ML18025A683

Responses of Ecnp Intervenors to Board Memorandum and Order Compelling Intervenors to Answer Applicant and Staff Interrogatories

ML18025A683
Person / Time
Site:	Susquehanna
Issue date:	09/17/1979
From:	Johnsrud J, Kepford C Environmental Coalition on Nuclear Power
To:	Atomic Safety and Licensing Board Panel
References
Download: ML18025A683 (22)

Text

As-y/i 7 ENVIRONMENTALCOALITION ON NUCLEAR POWER Co Oirectore: Mr. George Boomtma-R.D. >1, Peach Bottom, Pa. 17563 717-548.2836 Dr. Judith Johntrud-433 Orlando Avenue, State College, Pa. 16801 8 14.23M900 Q

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

tre ann

)

PENNSYLVANIA POWER AND LIGHT CO. ) Docket Nos 50-38 ALLEGHENY ELECTRIC COOPERATIVE, INC. ) - 88 i~ a.

(Susquehanna Steam Electric Station, Units 1 and 2)

Responses of ECNP Intervenors to Board Memorandum and Order Compellin Intervenors to Answer A licant and Staff Interro atories The Environmental Coalition on Nuclear Power (ECNP) submits herein its strong protest to the Board's order for detailed and repetitive responses to unreasonable, burdensome, and unduly oppressive numbers of Interrogatories from the two parties which are proponents of the issuance of an operating license.

ECNP again moves the Board to issue a protective order, not just relative to any single interrogatory, but an order protecting all of these inexperienced, unfinanced, and uncounseled citizen intervenors in this case from the unjust work loads, inappropriately shor t deadlines, unnecessary paperwork, and injustice imposed thus far and which otherwise might be imposed in this proceeding by Staff, Applicant, and the Board itself.

The ECNP representatives make note to this Board of the foIlowing back-ground information, with the intent of assisting the Board to understand the capacities of and limitations upon these public-interest intervenors as they differ from those of Staff and Applicant.

l. ECHP is not represented by legal counsel; the organization r

cannot afford to hire expert attorneys to conduct their case in the public interest. As ordinary citizens concerned enough with public health and safety to donate our time and efforts ti) this matter, and whose interests have been determined by this Board to be affected by the outcome of this proceeding, we are attempting, to tPe best of our abilities, to fulfill our responsibilities and we expect to receive fairhanded treatmerit and due process.

2. ECHP has requested, and has been denied, funds from the HRC to assist in preparing and conducting their case on behalf of the members of the public who belong to ECNP. Me have no funding available for researchers, typists, reproduction of the voluminous filings which are required by the Regulations and the Board to be served on all parties. No funds are available, for travel expenses to obtain documents or for their reproduction at the exorbitant rates charged in the NRC's Public Documents Room, or for the purchase of documents produced at taxpayer expense frcm HTIS, or for the many pther purposes available to Government attorne,(s and the Applicant's counsel.

3. Drs. Kepford and Johnsrud, designated by ECNP to represent its members'nterests before the NRC,are unable to afford frequent trips to the Mashington, D.C. Public Documents Room of the NRC (350 miles round-trip) or to the Milkes-Barre Public Library Local Documents Room (250 mi,les round-trip). And in the energy-constrained society that now characterizes the U .S., these Intervenors'financial

status and place of residence effectively preclude use of public transportation (by air due to expense and by bus due to time and expense of prolonged lodging and meals in Washington or Wilkes-Barre).

Through much of the suamer of 1979, severe restrictions on the availability of gasoline further prevented the frequent travel which the Staff attorney in his June 27th letter (which is not identified as the Staff's response to ECNP's First Round Discovery Requests) so cavalierly assumes Intervenors are free to undertake in order to make use of the documents requested on discovery.

The Board itself similarly commands these Intervenors to expend large amounts of gasoline and money they do not have to travel to the locales at which the transcript of the proceedings is available. The Reference Librarian of the Local Documents Room in Wilkes-Barre has refused to allow ECNP Intervenors to remove the transcript of the Pre-Hearing Conference in'r der to prepare their responses. The NRC Staff stated in an April 10, 1979, letter to the Board, Additionally, with regard to the understanding reached at the prehearing conference involving the availability to the intervenors of the Staff's second copy of the transcript, one limiting fact concerning this arrangement should be clarified. As we advised the Board at the conference, it nas been the practice of the Staff to make available to intervenors the Staff's second copy of the hearing transcript whenever such is possible, and in the present hearing the Staff will, as it has indicated, follow that practice. However, the 'whenever possible'imitation of this offer should be, we beli'eve, clearly understood by all parties pripr to the commencement of the hearing in this matter. . . . Tgus,.when we speak of a second copy of the transcript, ~ <wee not referring to an extra copy of the transcript for i~hich the Staff has no need or anticipated use, but rather a copy that will be required for use by the Staff at various times throughout the proceeding. The present case is, of course, no exception; because of the nature of this i)roceeding there will be frequent occasions

when Staff attorneys and witnesses will need to utilize both copies of the daily transcript, thus eliminating the possibility of loaniag the second copy of the transcript to the intervenors.

