ML19254F306
| ML19254F306 | |
| Person / Time | |
|---|---|
| Site: | Skagit |
| Issue date: | 10/09/1979 |
| From: | Leed R LEED, R.M., SKAGITONIANS CONCERNED ABOUT NUCLEAR POWER (SCANP) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 7911090010 | |
| Download: ML19254F306 (17) | |
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UNITED STATES OF AMERICA b c7,, g NUCLEAR REGULATOkY COMMISSION s
% y T BEFORE THE ATOMIC SAFETY AND LICPNSING APPEAL BOARu In the Matter of )
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PUGET SOUND POWER r. LIGHT ) DOCKET NOS. STN 50-522 COMPANY, et al., ) $0-523
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(Skagit Nuclear P.Ner Project, )
Units 1 and 2) )
)
)
INTERVENOR SCANP'S MOTION FOR RESCHEDULING OF EVIDENTIARY HEARINGS Intervenor SCANP respectfully requests the Board to rescind its Order of October 1, 1979, scheduling hearings to resume on October 25, 1979, and thereafter, and to rescne-dule evidentiary hearings at a future time which meets the convenience of the parties and allows for a full and orderly presentation of the evidence. SCANP requests also that the Board rescind Paragraph 5 of its Order of October 1, 1979, because the questions posed are unduly restrictive, and indeed, do not comply with applicable NRC regulations governing the scope of inquiry into geology and seismology matters.
The Board 's Order scheduling hearings to resume on October 25, 1979, is contrary to 10 C.F.R.S2.703(b), denies Cue process to Intervenor SCANP, and is totally unworkable m
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in that it presents unresolvable conflicts with other obligations of the parties and affords insufficient time for preparation of the extensive evidentiary presentations required by the complexity of the issues to be addressed.
10 C.F.R. 52.703(b) provides:
The time and place of hearing will be fixed with due regard for the convenience of the parties or their representatives, the nature of the proceed-ing, and the public interest.
The schedule fixed by the Board provides "due regard" for none of these concerns, and is especially prejudicial to Intervenor SCANP. ,
First, there has been no regard for the convenience of the parties. SCANP was neither advised nor consulted about the proposed hearing date prior to the Board's Order. The 3
Order, received on October 5, 1979, affords SCANP but three weeks to prepare its presenta tion for the most complex issues to be considered by the Board in this proceeding. The incon-venience to SCANP is especially great, because SCANP is af-forded only a few weeks to review and respond to the volumi-nous presentations of Applicant and Staff, much of which has been received only recently. Indeed, the S taf f's prefiled testimony was not distributed until after the Board's Order fixing the schedule was sent, and Applicant has submitted yet more data (offshore seismic surveys) recently (September 14, 1979) which has not been made available to SCANP because of its alleged proprietary nature. SCANP has expressed to the 1302 534
J Board in great detail its 'c'oncerns that all hearings schedules incorporate an orderly prehearing procedure and afford SCANP an adequate time to respond to the lengthy submittals of Ap-plicant and Staff, who heve had a considerably greater amount of time to conduct their reviews and prepare their presenta-tions. See, e.g., Tr. 11867-908. We request again that these legitimate concerns be addressed, and the hearings be rescheduled to afford SCANP an opportunity commensurate with that af forded Applicant and S taf f to review the data and pre-pare presentations.
SCANP objects also to the schedule of hearings for Satur-days. Saturdays are not a usual day of business, and the availability of expert witnesses, as well as attorneys and their parties, is at best uncertain. Counsel for SCANP do i
not maintain staf f nor business hours on Saturdays. This scheduling is especially prejudicial to SCANP, because SCANP's licited resources do not afford SCANP the luxury enjoyed by Applicant and Staff of having counsel who are able to devote their full time exclusively to this proceeding. The schedul-ing of evidentiary sessions five days a week for several weeks on end is burdensome enough to an intervenor of limited re-sources such as SCANP. Adding extraordinary Saturday sessions to such a schedule is an extraordinary step beyond what is contemplared by the Commission's Rules of Practice, and again reflects tb2 absence of due regard for the convenience of SCANP and other parties in the scheduling for this hearing.
The Board Chairman so recognized, characterizing as " unde-sirable" routine Saturday sessions. Tr. 11952-53.
