ML17138B116

Requests to Make Limited Appearance Statement at Licensing Prehearing

ML17138B116
Person / Time
Site:	Susquehanna
Issue date:	02/08/1980
From:	Tamler L AFFILIATION NOT ASSIGNED
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
Shared Package
ML17138B117	List: ML17138B116 ML19294B581
References
NUDOCS 8003050099
Download: ML17138B116 (14)

Text

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CO 0) "~~ P"-OD. 8 UTIL PA0.4'~3 r~O 0 qP P. 0. Box 52 Sybertsville, Pennsylvania 18251 February 8, 1980 Gv Samuel Chilk, Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20555

Dear Mr. Chilk:

I am writing to request time to make a statement at the Licensing Hearings for Pennsylvania.

limited'ppearance Power 6 Light's nuclear plant near Berwick, Pennsylvania.

Please'nform me when and where these hearings will take.'place and when I will be able to speak.

Very truly yours,

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Lola Tamler 8003060

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February 4, 1980 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

PENNSYLVANIA POWER & LIGHT COMPANY )

and ) Docket Nos. +0-3)g ALLEGHENY ELECTRIC COOPERATIVES ) 50-388

)

Steam Electric Station, IN'Susquehanna

)

Units 1 and 2) )

APPLICANTS'OTION TO DISMISS CITIZENS AGAINST NUCLEAR DANGERS FROM THIS PROCEEDING Pursuant to 10 C.F.R. A/2.707 and 2.718, Applicants move the Licensing Board for an order dismissing intervenor Citizens Against Nuclear Dangers ("CAND") as a party for its continued failure to comply with the discovery orders of the Board.

The facts leading up to this motion are as follows.

In its Special Prehearing Conference Order of March 6, 1979 (LBP-79-6, 9 NRC 291), the Board admitted CAND as a party to this proceeding. The Order also set a discovery schedule under which all parties were required to submit their first round discovery requests by May 25, 1979, with responses due by June 29, 1979. 9 NRC at 327.

On May 25, 1979, both the Commission Staff (" Staff" )

and Applicants served interrogatories on CAND. On June 16, 1979 CAND filed a document entitled "Citizens Against Nuclear Dangers'eplies to the Interrogatories of the NRC, Staff and the Applicants and Other Matters" in which CAND provided no answers to the discovery requests and stated that it "categorically object[s] to each and every interrogatory question submitted by the NRC [Staff], and categorically object[s] to each and every interrogatory question submitted by the Applicants." Id. at 3.

On June 27, 1979, Applicants moved to compel dis-covery from CAND; on June 28, 1979, Staff filed a similar motion. On August 24, 1979, the Board issued its Memorandum and Order on Scheduling and Discovery Motions (hereinafter "Discovery Memo I"), in which it examined the reasons advanced by CAND .for refusing to respond to Applicants'nd Staff's discovery requests, found CAND's "refusal to answer questions to be unwarranted", Discovery Memo I at 8, and directed CAND "to respond fully and properly (or as appropriate, to file particularized, specific objections) to the Applicants'nd Staff's discovery requests ... by no later than fourteen (14) days from the date of service of this Order" (i.e., by September 10, 1979). Discovery Memo I at 11.

On September 10, 1979, CAND filed a "Response to the Licensing Board Directive, Contained Within Additional Briefs to the Appeal Board" (hereinafter "CAND Response" ). In this

document, CAND again failed to provide answers to the outstand-ing discovery requests and, instead, indicated that its expert witnesses, if and when selected, would be "advised to promptly answer any of the aforementioned discovery questions in the field that they are expert ... providing the hearing timetable allows." CAND Response at 2. Xn addition CAND announced that it "will also submit concise direct testimony on [its] conten-tions at the public hearings extemporaneously." Id.

Xn view of CAND's continued failure to respond to the discovery requests, notwithstanding the order to do so in Discovery Memo I, Staff moved on September 25, 1979 for the dismissal of CAND and the contentions solely sponsored by it from the proceeding. On October 10, 1979, Applicants filed an answer in support of the Staff's motion.

On October 30, 1979, the Board issued its Memorandum and Order on Discovery Motions (II), LBP-79-31, 10 NRC (hereinafter "Discovery Memo II"). There, the Board observed that the responses filed by CAND and the other intervenors since Discovery Memo I were "the same type of generalized objections which, in Discovery Memo I, we indicated were inadequate." Discovery Memo XI, slip op. at 6. The Board warned that, given the deficiencies in the responses of the intervenors (including CAND) to the discovery requests served by Staff and Applicants, "the relief now being sought by the Applicants and Staff dismissal of CAND, ECNP and SEA (and all their contentions) from this proceeding could potentially be granted..." Id. at 10.

The Board, however, was of the view that "dismissal of any of the intervenors or their contentions at this time would not be warranted." Id. at 11, emphasis added.

