ML20211H392

Consolidated Intervenors Motion to Dismiss Pending Appeal as Moot &/Or for Lack of Jurisdiction & to Immediately Dissolve Order Staying Discovery.Certificate of Svc Encl

ML20211H392
Person / Time
Site:	Comanche Peak
Issue date:	10/31/1986
From:	Ellis J, Roisman A Citizens Association for Sound Energy, GREGORY, M.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#486-1356 CPA, NUDOCS 8611050116
Download: ML20211H392 (5)

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)35 6 00f.XETED USHRC BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION 16 NOV -3 R2:36 Before the Atomic Safety and Licensing Appeal BoardFFCE Ci uue!A; UCCMETING & 9 9Wl.

13R4 Ut In the Matter of )

).

TEXAS UTILITIES GENERATING COMPANY, ) Dkt. Nos. 50-445-CPA et al.

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(Comanche Peak Steam Electric )

Station, Unit 1) )

CONSOLIDATED INTERVENORS' MOTION TO DISMISS PENDING APPEAL AS MOOT AND/OR FOR LACK OF JURISDICTION-AND TO IMMEDIATELY DISSOLVE ORDER STAYING DISCOVERY On October 30, 1986, the Licensing Board issued an Order admitting Amended Contention 2iof Consolidated Intervenors.

Memorandum (Motion to Admit New Contentions ~ and for Reconsideration). The admission of this contention moots the pending appeal because the portion of the contention which is the

-subject of the appeal is now replaced by the amended contention.1 The simple fact is that the portion of the original contention which was the subject of the appeal is no longer a contention in this proceeding, although elements of it comprise part of the admitted amended conten' tion and its bases, j Even if a portion of the origina1 contention which is now on

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appeal remains a viable contention in this case, the appeal should be dismissed because granting of the relief requested in

'l That portion of the original contention that challenged TUEC's failure to allege a non-intentional or valid cause for the delay in completion of Unit 1 of CPSES was not appeal 19d, although it was admitted by the Licensing Board. May 2, 1986, Prehearing Conference Order; see CASE and Meddie Gregory's Opposition to i

Appeal of -TUEC and NRC Staf f (5/27/86), pp. 1-4.

( 8611050116 861027 PDR G

ADOCK 05000445 PDR 1 g/ g

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.. s the appeal would not dispense with a need for the CPA hearing and thus pursuant to .10 CFR 32.714a.this Board lacks jurisdiction to entertain the appeal.

Since tnere is no longer a valid appeal pending, the basis for the grant of a stay of discovery, which has remained in effect for four months, no longer exists. We request immediate lif ting of the stay, since we have already lost four valuable months of discovery time in a case whose substantive issues are increasingly vulnerable to mootness due to the passage of time.2 To avoid f urther unnecessary. delay, we urge the Board to make clear in its order that responses to discovery are to be received based on the time schedule set forth in the June 6,1986 Licensing Boaro Order and with the time remaining that existed as of ' Ju ly 2, 1966, when the stay was granted.- Should TUEC believe a new stay of discovery is warranted, it should h~ ave to file the necessary pleading and make the arguments required to prevail on a stay request.

2 The sta'y was automatically aissolved by its terms on September 19, when the Commission issued its order responding to this Boaro's certified question. Appeal Board Memroandum and Order, J u ly 2, 1986, p. 11. TUEC apparently does not agree since even if the time to answer aiscovery were aeemed to have begun to run when the order was issuea (and not the time set by the Licensing Boaro in its Oroer of. June o, 1986) TUSC should have responded by now or filed a request for granting a new stay. It is apparent that an attirmative order of this Board is necessary to spur TUEC into action.

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l Respectfully submitted,

/fA ANTHONY Z. /O

/F-MK(

NW ,' # 611 2000 P StMe Washington, .' C . 20036

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( 463-8600 Counsel for Meddie Gregory 1 ,

4 J ITA ELLIS South Polk as, TX 75224 (214)946-9446 Representative for CASE i

Dated:- October 31, 1986 4

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300 EllU UNITED STATES u9FC NUCLSAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Bger M ~~3 In the Matter of )

gFFg- ., Laiv' P'UCL TEXAS UTILITIES GEN 8 RATING COMPANY, ) Dkt. Nos. 50-445-CPA et al. )

)

(Comanche Peak Steam Electric )

Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that cop'ies of CONSOLIDATED INTERVENORS' MOTION TO DISMISS PENDING APPEAL AS MOOT AND/OR FOR LACK OF JURISDICTION AND TO IMMEDIATELY DISSOLVE ORDER STAYING DISCOVERY were served today,. October 31, 1986, by first class mail, or by 4

hand where indicated by.an. asterisk, and by Federal Express where indicated by two asterisks, upon the following:

Administrative Judge Peter Bloch U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Walter H. Jordan 881 West Outer Drive Oak Ridge, TN 37830 1

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l 'Dr. Kenneth A. McCollom 1107 West Knapp Stillwater, OK 74075 81izabeth B. Johnson Oak Ridge National Laboratory P.O. Box X, Building 3500-Oak Rioge, TN 37830 Nicholas Reynolds, Esq.

l Bisnop, Liberman, Cook, 1 Purcell & Reynolds 1200 17th Street, NW Washington, D.C. 20036 1

1 1 j t

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Docketing & Service Section Office.of tne Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Geary S. Mizuno, Esq.

Of fice of 8xecutive Legal Director U.S. Nuclear Regulatory Commission 7735 Ola Georgetown Road, 10th floor Washington, D.C.. 20d55 Thomas G. Dignan, J r.

Ropes & Gray 225 Franklin Street Boston, MA 02110 Alan S. Rosentnal, Chairman Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 205s5 Dr. W. Reed Johnson Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l 'fhohas S. Moore, .Esq.

Atomic Safety & Licensing Appeal 33ard U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l / Cs.

' ANTHO / '. OISMKN- -~ ..*

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