ML20248D265

Licensee Response in Opposition to Intervenors Motion for Extension of Time & Motion to Revise Hearing Schedule.* Intervenors 890911 Motion Does Not Demonstrate Good Cause & Should Be Denied.W/Supporting Info & Certificate of Svc

ML20248D265
Person / Time
Site:	Turkey Point
Issue date:	09/27/1989
From:	Reis H FLORIDA POWER & LIGHT CO., NEWMAN & HOLTZINGER
To:	Atomic Safety and Licensing Board Panel
References
CON-#489-9238 OLA-4, NUDOCS 8910040177
Download: ML20248D265 (11)

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-+ COLMETED yy UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket Nos. 50-250 OLA - 4 FLORIDA POWER & LIGHT COMPANY ) 50-251 OLA - 4

) . ..

(Turkey Point Plant, Units 3 and 4) ) (P/T Limits)

)

LICENSEE'S RESPONSE IN OPPOSITION TO INTERVENERS' MOTION FOR EXTENSION OF TIME AND MOTION TO REVISE HEARING SCHEDULE Pursuant to 10 CFR 2.711, Joette Lorion and the Center for Nuclear Responsibility (collectively referred to herein as

" Interveners") have filed a " Motion For Extension Of Time And "otion To Revise Hearing Schedule" (Interveners' Motion) in the above captioned proceeding. Interveners' Motion seeks a two week er. tension to respond to " Licensee's Motion for Summary Disposition of Interveners' Contentions", dated September 11, 1989, and a two month extension of the hearing schedule. Florida Power & Light Company (FPL or Licensee) hereby submits its response in opposition to Interveners' Motion.

Under 10 CFR 2.711(a), a party that desires to extend the specified time for performing an act must demonstrate good cause.

The Conunission has advised the licensing boards "to satisfy themselves that the 10 CFR 2.711 ' good cause' standard for adjusting times fixed by the Board or prescribed by Part 2 has 8910040177 890927 PDR ADDCK 05000250 o PDR gg

actually been met before granting an extension of time."

Statement of Policy on Conduct of Licensing Proceedings, CLI 8, 13 NRC 452, 454 (1981). Licensee submits that Interveners' Motion has failed to make a showing of good cause for the requested extenzions of time.

The extensions requested would modify a schedule adopted by this Board pursuant to an agreement entered into.by all of the parties. The Interveners' requests for changes in the schedule are not the result of unanticipated developments or hardships which might ordinarily justify some modification. To the contrary, Interveners' Motion discloses that one of the principal bases for the requests for delay is Intervenor Lorion's choice to subordinate her activities in connection with this proceeding to other activities. Therefore, Interveners' Motion should be denied.

Interveners' Motion identifies three reasons that purportedly constitute " good cause" for an extension. First, as a basis for requesting an extension of time for responding to Licensee's motion for summary disposition and for extending the hearing schedule by two months, Interveners' Motion asserts that other professional obligations and responsibilities have interfered with Interveners' efforts to meet the established deadlines. Such an excuse does not constitute " good cause." As the Commission has stated:

I While a board should endeavor to conduct the proceeding in a manner that takes account of the special circumstances faced by any participant, the fact that a party may have l l

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personal or other obligations or possess fewer resources than others to devote to the

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proceeding does not relieve that party of its hearing obligations.

Id. see'also Texas utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-82-18, 15 NRC 598,

.599 (1982). Similarly, in an analogous situation involving " good cause" for an untimely intervention petition, the Appeal Board noted:

Although we are told that at that time domestic and other responsibilities occupied her full attention, and thus precluded her pursuit of then available information pertaining to the facility, that scarcely can be taken to constitute an adequate reason for permitting her to enter the proceeding as it approaches the terminal point of licensing board consideration. Most persons in our .

society are confronted with many and varied demands upon their time. The practical s

effect of acceptance of petitioner's explanation therefore would be free license to make the timing of an intervention petition a matter wholly dictated by personal convenience. The contemplation of the Commission's Rules of Practice is clearly otherwise. Nor could any adjudicatory process function effectively, if at all, in such circumstances.

Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3),

l ALAB-440, 6 NRC 642, 644 (1977) (footnote omitted). See also Puget Sound Power and Light Co x (Skagit Nuclear Power Project, LUnit 1 and 2), LBP-79-16, 9 NRC 711, 714 (1979) (" preoccupation with other matters" does not constitute " good cause" for an untimely petition to intervene). Thus, Interveners' activities outside of this proceeding are not a sufficient basis for a finding of " good cause" for an extension of the deadlines in this

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proceeding, and' Interveners' Motion should be denied to the extent it is predicated on this-basis.

