ML19206A349
| ML19206A349 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/01/1978 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7904190348 | |
| Download: ML19206A349 (9) | |
Text
.
~.
'u-
, O / V I,,. ;.
/C w
UNITED STATE: CF AMERICA fiUCLEAR REGULATCRY CCM:tISSICN BEFCRE THE ATOMIC SAFETY AND LICENS!!;3 AP:EAL BCARD In the Matter of
)
)
METECFOLITAN EJISCN CC"PANY,
)
Occket No. 50-320
_ET _AL.
)
(Three Mile Island Nuclear Station,)
Unit 2)
)
NRC STAFF RESPONSE TO INTERVENORS' MOTICN TO CCM EL THE AP:EAPANCE CF THC"AS GERUSKY Cn April 16, 1978, Joint Intervencrs, Citi: ens for a Safe Environment and the York Cc=ittee for a Safe Environment, filed a motion wnich recuests the Atcmic Safety and Licensing Appeal Scard (Appeal Scard) to direct the Atomic Safety and Licensing Board (Licensing Board) to recuest the Cc=onwealth of Pennsylvania to produce Thccas Gerusky, Director of Radiological Health of the Cemenwealth, as a witness in the remanded proceeding. Since only the issue of radon was remanded to the Licensing Board with direction to reopen the record to receive new evidence, 1/
the NRC Staff will treat the present moticn as one requesting (1) that the issue of emergency planning be remanded to the Licensing Board and thattherecordinthisproceedingbereo$enedtoreceiveevidenceon 2I that issue and (2) that the Appeal Scard direct the Licensing Scard 1I Metrocalitan Ediscn Ccmcanv (Three Mile Island Station, Unit No.
2), ALAB-4c5, Marcn 27, 1973, slio 00. 3 anc 5.
2I See Georcia Power Co. (Alvin W. Vogtle liuclear Plant, Units 1 and 2), ALAS-291, 2 NRC JCA, J13-14 (1975).
7 9 04190 3y8 g, _ c q.-
v
("),-
)
O
_2_
to ccmpel tna acpearance of Thcmas Gerusky to testit.:n the emergency
'/
planning issue. 1 For the reascns set 'fceth belev the Staff urges that both requests ::e denied.
The "ction was 'iled Out-of-Time Without Adecuate Justification balieves that the Joi'it Intervencrs' motien should be The NF.C SM ##
denied for being filed late without adquate justification.
During oral argument on Joint Intervences' e.scections held on March 23,1978, Joint Intervencrs repuested that the record in this proceeding be reopened to receive acditional evic2nce in the form of testimony by Thomas Gerusky on emergency planning (Tr.15).
The Appeal Scard advised Joint Inter-vencrs' representative, Dr. Kepford, that if Joint Inte"vencrs wished the record reopened en this matter they should file a written motion to that effect by April 3,1978 (Tr.112).
Dr. Kepford gave no indication that he objected to the established time period or that he would experi-ence difficulty in meeting the deadline.
Dr. Kepford by telephone on Friday, March 31, 1978, advised the Acpeal Board that he would be unable to meet the April 3 deadline establisned by the Appeal 5 card and requested an extension until Friday, April 7, to E o the extent the Joint Intervenors' suggestion that the Ccmmen-Twealth of Pennsylvania or the Acplicant 'cr even the Staff) pay for the witness fees of the sucpcenaed witness, is a request for such relief, the Staff urges that this request be denied as a challenge to tne following language of 10 CFR s 2.720(d) which is prohibited by 10 CFR i 2.758:
Witnesses summoned by subcoena shall be caid, h g
..,4,..,.,.
..3.,
2.,7 g r,
jg-733.-
u-
~
],
. file tne motion. 4/ As further recorted in the Secretary to the A;oea' Board's letter of April 3,1978, following several unsuccessful attemots to reach Cr. Kapford in order to deter,ine the reasons for the sought extension, the Aopeal Board through its secretary informed Dr. Kepford that it was not, as of that date, giving consideration to the request for extension and that any such motion filed later than April 3 must be accompanied by a " full expianation of the reasons why it was not possible 5
... to meet the prescribed deadline".
