ML20081C271

Motion to Declare Applicant 840228 Motion for Summary Disposition on Contention 15-AA untimely.Twenty-day Extension Should Be Granted to Respond to Motion in Alternative.Related Correspondence

ML20081C271
Person / Time
Site:	Harris
Issue date:	03/07/1984
From:	Eddleman W EDDLEMAN, W.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20081C272	List: ML20081C271 ML20081C274 ML20081C279 ML20081C283 ML20081C288
References
82-468-01-OL, 82-468-1-OL, OL, NUDOCS 8403130186
Download: ML20081C271 (4)

Text

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9 er REtATED CCRRESFOs4DENCE UNITED STATES OF AMERICA Marchyf*398h

' 7 NUCLEAR ~ BEGULATORY COMMISSION 84 MR 12 A11:25 ca t. .. c BEFORE THE ATOMIC SAFETY AND LICENSING BOA 3SifI.Y5,E Glenn O. Bri ##"

Dr. James H.ght Carpenter James L. Kelley, Chairman In the Matter of

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CAROLINA POWER AND LIGHT CO. et al. )

(Shearon Harris Nuclear Power Plant, )

Units 1 and 2) ) ASLBP No. 82-h68-01

) OL Motion to Declare Applicants' 2-28a8h Motion Untimely (Summary Disposition of Contentien 15-AA )

1. Applicants, with no notice to me and no motion for allowing filing, filed 2-28-84 a motion for summary disnosition on Contention 15-AA . This contention was admitted 8-18-83 (order at 8, 8-18-83).

2. Applicants, on 9/12/83, moved the Board to establich schedules i

which included (p.4) the statement " Motions for summary disposition of Eddleman 8F(1) and (2) and 15AA could still be filed any time prior to , December 1, .1983 . . . Applicants' proposed schedule represents a reasonable balancing of the interests of all na rties ..." and goes on to say (p.5) that "little other discovery is taking place at this time, since. the parties agreed to defer discovery on several safety contentions until,after the environmental hear.ing," so "Mr. Eddleman is not -

prejudiced." The Board in its Order of 10-P5-83 (see at pp 3-5) does l not explicitly consider summary disnosition or set deadlines for it.

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3. In the Board's It 83 Order (p.3) it says ".. .Ms. Milldr asked Aoplicants if they knew whether they would be filing any 6ther motions for summary d isposition on contentions based on the DES, and if so, when.

Applicants stated that they may file a motion for summary i

disposition of Eddleman Contention 8F(1) during the last week of this i month." That 's all that 's in this Order re Anolicants ' plans.

l Applicants actually filed such a motion on 12-6-83. o 8403130186 840307 PDR ADOCK 05000400 c

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_. _o _

PDR . - - - - - - --.

4. In contrast to Contention 83/843, where a second motion for sunnary disposition was filed (well after the established deadline for summary disposition on the schddule agreed to by the parties and Board, for which see 3-10-83 Order re environmental contentions schedule, p.6),

in the case of 15AA there are no changed circumstances concerning the plant. (On 83/84B, Applicants say that the 12-21-83 cancellation of Barris 2 means no Cape Fear River water will be used to cool Harris now.)

5 Applicants did not state intent to ever file E motion for summary disposition on 15AA to mv knowledge. I recall a statement cc by attorney-Baxter in a conference call that Applicants were not

> moving. for summary disnosition on 15AA; he confirmed by telephone that he may have said tnat, but that it was only Aunlicants' "present position" (I recall no words about "present position" in the call) and that Applicants had changed their minds once the environnental hearings were delayed by the Board.

6. A different attorney handles 15-AA(Dale E. Hollar) for Applicants. Attorney Carrow was able to get Applicants ' sunntry disuosition notion on 8F1 (an equally technicc1 issue on which, moreover, Applicants nossessed no experts in-house; on capacity factor, they have peonle who testify in hearings about it, though they say they rely on industry studies), by 12-6-84 Applicants may say they didn't have enough time to file on 15-AA in 1983, but they pronosed the schedule deadline of December 1; they had a separate attowney to handle 15-AA;' they, when asked, didn't say they would file for sunnary disposition on 15-AA (11-10-83 Board Order at 3). Apnlicants could have timely filed such a motion had they so desired, I believe.

7. By their.own schedule, their own statenent to the Board (11-10-83 at 3), the lack of changed circumstances on the substance of 15-AA, and their statements as I recall them, Applicants have either denied intent to file for summary disposition on 15-AA or failed to file on time .

Therefore, their 2-28-84 filing is untimely.