Nevertheless, while granting the intervenors one more opportu-nity to comply with its previous Orders, the Board underscored that "it is absolutel necessar that the intervenors respond in a timely fashion to the discovery obligations which still remain." Id., emphasis in original. The Board suspended all discovery obligations with respect to health and safety contentions, granted an extension of time until December 14, 1979 (later extended further to January 18, 1980), for respon-ses to outstanding discovery requests on environmental conten-tions, and once again directed all parties "to respond by December 14, 1979 to the discovery requests on the environmen-tal contentions." Id. at 18-19. The Board ruled that "[i]f any intervenor fails properly to respond in a timely fashion to the discovery as outlined in paragraphs 2 and 3, it will not be ermitted to resent an direct testimon on that contention.

(No further order of this Board to this effect will be re-quired)." Id. at 19. Finally, the Board cautioned that

"[f]ailure to respond properly, in addition to precluding an in'tervenor from presenting direct testimony, ma be rounds for dismissin that intervenor (as distinguished from its conten-tions) from the roceedin . Id. at 20, emphasis in original.

On December ll, 1979, CAND filed its "Citizens Against Nuclear Dangers Petition for a Government Inquiry; Replies to Discovery Order; Motions on Interrogatories Before the Atomic Safety and Licensing Board" (hereinafter "CAND Petition" ), in which CAND purportedly responded to the direc-tives of Discovery Memo II. CAND again provided no responses to the outstanding interrogatories, and this time proposed that in lieu of its replying to the discovery requests, "the Board utilize its extraordinary power of subpoena and pose every applicable specific discovery question formulated by the NRC staff and the Applicants to be answered by the appropriate qualified government official at the state and federal level who have first-hand expert knowledge of these matters in the course of their government service." CAND Petition at 5. CAND offered to "accept these expert factual responses in lieu of their own replies and as the basis for their testimony and accompanying background information." Id,.

On January 4, 1980, the Board issued a "Memorandum and Order Denying CAND Petition and Motions" in which it found the relief requested by CAND "to be unwarranted" and denied it "in its entirety." Id. at l. The Board noted that CAND's December ll, 1979 filing "alternatively must be considered as another deliberate attempt to avoid the obligations of dis-covery." Id. at 1-2, footnote omitted. The Board rejected CAND's request that government officials be subpoenaed and ruled that, even if such officials were to be called to testify

by the Board, "that eventuality would still not relieve CAND of its obligation to inform the parties of the bases for its own contentions." Id. at 3, footnote omitted.

CAND's next filing, dated January ll, 1980, was a "Motion for Reconsideration of Motions before the Licensing Board" (hereinafter "CAND Motion for Reconsideration" ). In this filing, CAND still provided no answers to the outstanding interrogatories, and now alleged that its failure to respond to the discovery requests was due to the refusals by Staff and Applicants (which refusals were upheld by the Board) to furnish CAND free of charge, "one true certified copy of the complete NRC file" and other materials relating to this proceeding.

CAND Motion for Reconsideration at 3-6.

On January 16, 1980, the Board issued another Order (accompanied by a telegram to CAND containing essentially the same information) in which it denied CAND's motion, and reminded CAND of its obligations as follows:

CAND is hereby reminded that it must respond to the Applicants'nd Staff's discovery requests by Friday, January 18, 1980 (the date established in our Order of December 6, 1979). As provided by our Order of October 30, 1979, failure to respond will result in CAND's being barred from presenting direct testimony on the contentions for which responses are required by January 18, and such failure ma also be rounds for dismissin CAND from the roceedin

Order at 2, emphasis added. CAND has ignored this last Board Order just as it ignored its predecessors.

The above chronology alone provides ample grounds for 1

dismissing CAND from this proceeding. CAND has had more than eight months in which to provide the discovery sought by Staff and Applicants -- a discovery that, as the Board has repeatedly recognized, is essential to Applicants'bility to prepare their case and meet their burden of proof. During these eight months, CAND has disregarded no less than five explicit Board Orders without offering any valid justification. To allow a party to so ignore the Board's authority would be unfair to the other parties and would make a mockery of the Commission's discovery and hearing process. Thus, as has been done in similar instances in other Commission proceedings, CAND should be dismissed for its failure to obey the Board's discovery orders. See, e.cC., Duke Power Co. (Amendment to Materials Licensing SNM-1773), Docket No. 70-2623, "Order Dismissing Carolina Action As An Intervening Party" (May 23, 1979); Ohio Edison Co. (Erie Nuclear Plant, Units 1 and 2), Docket Nos. STN 50-580, 50-581, "Order to Show Cause Relative to Dismissal" 1 It is assumed, in accordance with Discovery Memo II and the Board's January 16, 1980 Order, that by failing to respond to the outstanding discovery requests CAND is automatically barred from introducing any direct testimony with respect to environmental contentions which it sponsored in whole or in part. Therefore, such a remedy is not included as an alternative to CAND's dismissal, since it would be insufficient in view of CAND's total disregard of its responsibilities in this proceeding.

(March 12, 1979); Ohio Edison Co. (Erie Nuclear Plant, Units 1 and 2), "Order Relative to Applicants'otion for Dismissal of Certain Contentions and the Coalition's Motion for Additional Time" (April 20, 1978); Northern States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298 (1977); Offshore Plants), LBP-75-67, 2 NRC 813 (1975); Public Service Electric and Gas Co. (Atlantic Nuclear Generating Station, Units 1 and

2) g LBP 75-62, 2 NRC 702 ( 1975 ) ~

Moreover, nothing in CAND's filings to date indicates that it has a substantive contribution to make at the hearing .

