ML20081M209

Response Opposing Citizens Concerned About Nuclear Power 831028 Motion for Addl 90-day Discovery.Ample Opportunity Already Provided for Review.Certificate of Svc Encl

ML20081M209
Person / Time
Site:	South Texas
Issue date:	11/14/1983
From:	Silverman D HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8311170141
Download: ML20081M209 (9)

Text

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, USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '83 il0V 16 AII:56 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 7,q. _ c y ,, _ ,

In the Matter of )

) ,

HOUSTON LIGHTING & POWER ) Docket Nos. 50-498 OL s COMPANY, ET AL. ) 50-499 OL

)

(South Texas Project, Units 1 )

.and 2) )

APPLICANTS' RESPONSE TO CCANP MOTION FOR ADDITIONAL DISCOVERY I. Introduction By Motion dated October 28, 1983 Citizens Concerned About Nuclear Power (CCANP) has requested an additional ninety (90) days of discovery in Phase II of the South Texas Project (STP) operating license proceeding.*/ CCANP has failed to demonstrate good cause for the requested relief, and accordingly, its Motion should be denied.

II. Argument In order to justify extension of the discovery period originally set by the Atomic Safety and Licensing Board (Board), CCANP must demonstrate " good cause" for the requested relief pursuant to 10 CFR S 2.711. In this regard, the Commission has cautioned its adjudicatory boards "to satisfy

-*/ Citizens Concerned About Nuclear Power Motion for Additional Discovery (October 28, 1983) (Motion).

8311170141 831114 PDR ADOCK 05000498 G pon

o themselves" that the good cause standard has actually been met before granting'such relief. Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).

CCANP argues that it should be granted an additional period in which to conduct discovery because its representa-tive's law school studies "substantially impeded preparation of discovery" during the original period set by the Board, and because of the " sheer volume of the documents to be examined.. . . without the aid of staff or experts. . . .

Motion at 1-2.

The asserted grounds for CCANP's request do not warrant an extension of the already ample opportunity afforded CCANP to take discovery. The original discovery period set by the Board was the product of an agreement among all of the parties to this proceeding, including CCANP. Memorandum and Order (June 24, 1982) at 3 (Memorandum and Order); Tr. 10,664-67.

Although CCANP suggests that it was unaware of the full scope of the information bearing upon the Quadrex issues when it agreed to the original discovery period (Motion at 2), the Quadrex Report was transmitted to the parties over 7 months before the discovery schedule was set, and CCANP, therefore, had ample opportunity to make itself aware of the scope of the matters addressed in the Report before it agreed to the original discovery schedule. Furthermore, CCANP was also

' fully. cognizant of the fact that Bechtel would be reviewing

1 the Quadrex findings, .that the NRC Staff would be evaluating Bechtel's analysis,Eand that additional information would

-certainly result from those efforts. In fact, the parties agreed that the original discovery period would not commence until the Bechtel and Staff analyses had been_ completed.

Memor:ndum and Order at 3; Tr. 10,664-67.

In addition, even though CCANP asserts that the "[t]hou-sands of pages of highly technical documents" required more than 90 days of evaluation (Motion at 2) , CCANP was in possession of the vast majority of the relevant documents long before discovery began. In addition to the Quadrex Report iself, the Bechtel Task Force Report'was transmitted to the parties over nine months prior to commencement of discovery,*/ and Brown & Root's assessment of the Quadrex

' findings was transmitted over eight months prior to that time.**/ I&E Report 82-02 was sent over six months before discovery began,***/ and Bechtel Report EN-619 was retrans-mitted.three months prior to discovery.****/

While discovery began upon receipt of I&E Report 82-12, much of that report was a recapitulation of the findings already set forth in the Bechtel Task Force Report and EN-619. Thus, CCANP had considerably longer than the 90 day discovery period to review

• / Letter, G. W. Oprea to J. T. Collins (March 15, 1982).

• • / Letter, G. W. Oprea to J. T. Collins (May 6, 1982).

l -***/ Letter, J. M. Gutierrez to Board (June 25, 1982).

! ****/ Letter,'A. H. Gutterman to Board (October 21, 1982).

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x and digest the relevant documents, and more than ample opportunity to formulate any discovery'it wished to take.

Furthermore, CCANP's failure to file even a single discovery request cannot be justified on the basis of its representative's law' school obligations. CCANP's representa-tive was attending law school when he agreed to the original discovery period, and was therefore, well aware of the demands that were being, and would be made, upon his time.

CCANP, therefore, cites no unusual or extenuating circum-stances for the extension it now requests, which it was not aware of when it agreed to the original discovery period.

Commission precedent also requires denial of CCANP's Motion. In Texas Utilities Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-82-18, 15 NRC 598, 599 (1982),

an intervenor sought an extension of discovery, apparently citing, among other things, the difficulties encountered as an intervening party in the proceeding.*/ In concluding that

-*/ It is worth noting that the intervenor in Comanche Peak submitted its motion for extension approximately one month prior to termination of the discovery period. Id.

CCANP, on the other hand, has submitted its request over six months after its discovery rights have lapsed, and well after the time its representative indicated that his law school studies would be completed. See, CCANP Motion for Deferral of Rulings and Extension of Deadlines (April 20, 1983) at 1. CCANP's unwarranted delay is inconsistent with the Commission's policy that "[r]equests for an extension of time should . . . be received . . . well before the time specified expires," and that its licensing proceedings be conducted with efficiency and expedition.