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Second, due regard for the nature of the proceeding requires postponement of the hearings. These proceedings involve complex and technical issues, and require detailed and time consuming re-iew and preparaticn, which cannot be performed adequately within the short time af forded by the Board 's Order. This is especially so where a significant
. amount of prefiled testimony from Applicant and Staff has not been received or has been received only recently, and must now be transmitted for the first time to expert wit-nesses in various locations across the country. This necessary process consumes addit.ional time, detracting from the time allowed for preparation, and renders even more difficult the aircady impossible task of reviewing hundreds 3
and even thousands of pages of complex technical material in only three weeks, and in coordinating that review into a meaningful presentation. The complex nature of this pro-ceeding and the large nutber of important issues to be considered requires a schedule which incorporates more time for preparation of evidentiary presentations.
Finally, the public interest also requires that the hearings be rescheduled. The overwhelming f actor of impor-tance in gauging the public interest is, of course, whether the schedule assures a presentation whicn is suf ficiently detailed and unders ta:dable to form the basis for an i --
formed decision which assures the public safety. As we
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.. J have demons trated above, the schedule fixed by the Board does not meet the public interest because it does not afford In-tervenor SCANP the opportunity to nake a complete and ade-quate presentation. But this public interest factor also weighs heavily with respect to the presentations of Appli-cant and Staff, which cannot be completed adequately by the time the hearings are convened. As S taf f noted in its let-ter transmitting its prefiled testimony, Applicant submitted further data to the U.S.G.S. on Septemmber 13, 1979, the same date on which the U.S.G.S. submitted its supplemental report. Until this new data is evaluated by S taff and sub-mitted to all the parties for their further review and eval-uation (which will be time-consuming because Applicant asserts that the data is proprietary), the geology and seismology issues will not be ripe for presentation. Similarly, Staf f at this time is unable to list which witnesses from the U.S.
G.S. will be available at the hearings. Without such a list, SCANP is unable to prepare its case. Any hearing which in-cludes the geology and seismology issues without evaluation of the new data submitted by Applicant would be premature at this time. It is clearly not in the public interest to allow yet another incomplete and partial presentation of geology and seismology to go forward in this case. Several such partial presentations have been of fered in the past, and have led only to further delays. The geology and seis-mology issues clearly should be held in abeyance until
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J such time as a full presentation on these issues can go forward, so that the issues may be resolved co=pletely by the Board.
Nor is the possibility that the Applicant's zoning may expire at the end of the year if coitstruction is not begun a f actor which tilts the public interest in the least degree. The sole interest of this Board is in making an informed and reasoned decision based upon an adequate and complete record. If Applicant's zoning does empire, Skagit County has appropriate mechanisms to determine whether the public interest requires an extension or a renewal of that zoning. We anticipate that S taff will concur in SCAN?'s judgment that the expiration of the rezone contract is irrelevant to this proceeding, and forms no basis for unduly accelerating the hearing schedule.
The Board's Order violates not only its own regulations, but also denies SCANP due process of law. With respect to the rights of an intervenor in an administrative proceeding, due process is generally interpreted to mean that the intervenor is af forded an adequate opportunity to partici-pate meaninafully in the administrative process. Yet the Board's Order was entered without regard for the rights and convenience of SCANP, and affords SCANP a wholly inadequate time to prepare its evidence and participate meaningfully in contributing to the record on the issues to be considered at i302 338
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d the forthcoming hearing. This denial of due process is especially severe in view of the important contributions tc the record which SCANP previously has made with respect to geology and seismology.
The serious lack of due process afforded by the Beard's schedule is compounded even further by the require-ment that SCANP prefile its testimony by October 18, 1979, less than two weeks af ter SCANP received the Staff's prefiled testimony, and without access to either Applicant 's most recent data (offshore seismic surveys) or the Staff and USGS review of that data. It is impossible to review the S taff's testimony, which is voluminous, and prepare SCR$?'s case for prefiling in such a short time frame.
This problem, of course, is intensified by the need to devo e full attention and efforts to preparation of pro-posed findings, until October 12. SCANP requests the Board to rescind this order, and to substitute a more realistic s chedule for prefiling.
