ML13304A631
| ML13304A631 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 08/11/1980 |
| From: | Chandler L, Davis L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8008130401 | |
| Download: ML13304A631 (9) | |
Text
UNITED STATES OF AMERICA 8/11/80 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of 3
SOUTHERN CALIFORNIA EDISON COMPANY, Docket Nos. 50-361 OL ET AL.
3and 50-362 OL (San Onofre Nuclear Generating
)
Station, Units 2 and 3)
)
NRC STAFF MEMORANDUM IN RESPONSE TO INTERVENORS' MEMORANDUM REGARDING TIMETABLE FOR DISCOVERY I. Introduction Pursuant to the instructions of the Atomic Safety and Licensing Board (Licens ing Board).!/ at the Prehearing Conference held on July 17, 1980,1/ on July 28, 1980, Intervenors Friends of the Earth (FOE) et al.-/ submitted a Memorandum regarding the timetable for discovery on the seismic/geologic and emergency planning issues-/ in this case.-5 Briefly summarized, Intervenors maintain 1/
Ir. 270.
2/
Notice and Order for Prehearing Conference dated June 24, 1980, 45 Fed.
Rea.
45429 (July 3, 1980).
3/ The other joint Intervenors are Mr. and Mrs. August Carstens and, Mr.
and Mrs. Lloyd von Haden, Mr. Donald May, and Mrs. Donis Davey. No memorandum has been received from the other Intervenor, GUARD.
4/ The timetable for emergency planning discovery was to have been addressed initially by the Applicants in a separate memorandum. Tr. 272. However since the Intervenors have addressed that issue in their memorandum, the Staff will also address the issue herein. See Licensing Board Memorandum and Order on Prehearing Conference of July 17, 1980 dated August 8, 1980 at 7.
/ The Intervenors' Memorandum was not received by the Staff until Monday, August 4, 1980.
8oo 8 1s04) 304
-2 that because of the complexity of the seismic issue and the existence of new and possibly unreviewed data, "discovery as to seismic/geologic issues should not be closed until 30 days after the ACRS has accepted and approved the Final Staff supplement to the Staff S.E.R..I 6/
In regard to emergency planning, Intervenors assert that "discovery should not be closed until 30 days after the applicant and the state and applicable local jurisdiction[s]
submit their emergency plans which meet the requirements of NUREG-0654 "Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants; NUREG-0585, "TMI Lessons Learned Task Force Final Report," P. A-9 #4; NUREG-0694, "TMI Related Requirements for New Operating Licenses," P. 20 Sec. III A.1.2, P. 25 sec III A.1.1. (which requires performing an emergency reponse exercise before issuance of a fullpower license) and 10 C.F.R. Part 50 as finally adopted.-/
The following is the Staff's response regarding the discovery schedule pro posed by the Intervenors, FOE et al.
6/ Intervenors' July 28, 1980 Memorandum Regarding Timetable for Discovery (hereafter, Memorandum) at 1.
7/ Memorandum at 1. The Staff assumes Intervenors' last citation to Part 50 refers to pending revisions to Appendix E to 10 C.F.R. Part 50.
See 44 Fed. Req. 54308 and 44 Fed. Reg. 75167.
-3 II.
Discussion A.
Applicable Law In regard to discovery cutoff dates, the Commission's discovery regula tions8/ in the form of 10 C.F.R. Section 2.740(b)(1), provide that in an operating license proceeding "no discovery shall be had after the beginning of the prehearing conference held pursuant to § 2.752 except upon leave of the presiding officer upon good cause shown." The Section 2.752 prehearing conference is that prehearing conference where the final specification of issues, identification of witnesses and hearing schedule are set and is required to be held "within sixty (60) days after discovery has been com pleted,2/ or such other time as the Commission or the presiding officer may specify."
Until that point in the proceeding is reached, caselaw recognizes that modern administrative and legal practice, including NRC practice, requires that liberal pretrial discovery be granted to enable the parties to ascertain the facts in complex litigation, refine the issues, and prepare adequately for a more expeditious hearing or trial.
