ML19256E531
| ML19256E531 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 10/09/1979 |
| From: | Swanson D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7911070580 | |
| Download: ML19256E531 (13) | |
Text
.j 10/9/79 NRC PUBLIC DOCUEif Ws'M 4',
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1 UNITED STATES OF AMERICA
//
NUCLEAR REGULATORY COMMISSION k
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1-BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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is METROPOLITAN EDISON COMPANY,
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Docket No. 50-289 NC'
-- -ET AL.
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(Tnree Mile Island, Unit 1)
)
NRC STAFF RESPONSE TO MOTIONS FILED BY CEA TO AMEND MEMORANDUM AND ORDER On September 27, 1979, Chesapeake Energy Alliance, Inc. (CEA) submitted a
" Motion to Modify Memorandum and Order Setting Special Prehearing Conference" (Motion), in which CEA requests the Board to make certain modifications to the Memorandum and Order which the Board issued on September 21,1979 (Order).
CEA amended its Motion via its " Supplement to Motion to Modify Memorandum and Order Setting Special Prehearir.g Conference" dated September 28,1979 (Supple-ment) and its "Second Supplement to Motion to Modify Memorandum and Order Setting Special Prehearing Conference" also dated September 28,1979 (Second Su pplement).
In these submittals, CEA moves the Board to modify its Order in the following manner:
1.
require delivery of all petitions to intervene and related motions to the intervenors in the proceeding; (Motion, pp. 2, 3) 2.
require a special conference among those inter /enors challenging the i
reopening of TMI-1 to provide for discussion as well as identification and consolidation of contentions; (Motion, p. 3)
' "3 121 7911070 SPC.
. 3.
modify the schedule reflected in the Order so that the deadline for submitting draft contentions to the Staff and Licensee would be post-poned almost a month and a half; (Motio.., pp. 4, 5) 4.
allow parties to have access to consultation with the Staff or others to understand the Staff's documents prepared thus far, with seminars for briefing purposes; (Supplement, p. 4) 5.
require the Staff to evaluate the potential impact on intervenors from the lack of access of parties to resuurces adequate to ensure that their interests can be properly presented before the Commission; (Supple-ment, p. 6) 6.
permit parties to move for further modification of the Order for a showing of cause where such modification would be essential to preserve the public's interest in the fairness of the hearings; (Supplement,
- p. 7) and 7.
permit parties to have reasonable extensions of time limits for filing documents when inability to comply with tric time limits results from a lack of adequate resources (Second Supplement, p. 2).
The Staff's Answer in opposition to each of the requests is set forth below.
i 1o3 122
. Request No.1.
The Staff is unsure exactly what CEA is seeking in its first request.
If CEA is requesting th' Board to issue an Order requiring each party to serve documents that it files on every other party, then the Motion is not necessary. Section 2.730 of the Connission's regulations already requiro a party to serve all motions on all other parties to the proceeding.
The regulations do not, however, specifically require petitioners to serve their pleadings on other petitioners.
The Staff has in the past sent copies of petitions to intervene filed in this case to petitioners who have requested them, and is willing to do so for CEA. However, the Staff does not believe that it is necessary or appropriate to send copies of the petitions to petitioners who have not requested them, in light of the costs involved in reproducing and mailing the large number of documents and the availability of local public document rooms near the plant site where such documents may be stt.ied and copied.
Ryues t No. 2.
CEA moves the Board to provide for a special conference an ang the intervenors opposed to the reopening of TMI-1 to pemit discus-sion, identification of, and consolidation of contentions. However, the Order already provides for a special prehearing conference starting on November 8.
As indicated in the Order, at page 26, the " purpose of the special prehearing conference is to pemit identification of the key issues in the proceeding and to take steps necessary for the further identification of issues..."
ion-i To the extent that CEA is requesting a conference prior to the one provided for in the Order, CEA is of course free to meet with any other petitioners in the proceeding to discuss issues.
In addition, as indicated in the Order (p. 25), the Staff and, to a lesser extent, the Licensee, are directed to negotiate with the other petitioners concerning the suitability and form of contentions and issues to be litigated prior to the November 8 prehearing conference. The Staff expect; to meet soon with petitioners to discuss draft contentions.
CEA further suggests in its proposed schedule that the prehearing conference should precede the submittal of draft contentions by the intervenors.
However, the Staff perceives no benefit from reversing the nomal order of events as CEA suggests.