In addition to the impossibly short time which SCANP is afforded to respond to the recently received submittals f rcs Applicant and S taf f, SCANP is prejudiced further in this regard by its inability to obtain discovery with respect to these issues. SCANP requested discovery from Applicant on September 14, 1979, regarding " proprietary' data from the three voltme Bechtel report received only shortly before the _
discovery request was served. Applicant 's objection based on 1302 ?39
.. J its contention that SCANP's discovery was untimely because the request was not made two months before the " proprietary" data was made available is patently frivolous, and further denies SCANP the opportunity to prepare its case and parti-cipate meaningfully in the administrative process. The June 1, 1979 discovery deadline was limited explicitly to matters to be taken up at the July 17, 1979 session. Tr. 11945-46; Order of June 29, 1979, at 5. Any suggestion that the parties or the Board contemplated that geology and seismology issues would be considered at the July 17 session, or that the June 1 discovery deadline applied to such issues (where prefiled testimony was not even due until June 1) is com-pletely contrary to the record, and the understanding between the parties and the board. See, e. g . , Tr. 11868-69 (Staff
" hopefully" will issue SER supplement on geology and seismo-logy in September); id,. at 11871 (Staf f and U.S.G.S. Geology review will continue through summer); id,. at 11887-91 (Appli-cants describing testimony to be prefiled for geology); id.
at 11907-08 (SCANP states specifically that Dr. Cheney cannot review data, complete report, and be prepared to testify at July 17 session); i d,. at 11908 (Baard Chairman agrees with SCANP that commitment cannot yet be made; reiterates September as best time for geology hearings; Staff concurs); id,. at 11930-31 (Board Chairman again agrees that SCANP cannot commit to July 17 session, and again reiterates that S taff is
" hopefully targeting a September time frame"); Letter from 1302 340
Richard Black to Valentine Deale, dared Aug.15, 1979 (all issues to be taken up in August exceot geology and seismology, issues .on which Staff is not prepared to offer testimony until October, 1979); Board Order dated June 29,1979, at 4 (Board again reiterates that Staf f is " hopefully targeting a September time frame " for geology); Board's Miscellaneous Order Dated September 13, 1979, at 17 (Board again indicates uncertainty as to when geology can be heard). It would be difficult to imagine clearer indications that geology and seismology were not among the issues to be considered at the July 17 session and were not covered by the June 1 discovery deadline. That Applicant did not submit much of the material which forms the basis of SCANP's discovery until on or af ter i
June 1 demonstrates further that application of this deadline would serve to eliminate SCANP's right to discovery completely, a result clearly not agreed to by the parties, see T r.
11372-73; jd. at 11883-84, nor intended by the Board. That Applicant clai=s that the prompt and timely discovery sub-mitted by SCANP interferes with Applicant's preparation of its case only emphasizes the unworkability of the entire s chedule. SCANP is not responsible for this schedule, and has objected to its burdensome nature in the past. SCANP's basi:
right and opportunity to prepare an adequate case shculd not and cannot be made to suffer.
It has not been ' usual practice in this proceeding to convene hearings on less than thirty days notice; indeed, 1302 341
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the parties have almost always been allowed a much greater time period for preparation, which incorporates at least thirty days' review of prefiled testimony prior to the hearing. After five years of proceedings, there is no legitimate purpose to be served by decying the parties adequate time to prepare. To the contrary, the unseemly
' haste with which the applicant seems determined to proceed will prevent completion of an adequate record, after many years of hard work by the parties and Board to assure a complete record which . forms the basis for an infor=ed and rational decision which serves the public interest.
SCANP served discovery requests tpon Staf f on October 5, 1979, the same date on which SCANP received the pre-filed
- testimony of S taff. Even if S taf f im=ediately responds to our discovery requests, it is by no means certain that the responses will come early enough to afford SCANP the oppor-tunity to make use of the information learned in time for the scheduled hearing. Yet it is obvious that the request was made as soon as possible, coming on the same date that the Staff 's prefiled testimony was received, and SCANP certainly cannot be held responsible and subjected to great prejudice because of the unreasonable schedule. This situation is especially unacceptable to SCANP in view of SCANP 's insis-tence that all schedules afford adequate opportunity to conduct meaningful discovery, a right especially important to an intervenor whose limited funds do not allow it to 1302 3!!2
conduct research and evaluation on the scope available to Applicant and S taf f. See Tr. 11883-84.
