ML19210B511
| ML19210B511 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 06/22/1973 |
| From: | Olson D US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7911090355 | |
| Download: ML19210B511 (9) | |
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June 2, 1973 UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of METROPOLITAN EDISON COMPANY, ET AL. )
Docket No. 50-289
)
(Three Mile Island Nuclear Station, )
Unit 1)
)
STAFF'S OBJECTIONS TO AND MOTION FOR RECONSIDERATION OF THE ORDER OF MAY 31, 1973 On May 31,1973,E the Atomic Safety and Licensing Board (Board) issued an order which provided the following:
(1) The Board would brook no challenge to the Commissicn's regulations and that any contention which, in whole or in part, seeks to challenge a Coninission regulation is disallowed. The intervenors in reframing their contentions were directed to guide themselves accordingly.
(2) The Board would not rule specifically on the allowability of Contentions a, f, g,15(second),16, and 17 as requested by the Applicant.E If Staff counsel did not receive a copy of the order until June 5, 1973, and therefore was not served, in accordance with 52.751a (d) until that date.
2] Tr. 10-11.
1 7911090 S o g G.
(3) A discovery schedule was established which provided for the end of discovery requests by June 21, the end of responses to discovery by July 5, and a revised statement of coritentions by July 19, 1973.
(4) The Board contemplated holding a second Prehearing Conference the week of July 30, 1973.
The regulatory staff (Staff), pursuant to 12. 751a(d) of the Comission's Rules af Practice.," 10 CFR Part 2, takes the following exceptions to the order:
I.
The Staff believes the Board's Order concerning its interpretation of the provisions of 10 CFR 62.758 concerning challenges to Comission regulations requires clarificatien. Apparently the Board construes 52.758 as barring an intervenor under the circumstances present in this proceeding from challenging Commission regulations. We believe such an interpretation does not comport with the provisions of 92.758. 82.758 prohibits any attack upon Commission regulations in a licensing proceeding unless a party presents special circumstances showing that a waiver or exception to the challenged rule should be pennitted.
This regulation clearly contemplates that a party may, without 1566 022
restriction, through either a petition to intervene or thereafter by petition, present a challenge to one or more Comission regul ations. Thus, the mere presentation of a challenge to a Comission regulation is not a valid basis for rejection. The appropriate test under 92.758 is whether or not the party has through his affidavit adequately demonstrated that special circumstances exist to pemit a challenge.
This test should be applied in this case, and those contentions, that are detemined by the Board to present challenges to Commission regulations should be evaluated accordingly.
The Board in its interpretation of 12.758 also appeared to conclude that a rule challenge was prohibited if diat rule were the subject of an ongoing rulemaking proceeding. The fact that there is a pending rulemaking proceeding is a consideration which is not dispositive of whether a challenge should or should not be allowed in accordance with the provisions of 52.758.E A party should be afforded the oppo.'tunity to make such a showing under 12.758(b) even if the rule being attacked is the subject of a rule making hearing. The fact that a challenged rule is also the subject of a rulemaking hearing merely creates a greater burden on a party to show special circumstances, and a party should not be foreclosed from making such a showing as a matter of law. (Commission Memorandum and Order dated y It is noted that of the four pending rulemaking hearings, only the Emergency Core Cooling Systems hearing constitutes a challenge to an existing Commission rule or regulation. 1566 023
December 19, 1972, In the Matter of !!crthern States Cornpany (Monticello fluclear Generating Plant, Unit 1)).
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In sumary, any contention detennined by the Board to represent a challenge to an effective Comission regulation should be accepted or rejected on the basis of whether or not the "special circumstances" test referred to above is met.
II.
At the prehearina conference oi May 24. 1973, the Aoplicant requested that the Board rule on the allowability in whole or in part, of contentions aN, fE/, g6f, o, (15 second) I, 16 /,
0 17 9/, 20, and 33.
Each contention was discussed in turn by all parties and during this process intervenor's counsel with-a drew o, 20, and 33.
It was the position of the Applicant and the Staff that these contentions involved questions of lawbl and that they were not susceptible to being made 1566 024 4/ Tr. 51-54.
T/ Tr. 57-59.
F/ Tr. 60-62.
7/ Tr. 68-70.
F/ Tr. 71-72.
7_/ Tr. 74-76.
-10/ Tr. 53-54... _ _
'O acceptable by redrafting. E It was the position of the inter-venor that he expected the Board to disallow certain contentions because of past Atomic Safety and Licensing Appeal Board decisions but that he wanted to preserve certain objections for a possible later appeal.E The Staff requests that the Board rule specifically on the six remaining contentions. We believe that these six contentions have been adequately argued on the record and that no purpose is served by delaying such a ruling.E III.