Indeed, there would be little that the Board could accomplish at a prehearing conference in the absence of even draft conten-tions submitted by the parties.
10 CFR 9 2.752(a) specifically contemplates that a prehearing conference in a proceeding will accomplish such things as simplification, clarification, and specification of issues, and obtaining stipulations and admissions of fact.
Such matters could not even be discussed without some prior indication by petitioners as to the is;ues that they want litigated in the proceeding. Moreover, the benefit inherent in the Board's schedule, that of having the petitioners and the Staff negotiate and rework contentions prior to L.olding the prehearing conference, would be lost under CEA's proposal.
In this context, it is the Staff's opinion that much more can be accanplished in the infomal setting of negotiation among the parties 1nr>3 jg4 than can be gained in the fonnal setting of a prehearing conference. Conse-quently, the Staff submits that the current schedule should be followed, and that petitioners should have the opportunity to negotiate with the Staff on draft contentions prior to thr: first prehearing conference.
Request Nos. 3., 4. and 6.
CEA also requests the Board to modify the schedule set forth in the Order so as to postpone the date for filing draft contentions and to fonnally modify the Order to incorporate a provision for further modifications to the Order or to the schedule attached to the Order for cause.
Since the requests all involve a possible change in the schedule for the proceeding, the Staff considers them together here.
The Commission emphasized the importance of conducting the proceeding expeat-tiously. Order and Notice of Hearing, August 9,1979, p.10 (44 Fed. Reg. 47824, August 13, 1979). To accomplish this, the Commission instructed the Board to consolidate parties to the extent practicable, to shorten time limits where feasible, and to use its authority to prevent any undue del j in the hearing. 3 It was in response to this Comission Order and proposed schedule that the Board adopted the schedule incorporated into its September 21, 1979 Order.
The first excuse offered by CEA for delaying the schedule is that the offi-cial report of the Presidential Comission to study the TMI-2 accident is expected to be released around October 25, or three days af ter the deadline i
for submitting final contentions and the bases for them. Motien, pp.1-2,
' " 3 125 4-6.
CEA alleges that lack of access to the infonnation contained in the Presidential Comission's report may prevent them fran including related contentions in this proceeding. However, CEA fails to recognw that the Commission's Rules of Practice specifically provide for modification of the contentions to be corsidered in a proceeding for good cause.
10 CFR
% 2.752(c). Accordingly, CEA will be able to amend its contentions or add new ones if the report contains significant new information such as would constitute good cause pursuant to 9 2.752(c).
In the interim, much progress can be made if draft contentions are submitted on October 5 pursuant to the Board's schedule, for negotiations can commence and refinements of the contentions and/or stipulations can be accanplished in the next month. Then if significant new infonnation is subsequently disclosed in the report to the President, CEA's rights will not have been prejudiced since it would then be free to modify its list of contentions. The timing of the release of the Presidential Commission's report, thus, does not constitute good cause for altering the schedule set forth in the Board's Order.
The second argument raised by CEA for altering the schedule !s that the NRC Staff or other " suitably quaified persons" should be required to consult with CEA and other parties to interpret various documents, taat seminars should be established to accomplish this purpose, and that such assistance should be made available prior to the final date for filing draft conten-tions, which under CEA's proposed schedule, would be November 19, 1979.
Supplement, p. 4.
Without reaching the question of whether it would be i
proper for de Licensing Board to order the Staff to canply with tne CEA
' "3 126 request, we see no need for the Board to mandate such procedures at this time.
The Commission's Order assures that participants in the proceeding will have informal access to NRC Staff consideration of the issues involved in this hearing in the manner in which access is pernitted in reactor licensing proceedings.N The Staff has in the past and will continue to hor.or all reasonable requests from petitioners for information on the Staff's position.
Moreover, we have contacted all petitioners and hopefully made it clear that we will meet with them at a time and place cor.venient for them for the p;rpose of finalizing their contentions. While perhaps this approach does not meet the foremat suggested by CEA, it does accomplish the same purpose and does not require further action by this board.
A third related concern raised by CEA is that it wants the Order to include provisions that pennit further modifications of the Order upon a showing of good cause.
Supplement, p. 7.
This request also is not necessary in light of the specific inclusion in the Comission's Rules of Practice referred to abov e. Section 2.752(c) of 10 CFR, as noted, pennits modification for good cause of an order issued by a licensing board which limits issues or define.s the matters in controversy, or which recites action taken with respect to the setting of a hearing schedule. Accordingly, this part of CEA's request is unnecessary, and should be denied.
i 1/
See Commission s Order and Notice of Hearing, suora, at 11.