Pacific Gas & Electric 8/ In general, the discovery rules as between all parties except the Staff follow the form of the Federal Rules of Civil Procedure. The legal authorities and court decisions pertaining to Rule 26 of the Federal Rules of Civil Procedure provide appropriate guidelines for interpreting NRC discovery rules. Allied-General Nuclear Services et al. (Barnwell Fuel Receiving and Storage Station), LBP-77-13, 5 NRC 489 (1977).
9/ A footnote to the rule provides that "Discovery, as used in this section, does not include the production of the ACRS report, the safety evaluation prepared by the staff, or any detailed statement on environmental consider ations prepared by the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate or his designee in the proceeding pursuant to Part 51 of this chapter."
-4 Company (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038, 1040 (1978).
For that reason, at this stage in the proceeding, the Staff believes that every effort should be made to provide information needed by Intervenors and other parties to litigate the admitted contentions in this proceedingl1f so that a proper and expeditious hearing schedule can be set pursuant to Section 2.752.
B. The Seismic/Geologic Discovery Schedule As noted by the Intervenors, the seismic/geologic review of the San Onofre Unit 2 and 3 site has been complex thus far because of the need to investi gate, inter alia, the effects of data from the Imperial Valley Earthquake and the geological relationship between the Cristianitos Fault and offshore fault zones. Because it is difficult to predict in advance how the reporting of this review will occur in this case, in general the NRC Staff believes that the Intervenors should have, as they have requested, 30 days for dis covery after the issuance of any Staff SER or SER Supplement containing new information on geology or seismology. This discovery period would encompass any "new information" contained in any SER Supplement issued in response to ACRS comments on the geological/seismological information presented to that body. However, the NRC Staff does not believe that the geological/seismologic discovery provision of "thirty days after the ACRS has accepted and approved the Final Staff Supplement to the Staff SER" proposed by Intervenors is 10/ The seismic and emergency planning contentions under discussion were admitted by the Licensing Board in its Memorandum and Order dated January 27, 1978.
-5 needed. In the Staff's view, approval of the SER by the ACRS would involve no new information and therefore would not invoke a need for 30 days discovery.
Any adverse comments by the ACRS would require another Staff safety report to that body and thus discovery would proceed in accordance with the provi sions discussed above.
C. Emergency Planning Discovery Intervenors' proposal for emergency planning discovery states that discovery should not be closed until 30 days after the Applicants, State and local jurisdictions submit their emergency plans which meet the requirements of NUREG-0654, NUREG-0585, NUREG-0694 and 10 C.F.R. Part 50 as finally adopted (presumably the new emergency plan requirements of 10 C.F.R. § 50.47 and Appendix E thereto which were noticed in 44 Fed. Req. 54308 and 44 Fed. Reg. 75167).
Intervenors' proposal is objectionable in two respects.
First, Intervenors' proposal would require the Licensing Board, in the process of ruling on discovery, to decide at some point in advance of the hearings whether the submitted plans comply with applicable regulations, a task which would be premature at that point since that is the duty of the Licensing Board at a contested evidentiary hearing. Rather than include this provision in the discovery ruling, the Staff submits that a better procedure to follow, if Intervenors contend that the plans do not comply with applicable regulations, would be for them to litigate this issue at the hearings instead of making compliance with asserted regulatory requirements a condition precedent to ending discovery.
-6 Second, the conditions proposed by the Intervenors presume that the Appli cants must comply with what they appear to see as set specific Commission emergency plan requirements, those which they apparently believe relate to the requirements for full power operation. However, if instead of a full power operating license, Applicants were to apply for a low power testing license, their emergency plan would be judged under a different set of criteria. The latest set of emergency planning criteria is currently con tained in NUREG-0694, entitled "TMI Related Requirements for New Operating Licenses" (June, 1980), which is made applicable to low power testing and full power operation Applicants by the Commission's newly-issued "Statement of Policy for Further Commission Guidance for Power Reactor Operating Licenses, 45 Fed. Reg. 41738 (June 20, 1980). In that regard, one should compare the full power emergency requirements contained in Section III.A.1.2 of NUREG-0694 at 25 with the low power testing emergency requirements contained in Section III.A.1.1 at page 19 and note, for instance, that local emergency plans are not required for a low power test license.
