ML20133E955

Response Opposing Citizens Concerned About Nuclear Power,Inc 850930 Motion for Extension of Time to Prepare Proposed Findings of Fact & Conclusions of Law.Certificate of Svc Encl

ML20133E955
Person / Time
Site:	South Texas
Issue date:	10/04/1985
From:	Newman J HOUSTON LIGHTING & POWER CO., NEWMAN & HOLTZINGER
To:	Atomic Safety and Licensing Board Panel
References
CON-#485-678 OL, NUDOCS 8510100074
Download: ML20133E955 (6)

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UNITED STATES OF AMERICA DKKETED NUCLEAR REGULATORY COMMISSION O' BEFORE THE ATOMIC SAFETY AND LICENSINgB_gRh0 g :13 In the Matter of ) 0FDCE0?5iLReid,

) OX6EI!NG & SERVKI HOUSTON LIGHTING & POWER COMPANY, ') Docket' bl.H 50-498 OL ET AL. ,

) 50-499 OL

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(South Texas Project, Units 1 )

and 2) )

i APPLICANTS' RESPONSE TO CCANP MOTION FOR EXTENSION OF TIME I

I. Introduction On September 30, 1985, upon receipt of Applicants' Proposed Findings of Fact and Conclusions of Law (Phase II), CCANP served Applicants with a motion for extension of time, seeking an additional two weeks in which to prepare its proposed findings of fact and conclusions of law.1/

For the reasons set forth below, Applicants oppose CCANP's motion.

II. Argument 10 C.F.R. S 2.754(a)(2) provides that, unless otherwise authorized by the presiding officer, the proposed findings of a party who does not have the burden of proof must be

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1 CCANP's motion for extension was included in its " Motion for Board Ordered Production of Documents, to Reopen the Record, for New Contention, for Discovery and for Extensions of Time" (September 30, 1985) (Motion). The Board advised Applicants to respond to CCANP's request for an extension separately and no later than October

4. The response to the balance of CCANP's September 30 Motion will be filed later.

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i,, iI filed within 40 days after the hearing record is closed (10 days after the filing by the party with the burden of proof). At the last Phase II hearing session, in recognition l

of the size of the record, the parties agreed upon and suggested to the Board a filing schedule which would have extended

• s the filing time of Applicants and CCANP by over two weeks.

Tr. 15376. After discussion, the Board adopted the proposed filing date for Applicants but extended CCANP's filing date by an additional 10 days until October 21, so that its findings were due 20 days after Applicants and almost a full month after the deadline set in the regulation. Tr. 15381. The schedule set by the Board reflected CCANP's concern that, while it " fully expect [ed) to have . . . [its] findings done by September 30th" (Tr. 15378), some additional time might be necessary for modifications necessitated by its consideration of Applicants' proposed findings (Tr. 15380-81).

These two extensions thus granted CCANP almost a month beyond the period provided in the regulation.

In requesting yet a further extension, CCANP has not shown " good cause",beyond the simple statement that it " lost" two weeks analyzing the Sol Levy, Inc. (SLI) report in preparation of its motion to reopen the Phase II record. Motion at

21. That casual self justification does not meet the " good cause" standard of the Commission's regulations. 10 C.F.R. 5 2.711(a). Cf,. Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 and 2) LBP-79-16, 9 NRC 711, 714

1 (1979); Schroeder v. Federal National Mortgage Assoc., 574 F.2d 1117 (1st Cir. 1978).

The Board provided ample time for CCANP to prepare its proposed findings by setting a schedule considerably more liberal than that provided by the regulations, and a

than initially agrebd upon by CCANP. CCANP chose to utilize part of the additional time afforded by the Board to prepare another pleading, and thereby made its task more difficult.

That, however, is CCANP's election. No party may unilaterally place itself in a position where it cannot meet its obligations to the Board, and then plead for relief on the basis of that self-imposed burden. Cf. Northern Indiana Public Service Cct. (Bailly Generating Station, Nuclear-1), ALAB-204, 7 AEC 835, 837 (1974).

When CCANP began to prepare its Motion, knowing that such task would utilize the time amply allotted by the Board for preparing findings, it obviously relied upon its ability to later convince the Board to grant an extension. The proper course would have been, at that time, to inform the Board of what CCANP apparently viewed as two conflicting tasks and let the Board decide whether the filing of findings could be delayed, or the filing of the new motion could be delayed, or neither. Had CCANP done so, the other parties could then have been heard on the question and relief, if any, might have been fashioned in a manner fair to all parties and consistent with the Board's responsibility for timely decision-making.

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7 The Commission's regulations emphasize that NRC proceedings

.. should be conducted expeditiously. 10 C.F.R. Part 2, Appendix A. In this case, the timeliness of the Board's decision is extremely important. The issues heard in Phase II are serious and have 'been the subject of significant media interest.

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Their timely resolution is important not only to'the co-owners of the South Texas Project, but to the people in their service areas who are awaiting the Board's decision.

III. Conclusion No good cause for the extension having been shown, the public interest in fair and timely decision making compels denial of the motion.

Respectfully submitted, A

ack R. Newman l'[

Maurice Axelrad Alvin H. Gutterman Donald J. Silverman 1615 L Street, N.W.

Washington, D.C. 20036 Finis E. Cowan 3000 One Shell Plaza Houston, Texas 77002 Dated: October 4, 1985 NEWMAN & HOLTZINGER, P.C. ATTORNEYS FOR HOUSTON LIGHTING 1615 L Street, N.W. & POWER COMPANY, Project Manager Washington, D.C. 20036 of the South Texas Project acting herein on behalf of itself and the other Applicants, BAKER & BOTTS The City of San Antonio, CENTRAL 3000 One Shell Plaza POWER AND LIGHT COMPANY, and Houston, TX 77002 CITY OF AUSTIN, TEXAS

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

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HOUSTON LIGHTING &' POWER COMPANY, ) Docket Nos. 50-498 OL ET AL.~ *

) 'N 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 Extension Of Time" have been served on the following individuals and entities by deposit in the United States mail, first class, postage prepaid, or by arranging for delivery as indicated by asterisk, on this 4th day of October, 1985.

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 Division Commission .

P.O. Box 12548, Capitol Station Washington, D.C. 20555 Austin, TX 78711 Dr. James C. Lamb, III Kim Eastman, Co-coordinator Administrative Judge Barbara A. Miller 313 Woodhaven Road Pat Coy Chapel Hill, NC 27514 Citizens Concerned About Nuclear Power Frederick J. Shon* 5106 Casa Oro Administrative Judge San Antonio, TX 78233 U.S. Nuclear Regulatory Commission Lanny Alan Sinkin*

Washington, D.C. 20555 3022 Porter St., N.W., #304 Washington, D.C. 20008 Mrs. Peggy Buchorn Executive Director Ray Goldstein, Esq.

Citizens for Equitable Gray, Allison & Becker Utilities, Inc. 1001 Vaughn Building Route 1, Box 1684 807 Brazos Brazoria, TX 77422 Austin, TX 78701-2553

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Oreste Russ Pirfo, Esq.*

-Robert G. Perlis, Esq.

Office of the Executive Legal ,

Director U.S. Nuclear. Regulatory Commission

Washington, D.C. 20555

! Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission

• Washington, D.C. 20555 Atomic Safety and Licensing Appeal 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

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