The Staff's arbitrarily imposed limitation on the availability of the transcript is not in accord with what Intervenors recall to have been the thrust of the Board's posi tion during the Prehearing Conference. However, ECNP is forced into the position of saying that we cannot cite the record, having been denied the access to the transcript which ECNP clearly requested and which the Board had promised to make available to the intervenors (See Board's Special Prehearing Conference Order, March 6, 1979, pp. 82-83 ).

Since we are denied the promised access to the record, ECNP is denied due process and cannot in any fairness be expected to meet the arbitrary rigid deadlines imposed for responses to this vast number of interrogatories.

4. Or. Kepford, to fulfill personal responsibilities, left the United States in late Dune; he returned to Pennsylvania on September 3. Or. Johnsrud, because of prior commitments, was absent from the state commencing July 3 for most of the remainder of the month and, again during much of August.

There was, therefore, no opportunity for these intervenors to respond within the allotted time period to Applicant and Staff filings, including the Staff's untitled letter bearing the date of June 27, 1979, that pertained to ECNP's First Round Oiscovery requests.. The lack of responses from ECNP, therefore, ought not be taken as an indication of lack of ECNP interest or desire to participate fully in this proceeding. It is, instead, a mani-festation of our limitation of resources, be they personal, temporal, or financial.

We ask the Board to note, in this connection, that the Johnsrud signature on the ECNP June 29, 1979, responses to Staff and Applicanr, Interrogatories was the only one available in the absence of Or. Kepi'ord

and that those responses were submitted with his full approval; it is a matter that appears to have troubled the Staff attorney throughout his July 13, 1979, objections.

6. The ECNP Intervenors and their two legal representatives are among the Pennsylvanians who directly experienced, and suffer from, the severe trauma I

associated with the Three Mile Island, Unit 2, accident which began on March 28, 1979, and is still .in progress. Whereas members of the NRC Staff, the 8oard, or the Applicant's staff may not have considered the accident at TMI a danger,to their lives, we who were present in central Pennsylvania during the crisis did; the ECNP representatives were in the vicinity of the plant during portions of the first five days of the crisis; they sheltered refugees from the Harrisburg-Middletown area; as Intervenors in the TMI-2 Operating License Proceedings, they were especially keenly cognizant of the hazards associated with the event and its consequences for the public. The effects of the psychological 'trauma, thus, were not limited only to residents of Harrisburg and the inmediate environs of that reactor. The disruptive impacts of that accident, in March and April; and ongoing effects of uncertainty about the safety of our ECNP members and of others throughout central and eastern Pennsylvania havehad severe repercussions for the personal lives of these ECNP representatives. The priority of responding to the calls for information, assistance, and reassurance from the victims of the TMI-2 accident must be understood by this Hoard as a moral imperative that has absorbed a substantiaT portion of these Intervenors'ime and energies in the ensuing months.

The nature of public-interest involvement in a reactor licensing proceeding differs substantially frcm that of the Applicant the proponent of the order

which will issue from the proceeding, the beneficiary of that order, and the bearer of the burden of proof in the proceeding--or of the NRC and, sometimes, the State, both of which have, in general, given support and issued permits for the reactor in question by th~! time the hearing process begins.

For the Intervenor,>, public awareness of the pending hearings is likely to produce financial support, if any, only as the time of hearings approaches. Not until there is adequate financing can Intervenors procure the services of expert witnesses. Yet only when there is some determination of the approximat>> time of hearings can these witpesses decide if they will be free to participate, will have adequate time for preparation of testimony, and can afford the com~itment for what, from a citizens'roup, can usually at best be the return of gravel expenses.

This Board has commanded the citizen intervenors in this case to respond, at the beginning of discovery, to the Staff's request for the identities, addresses, professional qualifications, subject matter, and the very substance of the testimony of such 'witnesses as the Intervenors may wish to call if indeed they are able to obtain sufficient funds to be able to retain any witnesses.

Furthermore, this Board has compelled these Intervenors to identify and and produce fully two months in advance all documents to be used in their examination and cross-examination of witnesses.