CAND has retained no witnesses to testify at the hearing (CAND Response at 2), and in fact proposes to give any testimony it offers at the hearing "extemporaneously" (Id.). As the Board indicates, it appears that CAND may view "this proceeding merely in terms of a podium for soapbox oratory", Discovery Memo II at ll, an approach that is not likely to result in a more complete record or a better understanding of the issues.

The purpose of licensing proceedings is to provide "a forum for resolving technical questions in the fairest and most comprehensive manner." Discovery Memo II at ll. CAND's continued participation in the proceeding will not advance this purpose and can only result in more rhetoric by CAND, further

waste of time and energy by the othr parties and the Board, and a cluttered record.

For the foregoing reasons, Applicants submit that dismissal of CAND as a party to this proceeding is justified and should be granted.

Respectfully submitted, SHAW, PITTMAN, POTTS 6 TROWBRIDGE I

I By Jay E. Silberg "

Matias F. Travieso-Diaz f

Counsel for Applicants 1800 M Street, North West Washington, D.C. 20036 Dated: February 4, 1980.

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

)

PENNSYLVANIA POWER LIGHT COMPANY ) Docket. Nos. 50-387 and ) 50-388 ALLEGHENY ELECTRIC COOPERATIVE g INC )

)

(Susquehanna Steam Electric Station, )

(Units 1 and 2) )

)

NOTICE OF APPEARANCE The undersigned, being an attorney at law in good standing admitted to practice before the Courts of the District of Columbia, hereby enters his appearance as counsel on behalf of Applicants Pennsylvania Power 6 Light Company and Allegheny Electric Cooperative, Inc. in proceedings related to the above-captioned matter.

MATIAS F. TRAVIESO-DIAZ Shaw, Pittman, Potts 6 Trowbridge 1800 M Street, Northwest Washington, D. C. 20036 (202) 331-4100 Dated: February 4, 1980

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

)

PENNSYLVANIA POWER 6 LIGHT COMPANY ) Docket. Nos. 50-387 and ) 50-388 ALLEGHENY ELECTRI C COOPERATIVE ~ INC )

)

(Susquehanna Steam Electric Station, )

(Units 1 and 2) )

)

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing "Applicants'otion to Dismiss Citizens Against Nuclear Dangers From This Proceeding" and of the undersigned's "Notice of Appearance" were served by deposit in the U.S. Mail, First Class, postage prepaid, this 4th day of February, 1980, to all those on the attached Service List.

MATIAS F. TRAVIESO-DIAZ Shaw, Pittman, Potts G Trowbridge 1800 M Street, Northwest.

Washington, D. C. 20036 (202) 331-4100 Dated: February 4, 1980

UNITED STATES OF AMERI NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensin Board In tne Matter of PENNSYLVANIA PONER 6 LZGiiT COi~&Ai~ Docket Nos. 50-387 and 50-388 ALLEGHE~a , ELECTRIC COOPERATIVE, IHC.

(Susquehanna Steam Electric Station, Units 1 and 2)

SERV1CE'IST Secretary of the Commission Docketing and Serai.ce Section U. S. Nuclear'egulato y Commission Office of the Secretary Nashington, D. C. 20555 U. S. Nuclear Regulatory Commission baah'ngton, D. C. 20555 Charles Bechhoerer, Esquire Chairman Dr'. Judith H. Johnsrud Atomic Safety and Licensing Co-Director Board Panel Environmental Coalition on U. S. Nuclear Regulatory Commission Nuclear Power Nashington, D. C. 20555 433 Orlando Avenue State College, Pennsylvania 16801 Glenn O. Bright Atomic Safety and. Licensing Susquehanna Environmental Advocates Board Panel c/o Gerald Schultz, Esquire U. S. Nuclear Regulatory Commission 500 South River Street Nashington, D. C. 20555 Nilkes-Barre, Pennsylvania 18702 Dr. Oscar H. Paris Mrs. Irene Lemanowicz, Chairman Atomic Sarety and Licensing The Citizens Against Nuclear Danger Board Panel Post Office Box 377 U. S. Huclear Regulatory Commission R. D. 1 Nashington, D. C. 20555 Berwick, Pennsylvania 18603 Atomic Safety and Licensing Ms. Colleen Marsh Board Panel 558 A, R. D. 04 U. S. Nuclear Regulatory Commission Mt. Top, Pennsylvania 18707 Nashington, D. C. 20555 Mr. Thomas M. Gerusky, Director James M. Cutchin, IV, Esquire Bureau of Radiat'n Protection Office of the Executive Legal Department. of Enviromental Resources Director Commonwealth of Pennsylvania U. S. Nuclear Regulatory Commission P. O. Box 2063 Nashington, D.. C. 20555 Harrisburg, Pennsylvania 17120 Atomic Safety and Licensing Appeal Board Panel U. S. Nuclear Regulatory Commission Nashington, D. C.. 20555