Second, as another basis for requesting an extension oi time to respond to Licensee's motion for summary disposition, Interveners' Motion states that Interveners have sought through discovery "information concerning' Turkey Point's' operating and loading history," that counsel for Licensee has. informed Interveners that such information is not kept in an abbreviated fashion on computer sheets, and that the Interveners will be forced to research numerous documents in order to obtain this information. Such an excuse does not constitute " good cause" for an extension. Interveners waited until the last day to file their first and only discovery request. 1/ In contrast, the i

. Licensee submitted its response to the Interveners' document request 14 days earlier than required by 10 CFR S 2.741(d). 2/

In such circumstances, it can hardly be claimed that " good cause" for extension exists-in order to allow Interveners more time to evaluate Licensee's response to Interveners' discovery requests.

As the Appeal Board noted in a similar case where an intervenor did not conduct discove.< / until late in the proceeding and the

' licensee responded quickly:

In these circumstances, where the intervenor failed to utilize the discovery procedures available to it until the eleventh hour, the 1/ Sni " Interveners' First Set of Discovery Requests to Licensee" (August 7, 1989).

2/ See " Licensee's Response to Interveners' First Set of Discovery Requests to Licensee" (August 28, 1989).

F Licensing Board'c denial of [intervenor's]

motion to delay the proceeding for further discovery was not error.

Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1),

ALAB-696, 16 NRC 1245, 1261 (1982).

In any event, the Interveners' factual allegations are not accurate. Counsel for Licensee did inform Interveners that

" computer sheets" on the operating and loading.. history, which Licensee understands were requested by Interveners in order to obtain information on the total number of reactor trips, do not exist. However, Licensee's counsel provided the total number of trips for each unit to the Interveners in a letter dated September 20, 1989 (attached). As this letter demonstrates, the Interveners have not been " forced to research numerous documents" to obtain the information they want on reactor trips, and there is no reason to extend any deadlines to permit Interveners to perform such alleged research.

Third, as a second basis for requesting an extension of fne hearing schedule for two months, Interveners' Motion states that Ms. Lorion has been nominated by a state representative for consideration-as a candidate for appointment to une of the upcoming vacancies in the Florida Public Service Commission, that the Governor will not be making such an appointment until November or December 1989, and that "it would seem prudent to delay the hearing until this issue is resolved." However, Interveners' arguments for extending the hearing schedule based on Ms. Lorion's potential nomination to the Florida PSC have been

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l rendered moot. On September 26, 1989, the Florida Public Service Commission. Nominating Council met to select nominees for the two available positions on the Florida PSC and did not select Ms.

Lorion to'be among those recommended to the Governor for appointment. Therefore, Ms. Lorion's potential nomination to the Florida PSC is no longer a possibility.

Finally, it should be noted that Interveners cannot claim f that this proceeding is placing an undue burden upon them. As noted above, the Interveners were one of the parties that sponsored the schedule adopted by the Board. 3/ Thus, their complaints regarding the current schedule are anomalous.

Additionally, there currently is only one contention to be litigated. Furthermore, in response to a discovery request, the Interveners have stated that they have not retained an expert witness. A/ Therefore, the Interveners will not be preparing any expert affidavits in response to Licensee's motion for summary disposition and will not be submitting any expert testimony.

Consequently, it is difficult to understand why the Interveners need more time in light of the limited scope of this proceeding 1

and the apparently minimal case they intend to present.

For the foregoing reasons the Licensee opposes any change in the hearing schedule itself. Similarly, the Licensee opposes the

]

3/ See Letter dated March 13, 1989, from Steven P. Frantz to )

the Licensing Board; Tr. 90. l 1/ " Interveners' Responses to Licensee's First Set of Discovery Requests to the Center for Nuclear Responsibility and Joette Lorion" (August 8, 1989), p. 1.

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requested extension of two weeks to respond to Licensee's motion  !

l for summary disposition, because such an extension would almost inevitably result in an extension of the hearing schedule. In particular, the Licensee notes that the two week extension (until October 20, 1989) sought by Interveners would place a burden on the Licensee and the NRC Staff in preparing and submitting their prefiled testimony by November 27, 1989. 5/ In, essence, the parties would be required to begin and essentially complete preparation of testimony 1) without knowing whether the Board will grant Licensee's motion for summary disposition, aPd 2) if the Board denies the motion, without knowing what specific issues the Board desires to be litigated. 5/ Thus, the requested two week extension to respond to Licensee's motion for summary disposition is inconsistent with the hearing schedule and should not be granted.

5/ It might be possible to accommodate an extension of one week without adversely affecting the hearing schedule.