These requirements have been imposed in the absence of receipt oj discovery documents from the Staff and with only partial compliance with their requests from the Applicant. It is patently impossible for Intervenor s" repre-sentatives to provide sixty days in advance the substance of testimony which the Board has required to be filed only 21 days in advance of hearings. Iniervenors will know what documents have been utilized by their witnesses when those

witnesses file their testimony. Intervenors, far more than the Applicant and Staff (the proponents of the issuance of an operating license), cannot be expected to identify all those documents upon which they will rely for examination and cross-examination until they have received and studied the testimonies of witnesses for the other parties.

Furthermore, the issues raised in contention are matters about which the Applicant and Staff should be well prepared already, if the license is to issue, regardless of whether or not the Intervenors can supplement their initial responses to interrogatories. In an Operating License proceeding, it is the business of the Applicant to prove it is entitled to a license. It is the responsibility of an Applicant to take whatever preparatory measures it deems appropri a te to jus ti fy i ts cl a im that 5

it should be granted a license.

The Intervenors are not paid consultants of the Applicant. If this Applicant cannot prepare its case without the assistance of these Intervenors, then certainly the license should not issue.

Similarly, the taxpayers have gone to great expense to provide the Commission with ample Staff resources to evaluate whether or not the Applicant is entitled to a license. The taxpayers are not paying these Intervenors to pre-pare the Staff for its role in this proceeding. Further, even if the Comnission were to grant these Intervenors financial assistance as requested, the role of the Intervenor in the licensing proceeding is to provide a check and balance to try to ensure that the public health and safety are protected. 8y no means, under any circumstances, is it the responsibility of these. or any other inter-venors to assist the Staff and Applicant in preparation for this proceeding.

The ECHP Intervenors note that under the Administrative Procedure Act of 1946 and the Atomic Energy Act of 1954, as amended, the burden of proof rests both with the Staff and the Applicant. The Staff has the 'responsibili ty

to ensure that the activij;ies of the Applicant will not affect the healj;h and safety of the public. The Applicant, on the other hand, is required to demonstrate some level of competence in the construction and operation of its faci 1 i ty.

In addition, the Commission's own rules (10 CFR 51.20(d) and 51.21) require the Applicant to search out and highlight information contrary to the positions advocated by the Applicant and include such information in its Environmental Report. In short, if the Applicant is competent to run a nuclear power plant, and has obeyed the Commission's rules, and if the Staff does the job it gets paid for, there can be no surprises in the upcoming evidentiary hearing, regardless of the presence or absence of Intervenors'esponse to interrogatories. On the other hand, if there are surprises, then either the Staff or the Applicant, or both, have failed to uphold their respective statutory responsibilities, and no operating license should be granted. Discovery upon the Intervenors, as has occurred in this proceeding, is for the sole purpose of annoyance, harrassment~, and oppression.

Me respectfully as): this Board to bear carefully in mind its responsi-bilities to protect the constitutional and statutory rights of citizen j;ntervenors, particularly because these intervenors are unschooled in administrative law.

In the wake of the Three Mile Island accident and the admitted inadequacy of that TMI-2 NRC licensing review, we would think that the NRC would be concerned to ensure that further operating licenses are granted only after it has been ascertained that the public health and safety will be properly protected.

However it appears that the Staff, rather than comply with its statutory duties is instead attempting to railroad the ECNP Intervenors out of the Susquehanna proceedings. ECNP objects to this unfair treatment. Ne are sending a copy of this document registering our objections directly to the Commissioners, as well as to the Presidential Commission investigating the TiilI accident. Me

re,titrate that we had, two months prior to the THI accident, asked to have an NRC Commissioner serve on this Board in order to avoid the unusually heavy-handed favoritism which had characterized the THI-2 proceeding. Suet~

favoritism has indeed already been shown to the Applicant and Staff thus far in this proceeding.

Responses to the NRC Staff and Appli tant Interrogatories beyond tho.;e which were properly and timely submitted by ECNP would require many months of sorting through private libraries of documents for each Interrogatory. Timey would also require extensive bibliographic search in those distant Public Document Rooms to which the Staff has referred us in its June 29, 1979,refusal to supply discovery documents requested by ECNP. Furthermore, Intervenors have access to only published information whereas the Staff is composed of many individuals whose job it is to be familiar with this information. Are the Intervenors to be booted out of these proceedings because their timely responses were not to the satisfaction of an NRC lawyer, and because they cannot possibly respond in full in the vere fourteen days allotted by this Board? Such appears to be the intent of the Staff in order to rid the hearings of a public-interest party that raises troublesome issues, issues which the NRC apparently does not wish to confront, even after the Three Mile Island accident. (Issues raised at THI-2 have still not been resolved a year and a half after that license was issued.)