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Request Nos. 5. and 7.
CEA further makes two requests that involve the issue of the ability of intervenors to adequately represent themselves in the absence of public funding. CEA's first related request is for the Board to crder the Staff to evaluate the potential impact of the lack of access of parties to adequate resources.
Supplement, p. 6.
The Staff submits that it would be improper for the Board to probe into this issue in light of the Commission's position on intervenor funding.
The Comission has ruled that it will not give financial assistance to intervenors in licensing proceedings.
Nuclear Regulatory Commission (Financial Assistance to Participants in Commission Proceedings), CLI-76-23, 4 NRC 484 (1976). As the Commission indicated in that decision, the possi-bility of substantive contributionr. to the correct resolution of safety and environmental issues is not substantially greater in the case of funded versus unfunded intervenors.
Id. at 504. These findings of the Comission are in direct conflict with the allegations of CEA that the fairness, thorough-ness and impartiality with which the proceeding can address safety and health issues is unrelated somehow to the lack of resources of CEA.2_/
Accordingly, the Staff urges the Board to deny CEA's request for a study of the impacts of its lack of resources on the ability of the proceeding to address health and safety issues.
2/
To the extent that CEA is claiming to represent the concerns of other intervenors and potential intervenors in this proceeding, the Staff submits that it is improper for CEA to represent the rights of anyone other than its members.
See, Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613 (1977),
citing Warth v. Seldin, 422 U.S. 490, 499 (1975).
1 n o 3 j '} g
-g-The second portion of CEA's request, that it should somehow be canpensated if the Staff should detennine that CEA's lack of resources precludes the ability of the record to reflect a full consideration of the healtn and safety issues in the proceeding, is related to its request in the Second Su pplement.
In the Second Supplement, CEA moves for the inclusion in the Order of provisions for extensions of time limits for filing documents when it is unable to comply because of inadequate resources. These requests also are inappropriate and should be denied.
CEA's proposal to grant parties some kind of assistance to compensate for limited resources in the fonn of unilateral right to delay submitting pleadings and testimony cy reason of those alleged limited resources, would preclude the conduct of an orderly hearing and would run counter to the express instructions of the Commission as discussed above.
Further, such freedom to delay i.he process is contrary to the Comission's regulations, which specifically urge a bcard to use its power to assure that the hearing is conducted as expeditiously as possible, consistent with the development of an adequate decisional record.10 CFR Part 2, App. A, V.
The claim of inadequate resources is certainly not a novel canplaint.
Intervenors have been raising this concern in numerous NRC hearings, requesting financial assistance to pay for legal counsel or technical advisors or witnesses, and claiming an inability to effectively present a case in the absence of such assistance.
However, such requests have been i
consistently denied.
See, Consumers Power Co.
(Midland Plant, Units 1 and
' " 3 129 2), ALAB-382, 5 NRC 603 (1977) and Detroit Edison Co. (Greenwood Enenjy Center, Units 1 and 2), ALAB-376, 5 NRC 426 (1977).
Intervenors have partici-pated in AEC and NRC hearings in the past without financial assistance, and without having an automatic time limit extension granted them for filing documents simply because of alleged limited resources.
CEA has indicated no extraordinary circumstantes regarding it or any other intervenors in this proceeding that would warrant the grant of such unusual and potentially disruptive relief.
CEA is always free to request an extension of time for meeting any specific deadline that the Board sets, and can argue the merits of granting that particular extension. The Board can detennine whether good cause has been shown for granting such an extension of time on a case-by-case basis.
However, the Staff submits that a valid reason for granting general relief to intervenors from meeting deadlines has not been offered by CEA, and the consequence of granting such relief would produce a potentially serious disruption of an orderly proceeding.
CONCLUSION The Staff urges the Board to deny the requests sought by CEA in in its Motion, Supplement and Second Supplement in that they are either unnecessary or without merit.
Respectfully submitted, d cs & 5 W
i Daniel T. Swanson Ccunsel for NRC Staff
' ~' 3 13 0
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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METROPOLITAN EDISON COMPANY,
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Docket No. 50-289
_ET _AL.