Statement of Policy, 13 NRC at 452-55. Granting CCANP's Motion would encourage it to continue to flaunt Board orders and established time limits. See Applicants' Motion for Sanctions Against CCANP (October 6, 1983).

1 good cause had not been demonstrated, the Licensing Board relied,.in part, on the following Commission guidance:

the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not reliev9 that party of its hearing obligations.

Id. at 599 (quoting Statement of Policy, 13 NRC at 454).

In' Duke Power Co. (Cherokee Nuclear Statien, Units 1, 2 and 3), ALAB-440, 6 NRC 642, 644 (1977), the Appeal Board recognized that "[m]ost persons in our society are con-fronted with many and varied demands upon their time" and that the adjudicatory process could not " function effectively, if at all," if it were " wholly dictated by personal con-

.venience."*/ Thus, the Commission, and its adjudicatory boards have clearly recognized that the personal or other obligations of a party to NRC proceedings are not sufficient grounds for the failure to meet established deadlines and requirements.

• /

Personal or other professional obligations have also failed to provide good cause for late petitions to intervene (Cherokee, 6 NRC at 644), and have been determined to be insufficient to justify other failures to meet commission deadlines or to comply with Commis-sion requirements. Commonwealth Edison Co. (Byron Station, Units 1 and 2, LBP-81-30A, 14 NRC 364, 373 (1981).

In addition to the fact that the grounds asserted by CCANP do not justify the requested relief, it is also apparent that CCANP has failed to identify any actual need for the requested extension. Having failed to utilize the original discovery period set by the Board, it was incumbent on'CCANP to-identify some legitimate basis for the extraordinary l relief it now requests. In this regard it should be noted that the Texas Attorney General has taken extensive discovery from the Applicants, the NRC Staff, and Quadrex Corporation itself, which has fully explored most, if not all, of CCANP's -

claims. Except for the documents produced (which the Attorney l General has apparently agreed to provide to CCANP), CCANP l

was served with all of the discovery responses. Thus, CCANP l

has had the benefit of the thorough and extensive discovery already performed, and has failed to indicate any concrete need for additional discovery.

III. Conclusion In short, CCANP had had more than ample opportunity to review the documents related to the issues in this proceeding,

'and to formulate discovery requests. Furthermore, its failure to submit even a single discovery request cannot be justified on the basis of the grounds asserted, and no actual need for the requested extension has been demonstrated.

CCANP has, therefore, failed to demonstrate good cause for an extension of discovery and its Motion should be denied.

Respectfully submitted, N1e Jack R. NeWhan Maurice Axelrad Alvin H. Gutterman Donald J. Silverman 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Finis E. Cowan 3000 One Shell Plaza Houston, Texas 77002 Dated: November 14, 1983 ATTORNEYS FOR HOUSTON LIGHTING

& POWER COMPANY, Project Manager LOWENSTEIN, NEWMAN, REIS of the South Texas Project acting

& AXELRAD, P.C. herein on behalf of itself and 1025 Connecticut Avenue, the other Applicants, THE CITY OF N.W. SAN ANTONIO, TEXAS, acting by and Washington, D.C. 20036 through the City Public Service Board of the City of San Antonio BAKER & BOTTS CENTRAL POWER AND LIGHT COMPANY, 3000 One Shell Plaza and CITY OF AUSTIN, TEXAS Houston, Texas 77002

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

)

HOUSTON LIGHTING & POWER ) Docket Nos. 50-498 OL COMPANY, ET _AL.

) 50-499 OL

)

(South Texas Project, Units 1 )

and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response to CCANP Motion for Additional Discovery" have been served on the following individuals and entities by deposit in the United States mail, first class, on this 14th day of November, 1983.

Charles Bechhoefer, Esq. Brian Berwick, Esq.

Chairman, Administrative Judge Assistant Attorney General Atomic Safety and Licensing for the State of Texas Board Panel Environmental Protection U. S. Nuclear Regulatory Commission Division Washington, D.C. 20555 P. O. Box 12548, Capitol Station Austin, TX 78711 Dr. James C. Lamb, III Administrative Judge William S. Jordan, III, Esq.

313 Woodhaven Road Harmon E Weiss Chapel Hill, NC 27514 1725 I Street, N.W.

Washington, D.C. 20006 Ernest E. Hill Administrative Judge Kim Eastman, Co-coordinator Lawrence Livermore Laboratory Barbara A. Miller University of California Pat Coy F. O. Box 808,.L-46 Citizens Concerned About Livermore, CA 94550 Nuclear Power 5106 Casa Oro Mrs. Peggy Buchorn San Antonio, TX 78233

-Executive Director Citizens for Equitable Lanny Sinkin Utilities, Inc. 114 W. 7th, Suite 220

' Route 1, Box 1684 Austin, TX 78701 Brazoria, TX 77422

~

.-e-. . .

Robert G. Perlis, Esq. '

Office of the Executive Legal Director U. S. Nuclear-Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board -

U.;S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board U. .S.-Nuclear Regulatory Commission

' Washington, D . C '. 20555 Docketing and Service Section Office of the Secretary U. S. Nuclear; Regulatory Commission Washington, D.C. 20555 W ,

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