We note here that the counsel for the Applicant, who demands answers to an unprecedented and outrageous number of interrogatories, is a member of th>> same law firm which contributed so much in turning the THI-2 licensing proceeding into a charade and carnival sideshow. There can be little doubt that counsel for the Applicant. is trying to scuttle ECNP in. this -proceed.".ng on procedural techni-calities, in order to prevent a repeat of the THI-2 humiliation his law firm

suffered.

The Board stated in its August 24 Order the importance of discovery to the Applicant (at p.6). The fact that Intervenors from ECNP member organizations have participated in three construction permit proceedings (Newbold Island 1&2, Limerick 182, and Fulton 182) and three operating license proceedings (TMI-l, Peach Bottom 2 53, and TMI-2) without, to our recollection and knowledge, ever having been asked to answer a single interrogatory or discovery request casts a dark cloud of doubt over the Board's statement. Me also note that ir~, each of the above mentioned proceedings the Applicants ultimately got what they requested.

The quote offered by the Board in support of its ridiculous statement only detracts from the credibility of this Board and the Board which made the quoted statement. The record of ASLBs in granting comnercial nuclear power plant applications is perfect; none has ever been rejected by an ASLB. So the assertion

.that an appTicant may have a burden to discharge that "may be impossible" not only has no basis whatsoever in fact, but the assertion of such a ludicrous idea r

degrades the entire process. Furthermore, if indeed the Applicant is surprised by the testimony and cross-examination provided by the Intervenors, the Applicant can move for an extension of time to respond to the information provided at the hearing. In any event since the proposed testimony is submitted 21 days prior to hearing, any inability of the Applicant to prepare for hearing suggests. that the Applicant is not ccmpetent to operate the Susquehanna reactors.

Fairness can only be approached by careful contemplation of all of the 1

To the best of our recol jection (since the transcript is not available to us) the Board stated in the Prehearing Conference in this proceeding that it was familiar with the record >n the TMI-2 proceeding. If so requested by the Board, we would be will.ing to describe briefly some examples of the manner in which em-barrassment was caused to the Staff and the law firm of the Applicant in the TMI-2 proceeding. See thy record in the TMI-2 proceeding.

parties'filings, at a bare minimum. In the case of this Memorandum and Order (M50), this minimal standard was not approached. The rulings came down granting the the Staff and Applicant everything they requested and denying the various inter-venors everything they requested, whereas precisely the opposite result was in order.

The Hoard in its MEO does not reveal that it has read and understood any of the parties'ilings, even though the Hoard sides with the Staff and Applicant.

The Board has clearly failed to come to grips with the sheer magnitude of the Applicant's discovery request. We repeat what we stated earlier: two thousand seven hundred interrogatories constitute a burden of extraordinary magnigude.

whose purpose is none other than harrassment. Two thousand seven hundred inter-rogatories based on about a dozen contentions works out to about 200 interroga-tories per contention. This number of questions is oppressive and inappropriately burdensome under the Commission's rules, 2.740(c).

We must note here that the Board in its August 24th Memorandum and Order claims it has "mitigated the burden" of the Applicant interrogatories (at p. 12).

The Board in fact has only I educed the number of these interrogatories from two thousand seven hundred (2700) to two thousand six hundred twenty-eigh't (2628).'

The Applicant withdrew four of its questions, each of which was composed of twenty-eight parts.. In addition, the Board has requested these Intervenors to specify in detail our objections we wish to express, if any, I to each of these 2628 interrogatories--plus those from the Staff--all in a mere two weeks.

The Board- apparently does not realize that, just as answering 2700l (or 2628) questions is extraordinarily oppressive, so too specifying why each of, the 2700 (2628) is burdensome is also oppressive.

The ECNP Intervenors submit that to answer all of the Applicant's v\ ~ 0 interrogatories would take many months-most of a year of effort, even if all other previously scheduled comnitments and activities of the If indeed Intervenors'epresentatives were to be terminated, which they cannot be. the Applicant or Staff can justify the need for these Intervenor'o provide such response to this enormous number ofinterrogatories, the ECNP Intervenors request the Board to order a postponement of the due-date for the answers to the Applicant's interrogatories until September 15. 1980, at the very earliest.

An alternative would be for the Applicant voluntarily, as we previously suggested, or under Board order to reduce its interrogatories to a rational and defensible number and call off its purely retaliatory, vindictive, qnd punitive campaign against these in)ervenors.

