ML19261C057

Util Opposes Petitioners Darby,Garrett & Hanford Conversion Project Addl Contention & Legal Argument.Intervention Petition Should Be Disposed of on Basis of Existing Record as Previously Stipulated.Certificate of Svc Encl

ML19261C057
Person / Time
Site:	Columbia
Issue date:	02/15/1979
From:	Reynolds N DEBEVOISE & LIBERMAN
To:
References
NUDOCS 7903140500
Download: ML19261C057 (7)

Text

'

.- NRC PUBLIC DOCUMENT ROOM UNITED STATES OF AMERICA on,n3

. NUCLEAR REGULATORY COMMISSION me j 9:  ::

FEB1 S

c ISIS' 12>

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD c., ***1',7 5.

g

+

/

+'

w stO In the Matter of )

)

WASHINGTON PUBLIC POWER ) Docket No. 50-397-OL SUPPLY SYSTEM )

)

(WPPSS Nuclear Project No. 2) )

APPLICANT'S RESPONSE TO PETITIONERS' ADDIT'ONAL CONTENTION AND LEGAL ARGUMENT In a document dated February 1, 1979, Petitioners Darby, Garrett, and Hanford Conversion Project attempted to file an additional contention ad legal argument supporting several previous contentions. The Washington Public Power Supply System (" Applicant") hereby objects to the submission of that document at this time since petitioners stipulated at the special prehearing conference that the pending petition to intervene should be disposed of on the basis of the record at the close of that conference.

I. Petition Should Be Disposed Of On Basis Of Existing Record At the close of the special prehearing conference, peti-tioners requested permission to file an additional contention (Tr. 115) and legal argument supporting certain previous con-tentions (Tr. 118). However, with respect to the additional contention, petitioners flatly stated that the Board should geoa14CSCO

dispose of the petition to intervene on the basis of the record at the close of the prehearing conference. Petitioners stated that:

"[W]e don't expect the Board to wait for this additional contention in reaching its ruling. We are asking for permission, assuming a favorable response to our Petition, therefore we are not asking you to hold in abeyance your decision on our Petition while we prepare this con-tention". (Tr. 117.)

On the express understanding that the Board would not receive or consider the additional contention prior to ruling on the petition, the Applicant stated that it had no objection to untimely contentions (assuming, of course, that there was compliance with NRC regulations with respect thereto).

(Tr. 117-118.)

With respect to that portion of petitioners document presenting legal argument supporting previous contentions, Applicant submits that the Bcard also should not consider this argument in rendering its decision on the pending petition. The record is clear that petitioners and CTe Applicant agreed that the Board should rule on the basis of the record at the close of the prehearing conference. When petitioners noted that they intended to file this legal argument, Appli-cant objected on the basis that it should have been filed 15 days prior to the conference pursuant to 10 CFR S2.714 (Tr. 118-119). In response, petitioners stated that they

did not desire the Board to consider this legal argument in ruling on the petition to intervene. Petitioners stated that:

"It is definitely not the intention of the Petitioners to further delay the proceedings, and so our other contentions, which don't depend upon this brief, and since only one valid contention is neces-sary in order for you to pass upon our petition, we would ask that you not delay your deliberations in waiting for this document. We would like, then, to be allowed to file this document if and when the Board grants us status to inter-vene, so that we might clarify those additional contentions." (Tr. 119-120.)

In addition, petitioners stated that:

"[W] hat we would ask is that you delay ruling on the adn.issibility of Contentions 6 and 7 which do depend in part upon this concept. We would ask if you could simply rule on those at a later time and not delay this present ruling." (Tr. 120.)

In response to these statements by petitioners, the Board st' d that it would " proceed with those that are ripe for ruling. . ." (Tr. 120).

On the basis of the foregoing, it is beyond valid dispute that the parties and the Board were in agreement at the special prehearing conference that the Board should rule on the petition to intervene on the basis of the record as it existed at the close of that conference.

Petitioners' statements clearly reflected that this was their understanding. Accordingly, we submit that the additional

contention and legal argument contained in petitioners' February 1 document are not properly the subject of considera-tion by the Board in ruling on the petition.

In these circumstances and consistent with the under-standing reached at the special prehearing conference, the Applicant will defer filing a substantive response to peti-tioners' document until the Board has ruled on the petition.

In the event the Board grants intervention on the basis of one of the first five contentions (petitioners having requested that Board consideration of Contentions 6 and 7 be deferred (Tr. 120)), it is Applicant's view that only then will peti-tioners' February 1 document be properly before the Board.

We expressly reserve the opportunity to respond to that docu-ment if and when the Board grants the petition.

II. Appeal Board Guidance on Reliability of Anonymous Informants The Applicant takes this opportunity to call to the Board's attention the recent guidance of the Appeal Board in Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 2), ALAB-525, Slip Op. (February 1,1979) relating to the significance to be attached to affidavits containing alleged statements of anonymous informants. In that case, the Appeal Board noted as follows:

"[N]o significance at all has been attached to the content of those affidavits. It is to bc hoped that we are long past that sorry day in this Nation's history when reliance vas placed upon the statements assertedly made by anonymous informants unwilling to come forward and be confronted on the accuracy of those statements. [ Slip Op. at pp. 6-7.]

We believe that this guidance from the Appeal Board is material to this Board's consideration of petitioners' Contention 4 relating to seismicity, and specifically of the information contained in the affidavit of Mr. Barber which is cited as the sole basis for that contention.

Respectfully submitted, DEBEVOI E LIBERMAN

/

Nichol<rp S Reynolds CounseQfo the Applicant February 15, 1979 e

UNITED STATES OF AMERICA

- NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

WASHINGTON PUBLIC POWER )

SUPPLY SYSTEM ) Docket No. 50-397-OL

)

(WPPSS Nuclear Project No. 2) )

CERTIFICATE OF SERVICE 1 hereby certify that copies of " Applicant's Response To Petitioners' Additional Contention And Legal Argument,"

dated February 15, 1979, in the captioned matter have been served upon the following by deposit in the United States mail this 15th day of February, 1979:

Elizabeth S. Bowers, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Board Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Chairman, Atomic Safet, and Dr. Richard F. Cole Licensing Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 William D. Paton, Esq.

Office of the Executive Mr. Ernest E. Hill Legal Director Lawrence Livermore Laboratory U.S. Nuclear Dagulatory University of California Commission Washington, D.C. 20535 P.O. Box 808, L-123 Livermore, California 94550

Mr. Nicholas D. Lewis Ms. Susan M. Garrett Chairman 632 S.E. 18th Street Energy Facility Site Portland, Oregon 97214 Evaluation Council 820 East Fifth Street Doreen L. Nepom, Esq.

Olympia, Washington 98501 Nepom & Rose Suite 101 - Kellogg Building Thomas F. Carr, Esq. 1935 S.E. Washington Assistant Attorney General Milwaukie, Oregon 97222 Temple of Justice -

Olympia, Washington 98504 Mr. Chase R. Stephens Docketing & Service Section Richard Q. Quigley, Esq. U.S. Nuclear Regulatory Washington Public Power Commission Supply System Washington, D.C. 20555 Post Office Box 968 Richland, Washington 99352 Mr. Creg Darby 2425 S.E. 24th Street Portland, Oregon 97214 i

Nichola S. F eynolcs cc: Gerald C. Sorensen O. Keener Earle