/ Finally, the letter of April 3 observed that the Appeal Scard assumed that justification for an untimely filing would go beyond the mere fact of Dr. Kepford's absence from State College, Pennsylvania during the week of March 27, a fact known to Dr.
Kepford at the time of the oral argument.
Time limits established in Cc mission regulations and by administrative tribunals are entitled to respect Cl. Kansas Gas & Electric Ccroany, et al. (Wolf Creek Generating Station, Unit No.1) ALAB 424, 6 NRC 122, 125 (1977). A party with an objection to scnedules established by a board should make kn%ni its objection in a timely fashion. E. Consoli-dated Edison Ccmoany of "ew York, Inc. (Indian isint, Uni s., 2 & 3)
ALAB-377, 5 NRC 430, 431 (1977).
Here, Joint Intervenors neither oojected
-4/ Letter from Romayne M. Strutski to Dr. Chauncey R. Kepford dated April 3, 1978.
3/ The Staff finds Joint Intervenors' argument that the language in footnote 6 to ALA3-465 as confusing with respect to the crescribed deadline of April 3,1978 to be witncut merit.
(Motion,p.2).
Q -nn
- 04
h prcmptly to the schedule set by the 4ccesi Eocrd nor requested leave to file cut-cf-:ime.
The unjustified tardiness of tne instant Potici.
provides adecuate basis for its rejection by the Acpeal Scard.
The Motion Fails to State Sufficient Arguments to 'urrant Recceninc the Record Appeal boards have noted in scvaral past proceedings involving a request to reopen a record to entertain newly-disc;vered evidence that the proponent of such a motion 'as a heavy burden.
Kansas Gas & Electric Comcany, et al. (Wolf Creek Generating Station, L' nit No.1) ALA3 462, 7 NRC
(." arch 7,1978), citig Duke Power Cc. (Catawba Nuclear Station, Units 1 and 2) ALAS-359, 4 NRC 619, 620 (1976).
The mction must be both timely presented and addressed to a significar.t issue. ALA3-462, sucra, citino '/er ont Yankee Nuclear Power Coro. ('/er ont Yankee Nuclear Power Stz; ion) ALAS-138, 6 AEC 520, 523 (1973);
id_., ALAB-167, 6 AEC 1151-52 (1973).
Here, the Joint Intervenors have not met their burden to demon-strate a need to reopen. Thus, their request should be denied.
Joint Intervenors' Motion fails to meet either element of the '/er..cnt Yankee test for reopening a record. See '/er cnt Yankee Nuclear Power Corcoration ('lermont Yankee Nuclear Power Station) ALAB-167, 7 AEC 1151 (1973); ALAC-138, 5 AEC 520 (1973); and ALAS-124, 6 AEC 3E8 (1973). The first element of that t:r is "whether the issue sought to be presented could have been raised at an earlier stage...." ALAB-138, sucra, at 523.
The issue scught to be presented by Joint Intervenors involves the ca;;abilitj af 3PH to parcicicate in implementation of the TMI emergency
. at:_n.
h
O Scard's 'nitial Decision (para. 6a3 ant in 'cplicants' Res:cnse To Intervences' Exceptions (para. a5), that this issue has been raised and that the uncontroverted evidence was that the emergency pian..culd function with or without SPH's availability.
(See Tr.1720-21, 2529-32).
Furtnermore, Joint Intervenors have already recuested tre a;;earan;: of Mr. Gerusky and withdrawn that repuest.
During the course of the ev:-
dentiary hearing in April 1977, Joint Intervenors repuested a BRM.;itness to address SRH's capabilities.
(Tr.838).
Folicwing the exclaratice b;.
