ML20062A456
| ML20062A456 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 10/05/1978 |
| From: | Hiestand O MORGAN, LEWIS & BOCKIUS |
| To: | |
| References | |
| NUDOCS 7810140029 | |
| Download: ML20062A456 (8) | |
Text
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NUCLEAR REGULATORY COMMISSION
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In the Matter of
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Docket No.,50-409,
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Amendment to -
DAIRYLAND POWF.R COOPERATIVE
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Provisional Operating
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License No. DPR-45 (La Crosse Boiling Water Reactor)
)
APPLICANT'S ANSWER TO INTERVENOR'S MOTION FOR EXTENSION OF THE DISCOVERY PERIOD Pursuant to 10 CFR S 2.730(c), Dairyland Power Cooperative (Dairyland), the applicant for a license amend-ment to Provisional Operating License DPR-45 in the above-captioned proceeding, hereby files its answer in opposition to Intervenor Coulee Region Energy Coalition's (CREC)
September 29, 1978 Motion For a 30 Day Extension of the Discovery Period.
In support of this answer, Dairyland states the following:
1.
In its Prehearing Conference Orders dated September 5, 1978, the Licensing Board specified that all discovery requests in this proceeding shall be filed on or before October 1, 1978 and that discovery must be ccm-1/
pleted no later than November 1, 1978. -
1/
CREC had earlier agreed in principle to this schedule during the course of the August 17, 1973 Prehearing Conference. (Tr. 138-140).
78\\6\\44029 G-
-2 Nevertheless, CREC did not file its first set of interrogatories and request for production of documents against Dairyland until September 18, 1978.
CREC subsequently filed three more sets
>f interrogatories and requests for docu-ments against Dairyland on September 28, 1978.
2.
Under 10 CFR S 2.711, the Licensing Board in this proceeding may grant a request for additional time that is made prior to the expiration of the period originally prescribed for a filing -2/
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provided good cause is shown.
CREC asserts that its motion for an extension of time should be granted because (a) the "information required by the inter-venor for the proper formulation of questions for interroga-tories" has not been forthcoming, (b) intervenor's " reliance on voluntary assistance" to prepare its case makes the present
-2/
CREC's motion for a 30 day extension of the discovery period was postmarked September 30, 1978 -- the dav before all discovery requests were required to be filed under the terms of the Board's order.
-3/
10 CFR S 2.711(a).
See e.g., Wisconsin Electric Power Co. (Point Beach 2), ALA3-78, 5 AEC 319, 323 (1972).
"ederal courts also have discretion to grant such re-quests under an analogous provision in the Federal Rules of Civil Procedure (FRCP 6(b)(1)).
See Yonofskv
- v. Wernick, 362 F. Supp. 1005, 1014 (S.D.NTY 1973).
However, such motions may only be granted for " good cause shown" and the burden is on the moving party to demonstrate the justification for such en extension.
4 Wright & Miller, Federal Practice and Procedure:
Civil, 5 1165 at 620.
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-3 deadline for completion of discovery burdensome and un-reasonable, (c) intervenors are impeded from participation in the proceeding at this time because of their " agricultural orientation" and " involvement with the Fall harvest" and (d) a 30 day extension would not delay the commencement.of Cycle 6 at LACBWR.
As shown below, none of these " reasons"
-- either considered separately or in combination with one another -- rise to the level of the " good cause shown" necessary to permit the grant of this motion.
3.
The fact that intervenors had access to suf-ficient infornation related to the proposed expansion of the LACBWR spent fuel pool to enable them to submit four j
sets of detailed interrogatories and requests for documents would seem to belie their first assertion that information necessary for the proper formulation of interrogatories has not been forrhcoming.
Dairyland's original license amend-ment application dated April 20, 1978, its June 7, 197S l
supplement to the application, as well as subsequent reports and correspondence with NRC, were all available to CREC and provide a wealth of detailed information related to the proposed SFP expansion in general and the four specific 4/
issues raised by CREC=in its contentions. ~
i 1/
It should be roced that CREC elected to devote a signifi-cant portion of its first set of interrogatories to re-qt ast infor=ation concerning alternatives to the pro-posed SFP expansion in spite of the fact that the Board specifically rejected the CREC contention which sought to raise such issues.
See Applicant's Response to CREC's First Set of Interrogatories dated September 18, 1978 (Oct. 5, 1978).
-4 4
As its second and third " reasons" for the extension, CREC asserts that it is time consuming and burdensome to prepare its case, particularly during the fall harvest.
Dairyland considers it somewhat curious for intervenors to suddenly realize they have pressing agricultural commitments during the September-October time frame at this juncture in light of their silence on this issue during the course of the Prehearing Conference when the proposed dis-covery schedule was under discussion.
CREC's representations notwithstanding, however, the key issue in this regard is what impact the proposed extension would have on the public interest.
Such an extension could delay a decision in this proceeding in spite of the fact that there is clearly "a compelling interest in(abrivingat}anearlydecision"innuclearlicensingpro-5/
ceedings in general, - and this proceeding in particular.