Mith regard to our (:imely answers to the Staff's interrogatories, the Memorandum and Order of the Board is ambiguous on the'subject of these

);ntervenors'esponses.

The Board appears to order ECNP to reanswer the Staff's questions.

However, ECNP has already attempted to answer the Staff 's questions and is pre-vented from further attem'pting to answer the interrogatories in part because the Board has not informed ECNP which specific questions need to be reanswe> ed. Our.

15 problem hereknowing which questions to reanswer: do we reanswer only those described by. the Staff as "evasive," or do we reanswer all questions objected to by the Staff? If the latter, then why? The Staff appears far more interested in volume then in content, no matter what our response was. ECNP has made a good faith effort to answer the Staff's questions. Furthermore, how are we to know beforehand at what point the Staff will be satisfied with our answers? The Staff and Applicant could very well occupy the Intervenors with answering and reanswering interrogatories until the date of the hearing, effectively preventing us from preparing for the hearing and thereby preventing us from assisting the Board in compiling a full and complete record. The M 5 0 of the Hoard does not, offer a clue to these matters.

In its M 5 0, the Board stated its concern about allowing a party to demand answers to questions while at the same time that party refused to answer questions directed to it. (See M & 0, p. 10). The Board cautions another Intervenor about the seriousness of this "offense." Yet the Board sits back while the NRC Staff takesexactly this position. The Staff demands answers from ECNP and refuses to comply with ECNP's discovery request. The Staff has not I

supplied a single document requested by ECNP nor has the Staff moved for a protective order. This failure to provide documents requested by ECNP, of course, compromises and prejudices the ability

<<* \

of ECNP to prepare its case. The ECNP Intervenors submit that if the threat of banishment from a proceeding is a threat that can be held over the heads of Intervenors, then fairness (under 10 CFR 2.718) would require that such a threat also be leveled at the NRC Staff.

Mith respect to the Staff's first General Interrogatory, and with:respect to many if not most of Staff interrogatories, ECNP, for reasons stated in our previous filing~ has not yet obtained its witnesses. For the Board to require the information requested by Staff ~60 da s in advance of hearing of witnesses is a clear denial of due process and is contrary to the letter and spirit of the Coomission's own regulations. In other proceedings, one or two weeks has been considered entirely adequate. The Staff proposes to prohibit Intervenors from using at the time of hearing any documents which are not now identified in response I

to this interrogatory. These proposed limitations and prohibitions, when ccmbined with the Staff's refusal to supply the documents requested*months ago by the Intervenors, constitute an effort by the Staff to deprive us of our rights as participants in this proceeding (10 CFR 2.743(a)). The Staff v

has provided no meaningful justification for these unusual strictures.

Me note, for example, that, in the Three MIle Island, Unit 2, operating license proceeding, the Staff's testimony on the nuclear fuel cycle was

introduced in the midst of the evidentiary proceeding without any 60 days of tv ra a filing in advance of the hearing date; ECNP can hardly be expected to have completed the preparation and substance of its entire case at thistage of the proceedings. ECNP objects to this and General Interrogatory requests a protective order, because the Staff ha,; provided h

no justification for these unusual strictures and because the Staff's request is burdensome, oppressive, and is intended to harrass these Intervenors.

With respect to the Staff's second General Interrogatory, it h impossible for ECNP to have assembled the documents requested its entire case at the time of the First Round Discovery requests. It is patently absurd, furthermore, to expect or request, much less order, the identification of all documents to be used in cross-examination of witnesses for the other parties who have not yet been required or even asked to identify their witnesses. Furthermore, ECNP does not have the funds to produce any documents for the Staff as requested. In addition, it is the'Staff's responsibility to prepare for this hearing on its own, since they and Applicant have the legal burden of proof. We object to this General Interrogatory and request a protective order because the Staff'g request is burdensome, oppressive, constitutes an undue expense, and is intended for harrassment purposes.

ECNP Intervenors submit the following specific objections to the detailed 2

Interrogatories of the Sgff.

2 ECNP Intervenors do not feel it is appropriate here to list specific objections to the Applicant's interrogatories above and beyond those objections li~ted elsewhere in this filing, due to the extraordinarily burdensome nature (If Applicant's interrogatories, However, we note that most of the general objections which follow in the text above are applicable also to the Applicant's interroga-tories.