8. In discussing the tineliness of their 2-28 8h notion (id. at 2-3), Applicants never mention their own proposed schedule filed 9-12-83, nor the Board order of 11-10-83, nor do they give any reason why they could not have met their own pronosed 12-1-83 deadline. If this be not deception, might it be ignorance? I would presume that Applicants and their attorneys should be familiar with their own schedule proposals and commitments, and with Board orders thereon.

9. Applicants do state (id. p.3) that " Applicants previously

.had not intended to file for summary d isnosition of Contention 15AA because=it was unlikely that a ruling could have been obtained prior to the scheduled January hearing." This is the first time I reen11 seeing or hearing such a statenent fron them. In any case, this s ate.

ment directly contradicts the 9-12-83 schedule pronosal of Applicants, which provides for filing of summary disposition notions on the contentions (such as 15-AA) admitted 8-18-83, by December 1,1983 Applicants actually did file summary disuosition notions on two such contentions 8F(1) and 8(F(2). In light of these facts, the above one-sentence " explanation" seems unpersuasive to me. Applicants offer no reason why the capacity factor issue of 15AA was harder to deal with than the coal pollution (8F-1) or nuclear fuel cycle (8F-2) issues.

Indeed, since they're a power conpany, it is logical to think they should be more familiar with capacity factor issues. They have often proclaimed their 70% capacity factor estimate for Harris 1.

iO. In sum, Applicants have no basis to claim this motion is timely, or at least no valid basis.

Therefore, I respectfully move the Board to A. Rule Applicants ' 2-24-Bh notion for summary disnosition untimely, OR IN THE ALTERNATIVE B. To grant'me a 20-day extension of time to resnond to said motion due to my heavy workload including discovery, discovery resnonses (on numerous safety contentions), dealing with the energency plan, resnonding to sumnary disposition on 83 and other work including con /8hB -teachingsulting and utility cases.

(begins 7 Mar for

• t term)

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3. , ' M 1rv s-This lh(day of March 198h We is Eddlemas l

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UNITED STATES OF AMERICA NUCLIAR REGULATORY COMMISSION In the matter of CAROL!hA POWER 4 LIGkfT CO. at al. )) Docket 50-400 d

Shearon Harris Nuclear Power Plant. Un.ts 1 and 2 O.L.

CEBTIFICATEOF SERVICE W.E. Responses to Apoliennts' InterroFator$

2 hereby certify that copies of es on 9. 11._11?fc)(2) Sn+*en +n =11ow filing of affidavit of Dr. John O. Blackburn re 2.758 vetition; *eswer to Apes & Staff re E-64 Summat v TM un=4 +4 nn- h a - % *-- t m ec 7, Di Eddleman HAVE 107; Motion been served this 'ttp., declare day of 2-28-84 wo ,,,.w Apolicants Su3epoYb ktA un-19 Q , oy timelv '

the US W il, first-class postage prepaid, upon all parties whose I names are listed below, except those whose nanes are parked with ,

an asterisk, for whom service was acconplished by EXParess mail to y , , Judge Ke11xey for Board and to Trowbridge for Aeolicants ; hand-se*ved '

r -also to CP&L in Raleigh NC (anticipated March 8)

JudEes Ja ws Ke11ev, Glenn Bright and James Carpenter (1 e gy each)

/ Atomic Safety and Licensing Board US Nuclear Megulatory Commission g g g g Washington DC 20555 g g[ y,

1. trallvf d l A4r (Od k 8 *i9 k- gc SM /%e

• George F. Trowbridge (attorney for Applicants)

Shaw, Pittman, Potts & Trowbridge R uthanne G. Miller rc 2-29 1 1600 M St. NW ASLB Panel #fpW, l WashinEton, DC 20036 USNRC Washington DC 2055 5 kg

/5 Office of the Executive Legal Director 111s Letchin, Ph.D. 6 Attn Docke ts 50-400/k010.L. Phi Ic Bridle Run /;f,yt USNRC Chapel Hill NC 2751h gy Washington DC 20555 ~-

Docketing and Service Section (3x)

Dan Read CEA%T/FLP

/jg I Attn Dockets 50-h00/h01 0.L. .

Waleigh,T/07 NCWaveross Office of the Secretary h7606 l a r4 ton DC 20555 oI,fner'sWaNe$t.Bd.

John Runkle -

513 Albenarle B1ds.

325 N. Salisburv St.

Granville Rd I"*E8h <

Chapel Hill Nc 2751h y Bradley W. Jones I Robert Gruber USNRC Region II l

'Travi s Payne Exec. Director 101 Marietta St. I Edelstein & Payne Public Staff Atlanta G3 30303 mex 12601 Box 991 Raleigh NC 27605 RaleiSh NC 27602 Richard W$1 son, M.D. Certified by h 729 Hunter St.

Apex NC 27502

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