In short, because the schedule imposed by the Board denies SCANP its major source of information needed to prepare its case, i.e. , discovery, and because the time period afforded SCANP to prepare its case is impossibly short in any event, the commencement of evidentiary hearings on October 25, 1979, in ef fect dentes completely to SCANP the opportunity to participate meaningfully in the adminis-trative process, and therefore denies due process of law.
The Board's schedule presents also several unre-solvable conflicts in scheduling which must be addressed.
On October 8,1979, counsel for SCANP received an Order i
from the Washington Supreme Court fixing the due date for SCANP's reply brief in the state certification case on Nove ber 4, 1979. Although SCANP is willing to request an extension of time within which to prepare the reply brief, it is by no means certain that an extension will be gran-ted. In fact, counsel for SCANP has made two requests for extension in which to prepare-a reply brief which were denied this year by the State Supreme Court, including one case in which opposing counsel raised no objections to the requested extension. Several requirements imposed by this Board also conflict with the hearing schedule. The preposed findings of fact wh'ich are due on October 12 have required
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.J extensive effort and a great amount of time by SCANP's counsel which necessarily detracts from the amount of time which can be devoted to preparation for the forthcoming hearing. Further proposed findings are due from SCANP on October 26, 1979, and it appears impossible that SCANP can prepare its case and these proposed findings simultaneously.
Again, what the Board requires of Intervenors is unreasonably burdensome and impossible, and, if the schedule is maintained, will serve to deny to SCANP the opportunity to present all of its concerns and participate meaningfully in this proceeding.
Substantively, the Board's Order also must be rescinded.
In Paragraph 5 A, the Board asks "What is the worst-case seismic event having reasonable probability of occurrence i
affecting the proposed plant during its lifetime?" The
" reasonable probability" standard applied by the Board is clearly contrary to 10 C.P.R. Part 100, Appendix A. This appendix provides that more conservative determinations may be required for sites located in areas having complex geology or high seismicity. The Skagit Site is clearly such an area, and it cannot be contended seriously that the
" reasonable probability" standard incorporates the required cons erva tism. Similarly, the appendix requires investigation in sufficient scope and detail to provide " reasonable assur-ance" that the geologic, seismic and engineering character-istics of a site are sufficiently well understood to permit 1302 344
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- an adequate evaluation of the proposed site, and to provide sufficient information to support the determinations required by the regulations. The " reasonable probability" standard does not corport with this requirement.
The regulations require that "the earthquake which could cause the maximum vibratory ground motion at the site should be designated the Safe Chutdown Earthqua' ke. " 10 C.F.R. Part 100, App. A, SV(a) (emphasis supplied). The specific procedures given for determining the design basis for the SSE indicate that it may be necessary to assume an earthquake larger than that of the maximum earthquake his-torically recorded, and require generally that the procedures be applied in a conservative manner. The " reasonable pro-bability" standard suggested by the Board clearly implies an investigation of lesser scope than that required by the regulations, which clearly envision investigation which with some certainty identifies the greatest earthquake cossible.
Even then, the regulations recognize situations in which the data is not sufficiently certain, and require assumptions even more conservative than the largest possible earthquake.
SCANP therefore insists that the Board apply the cri-teria and standards provided in the regulations to its inquiry into geology and seismology, and rescind that portion of its order which suggests that the Board will guide its inquiry, and the scope of the testimony allowed to be intro-duced, with regard to questions which are clearly more
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restrictive than the regulations and the Atomic Energy Act provide.
Accordingly, SCANP requests the Board to rescind its Order of October 1, 1979, and to reschedule evidentiary hear-ings only af ter consultation with SCANP, and after due regard for the convenience of SCANP and other parties, including Skagit County and FOB /CFSP, the complex nature of these proceedings, and the public interest in obtaining a complete record. SCANP further requests that the Board rescind paragraph 5 of its order, and instead guide its inquiry with regard to geology and seismology in accordance with the regulations provided in 10 C.F.R. Part 100, App. A.