Interrogatory

1. The ECNP Intervenors object to the 60 day requirement requested by the Staff that ECNP identify all its witnesses. the substance of their testimonies, and all documents to be relied upon for evidence, G-1 and 2 examination, and cross-examination. Since the Staff itself refused to make available to the Intervenors the background information the Intervenors requested months ago, the Staff puts the Intervenors in an impossible posi tion: the Staff refuses to forward necessary documents upon which the Intervenors would rely and require for preparation of their case, and then demands the identification of documents to-.be rjlied upon.

This demand of the Staff constitutes a continuing oppressive haprass-ment of the Intervenors. The Intervenors move for a protective order so that discovery not be had under this burdensome (and imposs'ible) schedule, but instead be had, if it is necessary at all, only;to the extent provid'ed under the commission's rules, 2.743(b).(which provide only that wri ttep testimony be submitted fifteen days prior to the scheduled day of the hearing for'hat testimony.)

2. The documents, discussions conferences, research reports, and Al 1 all other source materials, experiences, and reflections used by ECNP in formulating its contentions and its responses to the St'.aff Interrogatory r epresent an accumulation of information, knowl,t!ige, analysis and syn;:hesis over the period of more than a decade. ~

3. The Staff request of ECNP for a listing of the "incorrect S-1.2-7 assumption(s)," the effect of incorrect assumptions, and what S-5.1-3 assumptions or models should be used, and what the effect of.s<<ch S-5.6-7 assumptions or models would be,-is wholly out of place.. The SI:aff S-l.ll-14 has the burden of proof (10 CFR 2.732) to establish that its a'sum-S-7.2-3 ptions are correct. The Interv'enors do not have. the time, money, S-8.4 or expertise to do the work for which the NRC Staff itself gets paid. ECNP requests a protective order that discovery not be had as such would be inconsistent w'ith the Commission's rules (2.732):

any such discovery would constitute an undue burden and expense,

4. ECNP does not understand this ineptly phrased question any S-1.8 more now than question it did before, following'our since the Staff has not clarified the

<nitial response. Me therefore again request fromthe Staff clarification which is consistent with 10 CFR 2.732.

However, we note that the record. in the Three Mile Island, Unit 2 proceedings demonstrates that on the order of one million future human deaths would occur due to -future releases of radon. attributable to each year's fuel supply for the reactor. To specify each of these future health effects and how each is caused would be burdensome and oppressive in the extreme. It would, in fact, obviously be imiIossible, since we cannot foresee exactly how each of these one million premature deaths per annual fuel requirement will occur. Under 10 CFR 2.740(c) we therefore move for a protective order.

S-1.9-10 5. This matter is the subject of ongoing proceedings before the S-3.1-4 Commission, of which the ECNP representatives are a part (see ALAB-562).

S-1.1-9 The ECNP Intervenors have made no calculations or assumptions beyond S-5.6-7 those already thoroughly documented and inthe possession of the Staff in those proceedings covered in ALAB-562. Me therefore request a 3

See addendum note following Response 14, p. 17

protective order that discovery on this subject not be had as it is unduly burdensome, expensive, constitutes harrassment of the ECNP Intervenors, and is repetitive of information already in the hands of the Staff. Alternatively, we request that the entire record in the ongoing radon proceeding be incorporated by reference in this proceeding in response to the Staff's interrogatory. As a further alternative, we move that the Susquehanna proceeding be held in abeyance until completion of the radon proceeding currently underway

.pursuant to ALAB-480.

6. In NROC v. USNRC (547 F.2d 633), rev. on other grounds, at p. 639, S-l . 10-1 5 note 12, the Court observed, in part, 5-9.7 The environmental effects to be considered...are those for the full detoxification period. ...

Until the Staff can show that this simple criterion is met, the criterion has not been met (10 CFR 2.732). ECNP has made no calculations or pssumptions for any isotope other than radon-222.

See response 4, ybove.

7. requests a protective order that discovery not be had of positions not sponsored by ECNP in it-ECNP S-2.1-5 ECNP for contentions and S-8.1-3 filings. In its interrogatories the Staff misrepresents many gf ECNP's S-9.1-6 contentions. Oi scovery under this condition constitutes an undue S-.18. 1-3 burden and expense.

8. Since ECNP believes the cost-benefit balance has already been tipped against any nuclear power plant on the basis of radon-222 S3.5 emissions (see k4, above), ECNP has made no further calculatiops S-1.10 concerning cost/benefit analysis. Furthermore, it is not our it is, S-2.5 burden to develop an alternative cost/benefit analysis; instead, the Staff's and Applicant's burden to set forth the fiull and complete cost/benefit analysis (10 CFR 51.20(b), 51.23(c)apd 51.23(f) .