As the Appeal Board observed in Potomac Electric Power Co. (Douglas Point l'and 2), ALAB-277, 1 NRC 539, 532 i
(1975).
l although entitled to recognition, the convenience of the litigants cannot be deemed dispositive on scheduling matters.
The paramount consideration is where the broader oublic interest lies
. we find
'here to be a decided public interest j
t in.
. prompt airing and resolution.
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Allied-General Nuclear Services (Barnwell), ALAS-296, 2 NRC 671, o64-85 (1975).
l
-5 Moreover, intervenors in NRC licensing proceedings must assume the responsibilities, such as compliance with scheduling deadlines, imposed upon them by virtue of their participation in such proceedings and have an obligation to "make the system work" by fulfilling these responsibilties. -6/
Granting an extension of time in a situation where, as here, an intervenor apparently failed to meet these responsibilities through its own inadvertence or overextension would " place a 7/
premium on lack of diligence" and should be avoided. -
5.
Finally, for all the reasons stated in its July 27, 1978 Motion to Proceed With the License Amendment Proceeding On A Priority Basis, and amplified during the course of the Prehearing Conference, Dairyland's ability to continue to discharge spent fuel from LACBWR must be main-tained in order to assure the continued availability of LACBWR and to assure that Dairyland will be able to meet its own obligations to supply reliable and economic electric ser-vice to its customers.
Dairyland believes that the expansion
-6/
See e.g.,
Consumers Power Co. (Midland 1 and 2), ALAS-123, 6 AEC 331, 332 (1973); Northern States Power Co. (Prairie Island 1 and 2), ALAB-286, 2 NRC 390, 393 (1975);
Northern Indiana Public Service Co. (Bailly 1), ALA3-224 5 AEC 244, 250 (1975); Northern States Power Co. (Tyrone
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See e.g.,
Creedon v.
Taubman, 8 F.R.D. 268 (N.D. Ohio ITE7) (request for extension of time to file responses to discovery request denied since it would prejudice other carry and cause further delav).
-Cf. Mascn v.
- 3OAC, 20 F.R'.D. 213 (S.D. N.Y.
1957); Gantner and Mattern Co.
v Switzer Bros.. Inc., 11 F.R.D. 433 (N.D. Cal. 1951).
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-6 of the LACBWR SFP in accordance with the proposed license amendment must ultimately be achieved in order to maintain this ability to discharge spent frol.
Dairyland is therefore focusing its efforts on obtaining a timely decision by NRC on this amendment application.
Any unnecessary delays in this proceeding offer the potential for disruption of scheduled maintenance and operating activities at LACBWR, as well as other generating facilities on the LACBWR system.
CREC's last
" reason" for granting the extension (i.e., that a 30 day ex-tension now might not delay the commencement of Cycle 6) con-veniently ignores the fact that the schedule in this proceeding may slip for other reasons, in which case an additional 30 day extension here, which is not justified on other grounds, could prove extremely prejudicial to Dairyland and its customers in the long run.
For all the foregoing reasons, Dairyland respectfully submits that CREC's Motion For a 30 Day Extension of the Dis-covery Period should be denied.
Respectfully submitted,
~ ~ _ _
.-s.
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- 0. S. Hiestand Attorney for Dairyland Power Cooperative Of Counsel Kevin P. Gallen Morgan, Lewis & Bockius 1300 M Street, N.W.
Washington, D.C.
20036 Dated: October 5, 1973 l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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Docket No. 50-409
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Amendment to DAIRYLAND POWER COOPERATIVE
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Provisional Operating
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License No. DPR-45 (La Crosse Boiling Water Reactor
)
CERTIFICATE OF SERVICE Service has on this day been effected by personal delivery or first class mail on the following persons:
Ivan W. Smith, Esquire, Chairman Docketing & Service Section Atomic Safety and Licensing Office of the Secretary Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Atomic Safety and Licensing Mr. Ralph S. Decker Board Panel Route 4 U.S. Nuclear Regulatory Box 190D Commission Cambridge, Maryland 21613 Washington, D.C.
20555 Atomic Safety and Licensing Dr. George C. Anderson Appeal Board Department of Oceanography U.S. Nuclear Regulatory University of Washington Coc=ission Seattle, Washington 98195 Washington, D.C.
20555
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-2 Colleen Woodhead, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Richard J. Goddard, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Richard Shimshak Plant Superintendent Dairyland Power Cooperative La Crosse Boiling Water Reactor Genoa, Wisconsin 54632 Fritz Schubert, Esquire Staff Actorney Dairyland Power Cooperative, 2615 East Avenue, South La Crosse, Wisconsin 54601 Coulee Region Energy Coalition P. O. Box 1583 La Crosse, Wisconsin 54601 David S. Simpson Rt. 3 Box 34 -
Durand, Wisconsin 54736 Ellen Sabelko 929 Cameron Eau Claire, Wisconsin 54701 l
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O. S. Hiestand, Jr.
Dated:
October 5, 1978 1
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