ML17138A985
| ML17138A985 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 12/06/1979 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | Environmental Coalition on Nuclear Power |
| References | |
| NUDOCS 7912170262 | |
| Download: ML17138A985 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISS ION pe gO<yC ATOMIC SAFETY AND LICENSING BOARD qi9 g
$~Q
+0 gx%+ gh>~4 Charles Bechhoefer, Chairman Dr. Oscar H. Paris, Member Glenn 0. Bright, Member In the Matter of PENNSYLVANIA POWER 6c LIGHT COMPANY and ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam Electric Station, Units 1 and 2) 3
)
Docket Nos.
50-387
)
50-388
)
)
)
)
ORDER DENYING RE UESTS OF ECNP Decem er On November 19,
- 1979, ECNP, an intervenor in this operating license proceeding, filed a paper titled "Intervenors'esponse to Licensing Board Memorandum and Order of October 30, 1979."
(It was not received by. us until November 27, 1979.)
In that
- document, ECNP (1) complains that we have not responded to its September 17, 1979 request for a protective order; (2) argues that the pending discovery requests against 'it are unduly burden-
- some, amounting to harrassment; (3) seeks reconsideration of our Memorandum and Order of October 30, 1979, stating that it afforded ECNP relief in but one limited respect; (4) states that its obli-gations in other NRC proceedings prevent it from complying with our October 30, 1979 Order, which required responses to certain discovery requests to be filed by December 14, 1979; and (5)
/
2-seeks certification of a number of questions related to discov-ery and to the composition of the Board designated to rule on these operating license applications.
V The Applicants and Staff each oppose ECNP's various requests.
For reasons hereinafter stated, we find ECNP's filing to be dis-
'espectful in tone, inaccurate and misleading in content, and frivolous in all respects.
We accordingly deny ECNP's requests in their entirety.
However, in view of the advice provided by the Staff that publication of the FES has again been delayed, we extend the time for all parties to respond to discovery requests on environmental contentions from December 14-,
1979 to January 18, 1980.
1.
The issuance about which ECNP is now complaining is our Memorandum and Order on Di.scovery Motions (II), LBP-79-31, 10 NRO (October 30, 1979).
In that opinion, we responded to a number of motions relating to discovery filed by various parties, including ECNP, and we granted considerable relief to all of the intervenors, but particularly to ECNP.
ECNP asserts first that we have failed to respond to its request for a protective order, dated September 17, 1979.
We assume ECNP is referring to a document bearing that date. titled "Responses of ECNP Intervenors'o Board Memorandum and Order Compelling Intervenors to Answer Applicant and Staff Interroga-tories."
Our October 30 opinion explicitly responded to those
requests of ECNP, granting them in part and denying them in part (see slip op., pp.
3, 7-8).
It is true that, instead of deter-mining whether each particular interrogatory or discovery request should be answered, we premised our ruling on whether or when certain classes of discovery should be answered.
But that approach was dictated in part by the blanket refusal of ECNP and other, intervenors to respond to discovery because of the burden of doing so.
ECNP offered no specific comments whatsoever with regard to any of the Applicants'iscovery requests outstanding against it.
Nor does it do so now.
We note that the Appeal Board long ago held that, when confronted with an all-encom'passing indiscriminate claim of
- burden, a licensing board would be "justifi.ed in rejecting the claim in its entirety upon a finding of lack of merit [of such a claim of burden] with respect to at least one of the discovery items."
Consumers Power Co.
(Midland Plant, Units 1 and 2),
ALAB<<122, 6
AEC 322, 325 n.
14 (1973).
Taking the Applicants'ery first interrogatory,-
we find no undue burden in responding to that inquiry.
We pointed out in our October 30, 1979 opinion that blanket general objections to discovery such as were then being 1/
1A-1.
Describe each aspect in which you contend the assess-ment of the quantity of radon-222 to be released during the fuel cycle for the Susquehanna facility is inadequate.
advanced would normally not be sufficient to warrant granting relief.
Nevertheless, in view of other circumstances, we granted all the intervenors considerable relief from the then-outstanding discovery requests.
ECNP now states that The sole lessening of the enormous burden stilt upon the necks of the Intetvenots is that they are not now required to answer interrogatori.es concerning other.
intervenors'ontention (sic].
[Emphasis supplied.]
This statement is manifestly untrue.
For not only did we relieve intervenors of the obligation of responding to discovery on other intervenors'ontentions, we also (1) limited discovery obliga-tions in the near future to those relating to environmental con-tentions then scheduled to come to hearing in the spring of 1980 (and, conversely,, deferred indefinitely any obligations with respect to discovery on health and safety contentions);
(2) ex-tended the time for such responses; and (3) asked the Staff to make arrangements designed to facilitate the access of intervenors (particularly ECNP) to information relevant to their contentions.2/
(In that connection, we note that, by letter dated November 15, 1979, the Staff forwarded some 16 documents to ECNP.)
2/
The Staff points out that our Order had the effect of reducing the number of contentions on which ECNP now has to respond to interrogatories by 72 percent, and reducing the total number of contentions on which ECNP must respond by 44 percent.
Either ECNP did not read our October 30, 1979 opinion or it is deliberately misstating our holding in order to obtain further relief.
In either case, ECNP's latest filing casts considerable doubt upon that organization's desire or ability to contribute to the substantive resolution of the issues it has raised in this proceeding.
