect ta Contention 5.
Motion at 2.
In addition, CASE argues that following ACORN's withdrawal from the proceeding, the designation of CFUR as lead party-intervenor on Contention 5 also precluded CASE from pursuing discovery on this Contention. Motion at 4.
However, CASE does not discuss any specific measures it took to pursue its questions through either ACORN or CFUR. CASE merely claims that it had " difficulties in getting in touch with ACORN's representative in Forth Worth, some thirty miles from Dallas." Motion at 3.
With respect to CFUR, CASE is silent as to whether it even attempted to contact CFUR.
Nevertheless, CASE concedcs that it could submit interrogatories on Contention 5 through the lead party-intervenor (CFUR), but that this would result in delays of a few days. Motion at 9-10.
II. APPLICANTS' ANSWER TO CASE'S MOTION The Board properly ordered consolidation of the intervenors on Contention 5 and also properly designated CFUR as lead party-intervew on Contention 5 when ACORN withdrew from the proceeding. Such matters are within the Board's discretion, and Applicants believe that discretion was properly exercised here. See 10 CFR512.714(e) and (f),5 2.718; Portland General Electric Co. (Trojan Nuclear Plant), ALAB-496, 8 NRC 308 (1978).
Thus, contrary to CASE's suggestion, the Board in ordering consolidation clearly was within the bounds of its authority.
The only remaining question is whether consolidation has actually prejudiced CASE's rights. As deinonstrated below, the allegations of prejudice also are without substance. The Board initially ordered consolidation of the parties pursuant to its December 31, 1980 Memorandum 4
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4 and Order. During the time which ACORN was the lead party-intervenor, CASE apparently did nothing meaningful to coordinate its efforts with ACORN with respect to discovery on Contention 5.
CASE only claims that it had
" difficulties" in getting in touch with ACORN's representative. Motion at 3.
Thus, while CASE complains of potential delays of three to seven days if it coordinates its discovery with the lead party-intervenor, a period of almost eleven months has expired during which CASE has failed to pursue meaningful coordination with either lead party-intervenor (ACORN or CFUR).
This scenario does not demonstrate that CASE's rights have been prejudiced by consolidation. Rather, it reveals that for elevea months CASE has done nothing to help the consolidation to succeed. Obviously, CASE cannot be allowed to sit idly, then claim prejudice when nothing happens.
Its motion for reconsideration of the Board's consolidation rulings on Contention 5 should be denied.
III. CASE'S OTHER REQUESTS CASE also requests that the Board " instigate an investigation" into the timing of announcement of schedule changes for Comanche Peak.
Motion at 17. However, CASE fails to explain the purpose of the request for the " investigation" or to relate it to matters that are within the jurisdiction of the Board. Applicants submit that such matters are not within the jurisdiction of the Board in this operating license proceeding, and that CASE's request should be denied accordingly., See Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167,170-71 (1976). To the extent that the construction schedule may impact the conduct of this proceeding, the Board 9
- must of course be kept infomed and Applicants have done so. See Applicants' pleading dated October 27, 1981.
CASE complains that Applicants did not notify the Board imediately following the announcement on October 26, 1981 of changes in the estimated dates of operatkn for Comanche Peak. 'fowever, the record clearly contradicts that charge, for on October 27, Applict;r.ts notified the Board of the October 26 announcement. CASE's complaint that the Board might have reached a different outcome in its decision to proceed with hearings scheduled in December if the Board had been aware of the revised schedule is likewise frivilous, because the Board in fact had this infomation before it issued its November 4,1981 Order reaffiming the December hearings.
Finally CASE's " request" to have a pre-hearing conference (in lieu of the hearing scheduled for December 2) has already been addressed by the Board in its November 4,1981 Order. CASE has shown no good cause for the Board to reconsider its decision in this regard.
IV. BOARD ADMONIT RN OF CASE CASE apparently still does not understand that the manner in which this proceeding is conducted is largely within the discretion of the Board, consistent with the dictates of NRC Rules of Practice, the Administrative Procedure Act, and fundamental fairness. The history of this proceeding to date reveals that CASE has been dissatisfied with most rulings of the Board, and that CASE has aggressively expressed its dissent and sought reconsideration and reversal.
This has been so even where, as here, the Board ruling has merely involved its exercise of discretion in charting the procedural course for the proceeding.
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6-The time and resources of the Board and the parties are better spent on matters of substance rather than in responding to CASE's frequent expressions of dissatisfaction with Board action. Perhaps it is time that the Board admonished CASE to refrain from challenging Board procedural rulings, asking the Board to change its mind, simply because CASE disagrees with the results.
Further, where CASE's complaints are unfounded and unsupported, the Board might even deny them summarily (without awaiting receipt of obligatory responses by the other parties) and notify the parties orally, as it has in the past.
V.
CONCLUSION For the foregoing reasons, Applicants urge the Board to deny CASE's motions and requests contained in its November 7,1981 pleading in their entirety.
-Respect y su mitted, Nichol atfS
<eynolds William A. Horin DEBEV0lSE & LIBERMAN 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 (202) 857-9817 Counsel for Applicants Date:
November 18, 1981 T
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445 COMPANY, et al.
)
50-446
)
(Comanche Pask Steam Electric
)
( Application for Station, Units 1 and 2)
)
Operating Licenses)
CERTIFICATION OF SERVICE I hereby certify that copies of the foregoing " Applicants' Answer to CASE's Motion For Reconsideration Of Consolidation On Contention Five"were served upon the follower persons by deposit in the United States mail, first class postage prepaid this 18th day of November 1981:
Marshall E. Miller, Esq.
Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U.S. Nuclear Regul atory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Marjorie Ulman Rothschild, Esq.
Dr. Kenneth A. McCollom Office of the Executive Dean, Division of Engineering, Legal Director Architecture and Technology U.S. Nuclear Regulatory Oklahoma State University Commission Stillwater, Oklahoma 74074 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 l
Commission P.O. Box 12548 l
Washington D.C. 20555 Capitol Station Austin, Texas 78711 Chairman, Atomic Safety and Licensing Board Panel J. Marshall Gilmore U.S. Nucl ea r Regul a tory 1060 W. Pipeline Road Commission Hurst, Texas 76053 Washington, D.C.
20555 l
l l
.. Mrs. Juanita Ellis Mr. Chase R. Stephens President, CASE Docketing & Service Branch 1426 South Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C.
20555 i
1
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William A. Hori n cc:
Homer C. Schmidt Spencer C. Relyea, Esq.
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