Since there is the possibility that the Applicants may seek one of these two possible licenses which have separate emergency planning requirements, the NRC Staff believes this to be an additional reason for not keying discovery to submission of documents complying with any specific set of regulatory requirements.
For the reasons listed above, the NRC Staff submits that the better course to follow as to emergency plan discovery would be to allow the Intervenors 30 days for discovery following submission of Applicants' emergency plan if
-7 a low power test license is applied for, and to allow 30 days for discovery following the submission of any emergency plans needed when a full power operating license is applied for. In no event does the Staff believe the cutoff of discovery should be conditioned upon compliance with the criteria suggested by the Intervenors since the issue of compliance with applicable criteria will be a main topic for resolution on the basis of the record compiled at the radiological health and safety hearing.
III.
Conclusion For the foregoing reasons, the NRC Staff believes that seismic/geologic discovery should be ended 30 days following the submission of any new infor mation contained in the Staff Safety Evaluation Report, or Supplement thereto, on the subject in question. Emergency planning discovery should be ended 30 days after submission of the Applicants' emergency plan for San Onofre Units 2 and 3 if a low power test license is sought and 30 days following submission of all necessary emergency plans when a full power operating license is sought.
Respectfully submitted, L. Dow Davis, IV Counsel for NRC Staff Lawrence J. Chandler Counsel for NRC Staff Dated at Bethesda, Maryland this 11th day of August, 1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
SOUTHERN CALIFORNIA EDISON COMPANY,
)
)
50-362 OL (San Onofre Nuclear Generating Station, )
Units 2 and 3)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF MEMORANDUM IN RESPONSE TO INTER VENORS' MEMORANDUM REGARDING TIMETABLE FOR DISCOVERY" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 11th day of August, 1980.
Ivan W. Smith, Esq.., Chairman*
David R. Pigott, Esq.
Atomic Safety and Licensing Board Samuel B. Casey, Esq.
U. S. Nuclear Regulatory Commission Chickering & Gregory Washington, DC 20555 Three Embarcadero Center Twenty-Third Floor Dr. Cadet H. Hand, Jr., Member San Francisco, CA 94111 Director, Bodega Marine Laboratory University of California Alan R. Watts, Esq.
P. 0. Box 247 Rourke & Woodruff Bodega Bay, CA 94923 10555 North Main Street Suite 1020 Dr. Emmeth A. Luebke, Member Santa Ana, CA 92701 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Richard J. Wharton, Esq.
Washington, DC 20555 Wharton and Pogalies 2667 Camino Del Rio South Janice E. Kerr, Esq.
Suite 106 J. Calvin Simpson, Esq.
San Diego, CA 92108 Lawrence Q. Garcia, Esq.
California Public Utilities Commission Mrs. Lyn Harris Hicks 5066 State Building GUARD San Francisco, CA 94102 3908 Calle Ariana San Clemente, CA 92672 Charles R. Kocher, General Counsel James A. Beoletto, Esq.
David W. Gilman Southern California Edison Company Robert G. Lacy 2244 Walnut Grove Avenue San Diego Gas & Electric Co.
Rosemead, CA 91770 P.O. Box 1831 San Diego, CA 92112
-2 Phyllis M. Gallagher, Esq.
Atomic Safety and Licensing Board 1695 West Crescent Avenue Panel*
Suite 222 U.S. Nuclear Regulatory Commission Anaheim, CA 92701 Washington, DC 20555 A. S. Carstens Secretary 2071 Caminito Circulo Norte U.S. Nuclear Regulatory Commission Mt. La Jolla, CA 92037 ATTN:
Chief, Docketing & Service Branch Atomic Safety and Licensing Appeal Panel (5)*
U.S. Nuclear Regulatory Commission Washington, DC 20555