SCANP does not request an inordinately long or open-ended delay; rather, SCANP asks only that it be afforded a reasonable fraction of the time given Applicant and Staff to prepare their tes timony. With the cooperation of the parties, in fact, only a minimum of rescheduling is necessary to address SCANP's concerns. SCANP resquests only an uninterrupted 30 day period in which to prepare for this final evidentiary session, free from the burden of preparing propos ed findings of fact. If Staf f and Applicant can provide prompt responses to SCANP's discovery requests, if Appplicant can provide SCANP's seismology expert with a ecpy of the recently submitted " proprietary" data at once, and if the Staff and DS3S reviews of the " proprietary" data are quickly provided, the cases of Applicant and Staf f will i302 'a6
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.- J be complete and SCANP can proceed to prepare its presentation pro =ptly. If these steps are all taken by October 25, when SCANP's second set of findings are due, then SCANP can prepare its case for presentation 30 days thereaf ter, by November 25. If the Board desires to reschedule the submission dates for the second set of findings, and the steps outlined in this paragraph are completed by October 15, SCANP fully anticipates that it can be ready to proceed within 30 days, by November 15.
Finally, SCANP requests that the Board grant this motion promptly, or, in the alternative, that '.ne motion be certi-fied to the Commission pursuant to 10 C.F.R. 52.718(i) so that SCANP may obtain timely and meaningf ul relief.
3 DACED this day of October, 1979.
Respectfully submitted, ROGER M. LEED and MICHAEL W. GENDLER Counsel for SCANP 1302 V7 15-hmm- w mee emuun4 N w-- w-h--
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We?*** l UNITED STATES OF AMERICA -
8 NUCLEAR REGULATORY COMMISSICN M IV '
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
PUGET SOUND POWER & LIGHT ) DOCKET NOS. S"'N 5 0-5 22 C OMP ANY , et al., ) 50-523
)
)
(Skagit Nuclear Power Project, )
Units 1 and 2) )
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of:
INTERVENOR SCANP'S MOTION FOR RESCHEDULING OF EVIEENTIARY HE ARING S d a:ed October [,1979, have been served on the fcllowing by depositing the same in the United States mail, pectage prepaid, on this f/I day of October, 1979.
V alentine B. Deale, Esq. , Chairman Docke:ing and Service Se:: ion A cmic Safety and Licensing Board Office of the Secreta:.j C .S . Nuclear Regulatory U.S . Nucle ar Eegulatcry Cor:nission Cc:missica 1:01 Connecticut Avenue N.W. Washington, D.C. 20535 W ashington, D.C. 20036 Richcrd L. Slack, Esq.
C r. Frank F. Ecoper, Member Counsel for NEC Staff A tomic S afety and Licensing Board U.S . Nuclear Regulatory 5 :hool of Natural Resources Cormissicn University of Michigan Office of the Executive Iegal A.nn Arbor, MI . 48104 D irector Washington, 3, C. 20555 G2 stave A. Linenberger, Member Atomic Safety and Licensing Board Nicholas D. Lewis, Chair:an C .S. Nuclear Regulatory Energy Facili y Site Evalc atic .
Cor=iss ion . Council W ashington, D.C. 20555 820 East Fif th Avenue Olyacia, Washington 985*4 C ertificate - 1 1302 W
Richard M. Sandvik, Esq., Russel W. Busch Assistant Attorney General Evergreen Legal Services Department of Justice 520 Smith Tower 500 Pacific Building Seattle, Washington 98104 5 2 0 S . W. Y amhill Portland, Oregon 97204 Thomas Moser Deputy Prosecuting Attorney Robert Lowenstein, Esq. Skagit County Courthouse Lowens tein, Newman, Reis & M t. Vernon, Washington 98273 Axelrad 1025 Connecticut Avenue, N.W. Warren Hastings Washington, D.C. 20036 Portland General Electric Co.
121 S.W. Salmon Street
. J ame s W. Durham, Esq. TB 13 Portland General Electric Co. Portland, Oregon 97204 121 S.W. Salmon Street TB 17 Portland, Oregon 97204 CFSP and FOB E. Stachon & L. Marbet 19142 S. Bakers Ferry Rcad Boring, Oregon 97009 Canadian Consulate General Peter A. van Brakel Vice-Consul
, 412 Plaza 600 6th and Stewart Street Seattle, Washington 98101 F. Theodore Thonsen Perkins, Cole, S tone, Olsen
& Williams 1900 Washington Building Seattle, Washington 98131 Alan P . O ' Kelly P aine, Lowe, Cof fin, Herran
& O' Kelly 1400 Washington Trust Financial Center Spokane, Washington 99204 D ATED : h Mxt. 7, //M R.)GER M. LEED
. By '
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