Pennsylvania's counsel that 'ennsylvania had pecduced civil defense witnesses to testify on Contention 3 because that contention acpeared to be directed at the ability to evacuate, not the expertise of BRH (Tr.888-39) and following the Licensing Board's apparent agreement with that reading of Joint Intervenors' contention (Tr.390), Joint Inter-venors withdrew their request (Tr.891).
Joint Intervenc's' request was never renewed throughout the extended discussions and cross-examination of witnesses on the ;cbject of 3RH reduced capability.
Therefore, it is our position that Joint Intervencrs had an opportunity to request a 3RH witness to address this subject, but chose not to.
Thus, Joint Inter-venors have not satisf!ed the first element of the Verment Yankee test.
The Joint Intervenors have failed to meet the second element of the Vermont Yankee test - the significance or gravity of the issue.
Certainly the subject of emergency planning generally involves significant issues and the need to demonstrate an adequate and wcrkable emergency evacu-ation plan is in itself significant. We do not believe, however, that g--
(,t(f * (A n 7 _
a-2
@ Gerusky to acdress ERH cac2:,.lities cculd lead t: ; D fferent result
"/
frcm that reach 2c by the Licensing Ccarc cn tne existing record.1 Tj,e basis of the joint Interver. ors' reques; is that ERh will not be able to perforn as anticipated.
F0r e different reason b *he same corcern was raised during the hearing and was fully addressed.
Jcint Intervenors argue ("otion, p.2) tha* the Licensing Board " asst.med withcut support cn the record that there would be other grcups which would pick up the slack if 3RH aas unable to cerforT' (Initi;l Decisicn, para. 64).
The evidence the record is uncontroverted that should :here be a reduction in BRH capability the " slack" would be taken up.
SRH acts as the radio-logical expert advisor to state and local authorities, reviewing the information and recc=endations of Applicants and, in turn: providing infor ation and reccmmendations to those within the state, such as civil defense, wno actually carry cut an evacuatien. E
The Civ-1 Defense witnesses presented by the Cctmanwealth testified that they uculd effectively be able to carry cut evacuation procedures on the basis of radiological '.nfor ation frcm the Acplicants or other sources such as
-6/ Northern Indiana Public Service Co. (Sailly Generating Sta*.icn, Nuclear-1), ALAS-227, 3 AEC li6, al3 (1974); Duke Pcwer Comcany (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619, 620 (1976).
U The possibility that 3RH could suffer a reduced capability was suggested by a Ny 1977 Press Release issued by the Secretary of Environmental Resources (Scard Exhibit 1).
The Press Release indicated that there was a char.ce of a budget reduc *icn and that, therefore, 3RH would suffer a reduction in its radiological health environmental ronitoring program and emergency response cacacility.
5/ cclicants' Testimony of John G. Herbein, folicwing Tr.757, at a.
A ot,i -o.q b
@ the Ncu' in the event BRH could not resp;nd. 2/
0
r.
Hercein, fo r t*e Applicants, ated hat ::rovisions aculd be made, in conjunction..ith the NRC, to provide the same capability as the ERH v.culd have provided. lo' Thus, the alleged new evidence would not raise a safety deficiency, ';u*
instead, if true, would cnly raise an issue (cecreasec capability of SRH) which has already been thoroughly aired on *he record.
It is therefore cle2r that ccmcelling Mr. Gerusky to testify on ERH cacabili*ies wculd not lead to a result other than a favorable finding en the adequacy and workability of TMI-2 emergency evacuation planning.
Conclusion For the reasons set forth above, Joint Intervencrs' Motion should be denied.
Respectfully su,bmitted, j
, n di
- i. s'::~)
y'. :u r /, l/ '}Y t :"
Henry J'.
McGurren Counsel for NRC Staff Dated at Bethesda, Maryland this ist day of May,1978 1/ Tr.1720-21, 2529-32. The Joint Intervencrs have incorrectly cited the Seabrook decision for the precedent that there can be no sucn reliance on Applicants' infor~ation.