The Board's Order contemplated a second Prehearing Conference during the week of July 30, 1973. At the Prehearing Conference of May 24, 1973, the Staff requested that the next prehearing conference be held the week of August 13,1973.E This request 11/ The applicant and the Staff argued that contentions-a, 15[second],16, and 17 were beyond the scope of the hearing because they dealt with fuel cycle questions and were prohibited under the Shoreham Decision, ALAB 99. The applicant and the Staff argued that contentions f and g were challenges to the Comission's rules and regulations and that a special showing had not been made in accordance with the requirements of section 2.758.
12/ Tr. 53, 58, 61.
U/ Staff counsel considered most of the remaining contentions vague and, therefore, susceptible to redrafting to make them more specific. The parties generally agreed that a ruling as to the remaining contentions should be delayed until after the intervenor had had an opportunity for discovery and time co redraft the remaining contentions.
See Tr. 16, 19, 22, 47-49, 54.
14/ Tr. 43.
1566 023 s
was based on the anticipated ACRS meeting date of August 9-11, El 1973.E# Both the Coanionwealth of Pennsylvania's counsel and the intervenor's counselEI requested that the next conference be scheduled after the anticipated ACRS meeting. We believe more meaningful and substantive matters could be accomplished at a prehearing conference held after the ACRS meeting.
- Hence, we request the July 30 prehearing conference be rescheduled during the week of August 13, 1973.
IV.
Despite the general agreement of the parties to the applicant's proposed discovery schedule,El the Board's Order provided much less time than requested. The Board by Order dated June 20, 1973, extended this schedule in part by granting the intervenor an additional week (as originally provided in the applicant's proposed schedule) to request infomation.
However, it follows as a corollary that the Staff's and the applicant's time for response should also be extended one week. Accordingly, we request that the original discovery schedule proposed by the applicant ta adopted.
1566 026 15/ Tr. 39.
T6/ Tr. 44.
T7/ Tr. 18.
T67 Tr.11,19, 26, 3/.
3 Tr. 90. _. -__
CONCLUSION For the' reasons set forth above, it is the position of the staff
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that the Beard's Order, dated May 31, 1973, should be modified and clarified as indicated above.
Respectfully submitted, fx Douglas K. Olson Counsel for AEC Reguhtory Staff Dated at Bethesda, Maryland the 22th day of June, 1973.
1566 027. - - _... -..
UNITED STATES OF AMERIr'
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ATOMIC ENERGY COMMISSls a BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
METROPOLITAN EDISON COMPANY, ET AL. )
Docket No. 50-289
)
. (Three Mile Island Nuclear Station, Unit 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of " STAFF'S OBJECTIONS TO AND MOTION FOR RECONSIDERATION OF THE ORDER OF MAY 31, 1973, in the above-captioned matter, have been served on the following by deposit in the United States mail, first class or air mail, this 22nd day of June,1973:
Charles H. Haskins, Esq.
Lawrence Sager, Esq.
Atomic Safety and Licensing Board 45 High Street Windy Hill Farm Pottstown, Pennsylvania 19464 Bluemont, Virginia 22012 Frank R. Clokey, Esq.
Max D. Paglin, Esq.
Special Assistant Attorney Atomic Safety and Licensing Board General U. S. Atomic Energy Commission Room 219 Washington, D.C.
20545 Towne House Apartments Harrisburg, Pennsylvania 17105 Mr. M. Stanley Livingston 1005 Calle Largo W. W. Anderson, Esq.
Sante Fe, New Mexico 87501 Theodore Adler, Esq.
Office of the Attorney Dr. John R. Lyman General Department of Environmental Department of Justice Sciences and Engineering 2nd Floor University of North Carolina Old Museum Building Chapel Hill, North Carolina 27514 Harrisburg, Pennsylvania 17120 Mr. Ralph S. Decker Herbert C. Goldstein, Esq.
Route 1, Box 190D 133 State Street Cambridge, Maryland 21613 Harrisburg, Pennsylvania 17101 George F. Trowbridge, Esq.
Miss Mary V. Southard Shaw, Pittman, Potts & Trowbridge Chairman, Citizens for a Safe Barr Building Environment 910 - 17th Street, N. W.
P. O. Box 405 Washington, D.C.
20006 Harrisburg, Pennsylvania 17108 1566 028
2-Mr. P.uglas Baker Atomic Safety and Licensing Environmental Coalition on Appeal Board Nuclear Power U. S. Atomic Energy Commission 1919 Sandy Hill Road Washington, D.C. 20545 Norristown, Pennsylvania 19401 Mr. Frank W. Karas Atomic Safety and Licensing Chief, Public Proceedings Staff Board Panel Office of the Secretary of the U. S. Atomic Energy Commission Commission Washington, D.C. 20545 U. S. Atomic Energy Commission Washington, D. C.
20545 WY".s $$'A Douglas K. Olson Counsel for AEC Regulatory Staff 1566 029 o
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