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(Three Mile Island, Unit 1)
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NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 5 2,713(a), 10 CFR Part 2, the following information is provided:
Name Daniel T. Swanson Address U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington DC 20555 Telephone Number Area Code 301 - 492-7837 Admission Supreme Court of the United States Supreme Court of the State of Tennessee Name of Party NRC Staff U.S. Nuclear Regulatory Commission Washington, DC 20555
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Daniel I.
Swanson Counsel for NRC Staff Dated at Bethesda, Maryland this 9th day of October, 1979
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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METROPOLITAN EDISON COMPANY,
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(Three Mile Island, Unit 1)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MOTIONS FILED BY CEA TO AMEND MEMORANDUM AND ORDER" and " NOTICE OF APPEARANCE OF DANIEL T. SWANSON" dated October 9,1979, in the above-captioned proceeding, have been served on the following, by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail systa this 10th day of October,1979.
- Ivan W. Smith, Esq.
Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Dr. Walter H. Jordan Mr. Steven C. Sholly 881 W. Outer Drive 304 South Matket Street Oak Ridge, Tennessee 37830 Mechanicsburg, Pennsylvania 17055 Dr. Linda W. Little 5000 Hermitage Drive Mr. Thomas Gerusky Raleigh, North Carolina 27612 Bureau of Radiation Protection Department of Environmental Resources George F. Trowbridge, Esq.
F.0. Box 2063 Shaw, Pittman, Potts & Trowbridge Harrisburg, Pennsylvania 17120 1800 M Street, N.W.
Washington, D. C.
20006 Mr. Marvin I. Lewis 6504 Bradford Terrace Karin W. Carter, Esq.
Philadelphia, Pennsylvania 19149 505 Executive House P. O. Box 2357 Metropolitan Edison Company Harrisburg, Pennsylvania 17120 Attn:
J. G. Herbein, Vice President ;'
P.O. Box 542 Reading, Pennsylvania 19603 Honorable Mark Cohen 512 E-3 Fain Cacital Building Ms. Jane Lee Harrisburg, Pennsylvania 17120 R.D. 3; Box 3521 Etters, Pennsylvania 17319 n"3 ]3}
2
.. Walter W. Cohen, Consumer Advocate Holly S. Keck Department of Justice Anti-Nuclear Group Representing Strawberry Square,14th Floor York Harrisburg, Pennsylvania 17127 245 W. Philadelphia Street York, Pennsylvania 17404 Robert L. Knupp, Esq.
Assistant Solicitor John Levin, Esq.
Knupp and Andrews Pennsylvania Public Utilities Comm.
P.O. Box P Box 3265 407 N. Front Street Harrisburg, Pennsylvania 17120 Harrisburg, Pennsylvania 17108 Jordan D. Cunningham, Esq.
John E. Minnich, Chairman Fox, Farr and Cunningham Dauphin Co. Board of Commissioners 2320 North 2nd Street Dauphin County Courthouse Harrisburg, Pennsylvania 17110 Front and Market Sts.
Harrisburg, Pennsylvania 17101 Ms. Kathy McCaughin
- Atomic Safety and Licensing Appeal Board Three Mile Island Alert, Inc.
23 South 21st Street U.S. Nuclear Regulatory Commission Harrisburg, Pennsylvania 17104 Washington, D. C.
20555 Ms. Ellyn R. Weiss
- Atomic Safety and Licensing Board Panel Sheldon, Harmon, Roisman & Weiss U.S. Nuclear Regulatory Commission 1725 I Street, N.W.
Washington, D. C.
20555 Suite 506 Docketing and Service Section U.S. Nuclear Regulatory Commission Ms. Karen Sheldon Washington, D. C.
20555 Sheldon, Harmon, Roisman & Weiss 1725 I Street, N.W.
Robert Q. Pollard Suite 506 Chesapeak Energy Alliance Washington, D. C.
20006
'609 Montpelier Street Baltimore, Maryland 21218 Ms. Marjorie M. Aamodt R.D. #5 Chauncey Kepford Coatesville, Pennsylvania 19320 Judith H. Johnsrud Environmental Coalition on Nuclear Power Earl B. Hoffman 433 Orlando Avenue Dauphin County Commissioner State College, Pennsylvania 16801 Dauphin County Courthouse Front and Market Streets Ms. Frieda Berryhill, Cairman Harrisburg, Pennsylvania 17101 Coalition for Nuclear Power Plant Postponement 2610 Grendon Drive Wilmington, Delaware 19808 h
hd7 Daniel T. Swanson Counsel for NRC Staff
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