Instead Seabrcok held that the Aoplicant is not required by the Ccmmission's regulations to include in its emergency plan dynamic crotection (in *ie event of an accident) of ;;ersons located cutsice of the Low Poculation Zone.
Public Service Cemcany of New Hamoshire (Seabrock Station, Units I and 2), ALAB-390, NRCI-77/a, 733 at 7af (1977).
-10/ Tr.157C-71, y -c-m
.. c
.. s.. 1 e n ~.... r ; n r.%... _r., 7..,-
L
.1. ~ v O
-v.
4 %. v
-c.,,...n
.s.L.C
..m-.. z. u a..... m u..
.:2.v n =o r.:..
.u"
.a.~. C '. '.T r.
S.'..==~ ~ "
.m'.Va
'u.' C =.'. = '..'. u~
.i..=*..a..'. = O <'. =~n a.
In the Matter of
)
.V.ETROPull AN EDISC.
C"' ? L Y,
)
Docket '.o. 50-300
. h_r..
)
)
u nree
,...ie.m, and.N,uc.e ar S t anon,
,s i
Unit ".)
)
-._ R v. i.c c r,.1.erC.:.. r c e. er x
v I hereby cartify that cc;:ies of "NRC STAF~ RESPONSE TO INTER'/ENCRS' MOTION TO CCMPE THE APPEARANCE OF THCMAS GERUSr.Y" in the above-cactionec croceed-ing have been served on the follcwing by decosit in the United States mail, first class, or, as indicated by an asterisk thrcugh deccsit in t.he 'ucl e a r Regulatory Cor=ission's incernal mail syste... this 1st day of May,1973:
Alan S. Rosenthal. Esc,., Chairman" Mr. Gustave A. Linen'oerger" Atomic Safety and Licensing Appeal Atomic Safety and Licensir.g Ecard Panel U.S. Nuclear Regulatory Ccm.tssion U.S. Nuclear Regula.ory Commission Washington, D. C.
20555 Washington, D. C.
20555 George F. Trowbridge, Esc.
Dr. W. Reed Johnson, Member" Shaw, Pittman, Pctts & Trow'oridge Atomic Safety and Licensing Appeal 1800 M Street, N. W Panel Washington, D. C. 20036 U.S. Nuclear Regulatory Com r.ission Washington, D. C.
20555 Dr. Ernest O. Sala Professor, Fisheries Research Jerome E. Shariman, Esq., c.fember" Institute, WH-10 Atomic Safety and Licensing Appeal College of Fisheries P anel University of Washington U.S. Nuclear Regulatory Cc= mission Seattle, Washington 93195 Washington, D. C.
20555 Dr. Chauncey R. Kepford Edward Luton, Esq., Chairman" Citizer:s for a Safe Envirar. ment Atomic Safetf and Licensing Ecard 433 Orlando Avenue U.S. Nuclear Regulatory Commission State College, Pennsylvania 10801
ashhg ton D. C. 20555 OO'923
Ka rin '.'. Garter Assistant Attorne.
Atomic Sr.:ct and Licensin; General Appeal Panel' Offic e of.r.n:crcement U.S. Nuclear Reaulator f Comm:ss:;r Department of Environce.mtal Washin gton, D. C. 20555 Resources 709 Health and 'Velfare Building Docketing and Ser. ice Section
. ennsy,vania
,, L, O Of: ice at t.u.e secretar-narrisourg, p 1.
U.S. Nuclear Rec.ulatory Ccm-ission Ms. Judith H. Johnsrud Wa s hin 3 ton, D. C.
20555 433 Cria ', Avenue State College, Pennsylvanta liC01 Atomic Safet f and Licensing Scard Panel" U.S. Nuclear Regulatory Commissien Washing:en. D. C. 20555 0,,
.)
}/
\\
') ;"%
- % y l / t4-Henry J./ McGurren Counsel for I;RC Staff e.t,
O'19.
...