9. The ECNP Intervenors have reason to believe that a document S-5.1 exists (requested by the NRC on discovery by ECNP) in English translation by the NRC from the original German which describes how certain NRC models underestimate the effects of, certain radio-isotopes on man. Until the NRC supplies this document, requested months ago, it is impossible to answer this question. ECNP requests a protective or der that no discovery be had on this. subject until the Staff supplies the requested document, as this demand of the Staff otherwise would constitute an impossible burden.

10. ECNP has made no independent assessment concerning what models, S-5.1-9 assumptions, conversion factors, calculations, and so on should be S-6.2-4 used, beyond the information on radon already in the possession of the S-7.2-3 Staff (see ALAB-562). At any rate, this is the province of the S>>7.6-10 Staff (10 CFR 2.732). ECNP therefore requests a protective order that discovery not be had on this interrogatory as such would consti-tute an undue burden.

ll. In the Salem Unit (Oocket'No.,50-272), the 1 spent fuel pool compaction proceeding Staff has concluded that the TMI-2 accident S-6.1 S-6.4 was indeed a Class 9 accident. As a result, ECNP believes this S-7.16 question to have been fully answered in our previous response to Staff interrogatories. We therefore request a protective order since the burden of establishing that the health and safety of the public can be preserved is the Conmission's responsibility under law.

12. ECNP has requested background information on this subject on S-6.1-5 discovery from the Staff, and none has been forwarded as requested.

S-7.1 Beyond repeated statements in the press concerning this subject, the S-7.4-15 Intervenors can supply no further information not already identified.

The Staff, again, has the full. burden of proof (10 CFR 2.732).

S-6.1-5 13. ECNP believes this question has b'een answered fully. We there-S-7.16, fore request a protective order so that oppression of these. Inter-S-1.10 venors at the hands of the Staff will cease and further harrassment S-7.4-5 wi.ll be prevented.

I S-7.11 14'. ECNP has made no independent calculations concerning this S-8.4 interrogatory. The basis of our concern is contained most concisely in "Nuclear Regulatory Comnission Staff Report Concerning Allegations by Robert Pollari," February 28, 1976, pages 146-7. Nothing ip that report alters thpse conclusions. We note again that ECNP has I equested updated materials on this subject from the Staff months ago, but none has been supplied to the Intervenors. We move for a protectivi~ order under 10 CFR 2.740(c), as additional requirement of response would be unduly burdenscme, oppressive, and expensive of time and research capabi li ties whichthese Intervenors do not possess.

\

Addendum to Response 2:;Therefore, no specific documents can be cited as the sole or primary ground for the ECNP contentions or other positions relative to issues in contention. We move for a protective order, since the production of materials to satisfy the Staff's demand would be burdensome and oppressive in the extreme, unduly expensive, and impossible as well.

The ECNP Intervenors requested, during the Prehearing Conference in January, 1979, (tr. 372-3, as cited in the Board's Special Prehearing Conference Order o, March 6, 1979, transcript not available to these Intervenors) that a Cormissioner of the NRC serve as a member of the Atomic Safety and Licensing Board in this proceeding.

The Board stated in its March 6 Order (at p. 83) that the request was beyond the scope of the Board's authority, that it would be inappropriate for the Board to take any action, but that "[i]fit so desires the Comnission could of course reconstitute the Board to include one or more of its members."

-1 8-The ECNP"Intervenors here formally request that the Commission reconstitute this Board so that a member of the Commission who has expressed an especial interest in assuring the evenhandedness of the licensing process by so serving become a,g ASLB member for these Susquehanna Operating License proceedings. In light of questions asked, lessons learned, accidents suffered, and damage experienced by members of the EnvironmentaI Coalition on Nuclear Power in consequence of the Three Mile Island, Unit 2, accident and the inadequacy of the licensing process for Chat reactor, we believe it is entirely proper and in .accordance wi th the Comnissjon's mandate to protect the public health and safety for a member of gee Comnission to serve on this Board. We ask the Board to certify this question to the Commission.

With regard to the Board's comments in its August 24 Memorandum and Order (at p. 16) pertaining to the Staff's requests for a deposition from Mrs. Mary K.

Creasy, a member of ECNP, these,Intervenors urge the Board to order the NRC Staff to discharge its regulatory responsibilities by undertaking a full investigation of those allegations made in the Limited Appearance statement of Mrs. Creasy at the January, 1979, Prehearing Conference. We ask further that the Board order the Staff attorney to cease his continuing harrassment of this limited appeara~ce witness. His campaign is based on nothing more substantial than a newspaper account in which a reporter attributed to Mrs. Creasy statements and motives that are not hers.