- Moreover, when viewed against the dis-covery obligations remaining to be satisfied by the date specified in our October 30 opinion (December 14, 1979),
ECNP's claims of unfairness and "enormous burden" have a hollow ring.
The environmental hearing is now limited to the 8 con-tentions listed in our October 30, 1979 opinion.
Only 5 of those are sponsored (in whole or in part) by ECNP.
ECNP need respond only to outstanding discovery requests which it has not previously answered adequately and which relate to those contentions (or portions of those contentions) which it is sponsoring.
- Moreover, as we have previously stressed, ECNP need only supply information in its possession; it need do no independent research to respond to the discovery requests.
In fact, the requests. directed to it ask little more than a-specification of the information and sources of information (witnesses, documents,
- studies, etc.)
upon which ECNP is basing its contentions.
ECNP in effect is seeking to avoid all dis-covery obligations, contrary to the clear intent of the NRC Rules of Practice.
But it has provided no sound basis for such a result.
Indeed, prior to hearing the Applicants and Staff are entitled
to information of the type they are seeking.
Moreover, if ECNP is still in the process of developing information for its case, it can so state (subject, of course, to the updating require-ments which we outlined in our October 30, 1979 opinion).
ECNP also claims that it is actively engaged in other Commission proceedings and thus cannot devote time to discovery in this proceeding.
If that be so, perhaps the organization has spread itself too thin and should not be attempting to participate in all of those proceedings at once.
In our October 30, 1979
- opinion, we acknowledged that we could take into account obliga-tions imposed in other proceedings in establishing schedules for this proceeding.
But we have been presented with nothing more than blanket claims of. burden with respect to all of the pro-ceedings.
We have found little credence with respect to the current claims of ECNP in this proceeding
- and, absent any spec-ificity, we are not inclined to regard ECNP's burdens in the other proceedings as insuperable.
In that connection, we note that the discovery requests in question were filed in May, 1979, and that ECNP advised us (in its September 17, 1979 filing) that one of its two representatives was outside the United States for personal reasons fr'om late June until September 3,
1979.
Although 3/ If ECNP would devote less effort to the filing of motions such as the one before us (which runs some 13 pages), it likely would be able to fulfillits discovery obligations.
we have no control over the personal lives of ECNP's represen-tatives, it is unfair to other parties to permit the personal propensities of the representatives of any party to dictate the scheduling of this proceeding to any substantial degree.
For these
- reasons, ECNP's requests for a protective order and for reconsideration of our October 30, 1979 Memorandum and Order are denied.
2.
ECNP's requests for certification fall into two cate-gories.
The first concerns the propriety of our discovery rulings and is a subject as to which interlocutory review is hormally inappropriate.
See the Appeal Board's recent ruling to that etiect in this very proceeding, ALAB-S63, 10 NRC (September 19, 1979) and cases there cited.
The questions presented by ECNP here are no more worthy of interlocutory review than those presented by CAND in ALAB-563.
The other requests con-cern the composition of this Board, a matter over which the Appeal Board has no authority.
(Certification may not be had from the Licensing Board to the Commission.
10 CFR
$ 52.718(i) and 2.785(b)
~ )
I'oreover, to the extent ECNP may be deemed to be seeking our dis-qualification because of bias, the requisite affidavits have not 4/
See also Pu et Sound Power 6 Li ht Co. (Skagit Nuclear Power Pxoject,=Units an
, ALAB-5 NRC (November 20, 1979).
been provided.
See Dair land Power Coo erative (LaCrosse Boiling Water Reactor),
ALAB-497, 8 NRC 312, 313-14 (1978).
Nor has a
satisfactory basis for such a request been provided.
The certi-fication requests are accordingly denied.
3.
One brief note on the language employed by ECNP is in I
order.
The intemperate nature of much of that language, together with the gross errors included in ECNP's statements, must inevi-tably lead to a belief that ECNP's participation in this proceeding is purely obstructionist and not designed or intended to achieve answers to the questions it has raised.
We remind ECNP that, even though it is not represented by an attorney, its representatives r
are nevertheless expected to adhere to reasonable standards of conduct.
Metro olitan Edison Co.
(Three Mile Island Nuclear Station, Unit 2), ALAB-474, 7 NRC 746, 748-49 (1978); cf. Houston Li htin and Power Co.
(South Texas Project, Units 1 and 2),
LBP-79-10, 9
NRC 439, 457-58, 460-61 (April 3, 1979).
The filing of bald and unsubstantiated charges against the Board (or any party) does not fulfillthese obligations.
Tf this approach to this proceeding persists, we will have no alternative other than to dismiss ECNP (although we may well consider some or all of its issues sua ~scute).
In addition, as we held in our October 30, 1979 Memorandum and Order, if ECNP fails to respond properly to the outstanding discovery requests, it will not be permitted to present a direct case on its contentions.
4.
Simultaneously with its response to ECNP's motions, the Staff advised us that publication of the FES for this facility has again been delayed and will not be published until April, 1980.
In that circumstance, a modest delay in discovery with respect to the environmental contentions would not be unreasonable.
Therefore, our October 30, 1979 Order is modified to extend from December 14, 1979 to January 18, 1980 the time within which discovery requests on environmental contentions must be answered.
FOR THE ATOMIC SAFETY AND LICENSING BOARD ar es Bechhoe er C airman Dated at Bethesda,
- Maryland, this 6th day of December, 1979.