5/. The Interveners' Motion also states that no party would experience hardship if the hearing were to be delayed. Such a statement ignores the impact on the Licensee associated with the continuation of the uncertainty and risks associated with unresolved' litigation. Furthermore, the public interest is served by having an early resolution of issues. Sgg Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296, 2 NRC 671, 684-85 (1975); Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-277, 1 NRC 539, 547 (1975).

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CONCLUSION For the reasons discussed above, the' Interveners have not

demonstrated " good cause" for an extension under 10 CFR S 2.711.

Therefore, Interveners' Motion for additional time to respond to Licensee's motion for summary disposition and request to extend the hearing schedule should be denied. .

Respectfully submitted, Harold F. Reis Steven P. Frantz Kenneth C. Manne Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036 (202) 955-6600 Co4 Counsel OGhn T. Butler Steel, Hector & Davis 4000 Southeast Financial Center Miami, Florida 33131 (305) 577-2800 September 27, 1989

s Steel llector& Davis

Mumi, fksctla t

! :' *T* September 20, 1989 0 05) 677 2939 Joette Lorion Center for Nuclear Responsibility 7210 Red Road #217 Miami, Florida 33143 RE: Florida Power & Liqht Company (Turkey Point Plant, Units 3 and 4), Docket Nos. 50-250-OLA-4 and 50-2 51-01A-4 (P/T Limits)

Dear Joette:

I am enclosing a copy of a report entitled " Neutron Transport Analyses for Evaluation of Dosimetry Irradiated in Reactor Vessel Cavity for Florida Power & Light Company Turkey Point-Unit 4 Nuclear Power Plant." At the conclusion of your inspection of documents produced by Florida Power & Light Company in my office on September 8, 1989, you esked that I provide a copy of this report to you.

You also asked me to determine if FPL maintains any computer print-outs showing the number of reactor trips for each unit over that unit's lifetime. I have determined that there are no such print-outs regularly produced. However, I have asked FPL to calculate for me the total number of trips for each unit. For Turkey Point Unit 3, there have been 209 trips as of the end of December 1988, and there have been 177 trips at Unit 4 as of'that same date.

My notes reflect that these were the only two outstanding items in response to your discovery request. Please call me if this is not your understanding as well.

Sincerely, ohn T. Butler Enclosure cc: Steven P. Frantz, co-counsel for Florida Power & Light Company Miami Ottos 1200 Norodnige Centre 1 440 Floya' Pahn Way 1200 Corporate f%ae 201 Souri Morwoe 4000 Soutionst f emancud Cweer Wem Palm DeacA ft 334014307 Palm Dancis, il 33480 1200 North Fedwal Hefway TalWiessac, FL 32301 1848 Mamt,il33131 2398 005)CLO 7200 (305) C50-7200 Doca flaton, ft 33432 0 04) 222-4194 005) 577 2000 far 005) CSS 1509 005) 394 5000 For 004) ?f2 6410 l'ax. (305) 3'2B 1410 l'ax (105) 394-48%

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19 SEP 29 A9 %5 UNITED STATES OF AMERICA

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NUCLEAR REGULATORY COMMISSION ( h,0 dl ..

BEFORE THE ATOMIC SAFETY AND LICENSING BOARDh'" -

In the Matter of )

) Docket Nos. 50-250 OLA - 4 FLORIDA POWER & LIGHT COMPANY ) 50-251 OLA - 4

)

(Turkey Point Plant, ) (P/T Limits),

Units 3 and 4 )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response In Opposition To Interveners' Motion For Extension Of Time And Motion To Povise Hearing Schedule", together with an attachment, were served on the following by deposit in the United States mail, first class, properly stamped and addressed on the date shown below.

B. Paul Cotter, Chairman

• Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Glenn O. Bright

• Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Jerry Harbour

• Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Additional delivery by hand.

i

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, .s- U .

Office'of'the Secretary

"~

U.S'.-Nuclear Regulatory Commission

. Washington,-D.C.: 20555 Attention: Chief,-Docketing and' Service Section c (Original plus two copies)

Jdette Lorion,' Director. .

-Center for, Nuclear. Responsibility 7210 Red Road #217 Miami,-Florida 33143

Janice-Moore LPatricia A. Jehle Office of General. Counsel U.S.-Nuclear Regulatory Commission

. Washington, D.C. 20555 Richard Goddard U.S. Nuclear Regulatory Commission

101;Marietta'St., N.W. #2900 Atlanta, Georgia 30323 John T. Butler Steel, Hector & Davis 4000 Southeast Financial Center Miami, Florida 33131 Dated this 27th day of September 1989

'Kenneth C. Manne Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036 l^

L

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