ECNP Intervenors regard the Staff attorney's pursuit of this matter as further evidence that the NRC Staff are unwilling to fulfill their lawful regulatory functions and instead are intent upon annoyance and pitiless harrassment of members of the public and the intervenors in such ways as to intimidate them, burden them unduly, and cause them to be expelled from these proceedings which are important to the public health and safety, and therebyto deny the ECNP members due process .

For this Board to impose or threaten to inflict punitive measures on the Intervenors in the Susquehanna 1 and 2 proceedings is indicative of NRC's insensitivity or a purposive intent to force the ECNP Intervenors and others out of the operating license hearings. We are compelled to ask if the p'urpose is sheer vindictiveness or a desperate attempt to hide the inability of Appli~.ant and Staff to convince the Commission that the Susquehanna reactors and their associated nuclear facilities can be operated safely. In view of the continuing tragedy at Three Mile Island, the attitudes shown thus far in this proceeding by attorneys for the Staff and Applicant are truly ominous and ugly.

The ECNP Intervenors respectfully request, for all the reasons discussed above, that the'oard reconsider and revise its Memorandum and Order of August 24, 1979, in view of the particular and general objections that ECNP has raised previously and again in this filing.

Respectful ly submi tted, Chauncey Kepford Representative l

of the Intervenors Judith H. Bohnsrud Dated this day of Co-Director September, 1979 Environmental Coalition on Nuclear Power

ENVIRONMENTALCOALITION ON NUCLEAR POWER Co.Directors: Mr. George Boomsma-R.D. <<1, Peach Bottom, Pa, 17563 717 548.2836 Dr. Judith Johnsrud-433 Orlando Avenue, State College, Pa. 16801 814.2374800 Wea the undersigned persons'ffirm that the statements in Responses of ECNP Intervenors to Soard Memorandum and Order Comnellin Intervenors to .4nswer Avolicant and .'staff Interro atories are true and correct to the best of our knowledge and understanding.

/

Chauncey Zepferd Representative of the Intervenors Judith H. Johnsrud Co-Director Bxvtronmental Coalition on Qxclear Power Dated. and witnessed this J '1 sar rg(RN 'lo sucs:K:fD BE'Ct

/7 El!i tHls,....

of Septembera 1979 SDP1 PME~

lean B. Harris, thotary Public Pa. 16801 State College, Centre County, Ex plies March 16, 1981',

hVj Commission

SEP2i /S7S r~

cl IM 5eaH&

Sec Son CERTIFICATE OF SERVICE I

INTERVENORS TO BOARD MEMO NDUM I hereb certify that copies of RESPONSES OF ECNP AND ORDER COMPELLING following by deposit in the U. S.. Mail, ir Class, ai , First have been served on the postage paid, on this ++day of September, 1979:

Charl es Bechho ef er, Esqui re Docketing and Service Section Chairman, ASLB Panel Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Coranission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Glenn 0. Bright Jay Silberg, Esquire ASLB Panel Shaw, Potts, Pittman, and Trowbridge U.S. Nuclear Regulatory Commission 1800 M Street NW Washington, D.C. 20555 Washington, D.C. 20036 Dr. Oscar H. Paris Mrs. Irene Lemanowitz Butz, Chairperson ASLB Panel Citizens Against Nuclear Danger U.S. Nuclear Regulatory Coomission P.O. Box 377, R.D. 1 Washington, D.C. 20555 Berwick, Pa. 18603 Atomic Safety 5 Licensing Board Mrs. Colleen Marsh Panel 558 A, R.D. 4 U.S. Nuclear Regulatory Coamission Mountain Top, Pa. 18707 Washington, D.C. 20555 Gerald Schultz, Esquire Atomic Safety 5 Licensing Appeal Susquehanna Environmental Advocates Board Panel 500 South River Street U.S. Nuclear Regulatory Coranission Wilkes-Barre, Pa. 18702 Washington, D.C. 20555 Thomas M. Gerusky, Director James M. Cutchin, IV, Esquire Bureau of Radiation Protection Office, Executive Legal Director Department of Environmental Resources U.S. Nuclear Regulatory Commission Coomonwealth of Pennsylvania Washington, D. C. 20555 P.O. Box 2063 Harrisburg, Pa. 17120 W/

Chauncey Kepford Representative of e ECNP !ntervenors

r, GF ".i ~'..g,i.ii:.;;: ~

hv Cs~l les~ ~~

s v.s~s i Postmar' Copies Oes le iv.'

~~I~

Add'l Cc"is= '.".:";"= .:! 2 SpCCiell Di4ffade'tiCs1