ML19263D907

Responds to NRC 790216 Ltr Requesting Explanation Why Documents Were Not Served Upon Parties.Discusses Understanding of NRC Requirements Re Svc of Documents.Ops Svc List Encl

ML19263D907
Person / Time
Site:	Atlantic Nuclear Power Plant
Issue date:	03/09/1979
From:	Cowan B ECKERT, SEAMANS, CHERIN & MELLOTT
To:	Wolfe S Atomic Safety and Licensing Board Panel
References
NUDOCS 7904170048
Download: ML19263D907 (5)

Text

-

C', K E RT, S EA M A N S , C H E R I ATT C A N E"Y $ AT t.AW (n -d En ROOM FORTY SECCNQ FLCCM 6CC Q AANT STmCET Ann L. S EAmanS towAmoc.oCommon PITTS OU R C H . PA.15 219 soMM w.utimotm..m. scMN C.AmT2

8 0 " E* ** 80 " * "

mL CMtmine O ALg ManSMET aCSCm? w. cofv (Al2) 566-6CCO O mo "'

S C"'*C E RT T. 'V amo""a a.

nt o u t . s wiLuaes as. rtvee m OTO m.mC64.07T MCwamo 0. SCMwamit moSCRTL.Sytm onEOOREma J. 3Amy 4CSimana TELCE* 6 66t72 somes m.a tumeCa *''** O " * *

• 8 ' " * '" #

COEmeCm 3. mCamIS TEWastCa*'As4 $66 6C99 "* * ""# '*w.*".

M M M . MC pC ass mCSCM S.weWAesS \ STEVEM an O m &T M J C M at m as ES M Em Sav&M 3. mCSENSCmCEm JCMm mayL LtW49. Jm .

mL P. sam 4 Em wrLU S A. SiEG ree gD. sm.

DAWlo E.TuMOATE SansamTMA reasects FLvmse s AsesCE C. SCwEms wAmo J. OmEEME MICHACL m.SCm AS Av DENNIS sQ$ taw Q'Sm9CN MALO C. WlN S OM e6ChamQ W. GLAOSTQME.E SCM C. w* CARTm g? COUNSEL TIMOTMY w, SiLSauGM JONATW AN m. mtmOEm?

O.atCMamo 00LD DENNf 3 s. LKm3 asamOAmETm. 07 LU Aas S. M ALu m mar C,STonEm W LyAM M. ECMENT wtLUAm m. soutmoeSgmo wituAss M. SCMCmWNO QEOSeQC se. M(QVCO Atom L CO*n88 MILTON W. LAMamCaLOS sCmDAN S. wCLTM Af6

4. MOSEM wCong mAmL 4. RINQlO wies L. mLETT sAnsts M.mCSEmTS STuam? A.wiLWApS OMAS 0.wfuGMT

• EMM CTM S. mETEJESCM LEON C. H4CMM AN 4.QCvtEQECmOE CAmCLr.OmACSNEM

. AATMum wsLS ON.s2 d. w. asC MTOQ astav. *lZ rags w. G ECmOE ngMT asay QAnsg6A.TocLE WILUAM WATSCN SMITM sCMM T. SCMMIOT as. A atTEm C.SA40ERMAN i 67 *. . af CMamO 8.,MA,L7Emm AL, Lvane E. w,wSTgvesM,."!

A- 3 Ma n. A. w,u.Am, ,,,,J.,. ,9 March 9, 1979 ,

/; l ,g&; .

of&

c Sheldon J. Wolfe, Esq., Chairman b $ $1N1 Atomic Safety and Licensing Board b

g6 *7g .g U. S. Nuclear Regulatory Commission $

Y,,, 4k*S "'

Washington, D. C. 20555 O

Dear Mr. Chairman:

o-Re: Offshore Power Systems - Docket No. STN 50-437 This letter is in response to your letter dated February 16, 1979, inquiring as to why two documents referred to by NRDC were not served upon the parties and whether simi-lar Applicant-Staff correspondence has not been served in the past upon the parties. Your letter was not received by me in Pittsburgh or by Offshore Power Systems in Jacksonville until Feb uary 26, 1979.

In our la ter dated January 26, 1979, we set forth Applicant's understanding af the Commission's requirements concerning service of documents upon the parties and the inter-play of service rules and discovery rules of the Commission.

Without repeating our prior letter, it is Applicant's position that there is no Commission regulation or practice requiring service on all parties of any and all correspondence between Applicant and the Staff. Applicant has always responded with-out ccmpulsion to all reasonable requests for discovery which were relevant to contentions authorized by the Board for hear-ing. The Public Document Room maintained by the NRC is the appropriate place for finding all correspondence with the Staff, whether by Applicant or Intervenor. While Applicant has a responsibility to keep the Atomic Safety and Licensing 7904170OVf

Sheldon J. Wolfe, Esq., Chairman March 9, 1979 Board and the parties advised concerning developments associated with the proceeding, it is a responsibility tied to information relevant and material to matters to be adjudicated by the Licensing Board.

In the case of the two documents here under discussion, at the time those documents were sent or re-ceived by Applicant, the documents were not material or relevant to any matter in controversy in this proceeding and had not been the subject of a request for discovery by any party. By way of further explanation as to why Applicant did not consider either of the two letters material or relevant (although subsequently one of those letters was attached to a pleading by Applicant), we offer the following additional ecmments. The two docu-ments involved were: (a) a letter dated November 3, 1978, from Douglas M. Costle, EPA Administrator, to A. P.

Zeche11a, President of offshore Power Systems, concerning the EPA position on the siting of floating nuclear plants; and (b) a letter dated October 31, 1978, from P. Blair Haga to Harold R. Denton, Director, Office of Nuclear Re-actor Regulation, describing a proposed schedule for responding to the Staff with respect to update review mat-ters.

The November 3, 1978 letter was a communication to the Applicant directly from EPA, in which EPA, at the request of Applicant, was clarifying its position with respect to siting of floating nuclear power plants in a riverine or estuarine environment. Applicant did not serve this letter on the parties for several reasons: First, Applicant did not believe the matter discussed in the letter to be relevant to any contention authorized by the Licensing Board for hearing. As the Board is aware, NRDC has attempted to interject into this proceeding a requirement that discrete riverine and estuarine sites be identified and analyzed for environmental purposes prior to issuance of any manufacturing license to Applicant. Applicant has consistently believed that such a requirement is contrary to Appendix M and the Commission's licensing criteria for the manufacturing license for floating nuclear plants. While the November 3, 1978 let-ter involved this general subject, Applicant did not then consider and does not now consider it relevant to any conten-tion authorized by the Licensing Board. Only when NREC, in an unsuccessful effort to amend its centention by seeking

Sheldon J. Wolfe, Esq., Chairman March 9, 1979 directed certification frem the Appeal Board of this Board's ruling prohibiting such amendment, misstated the position of EPA with respect to riverine and estuarine sitings in its Appeal Board pleading did Applicant utilize the corre-spondence from EPA to set the factual record straight.

Second, for the reasons discussed in Applicant's letter to the Board of January 26, 1979, Applicant under stands that while it has a duty to keep the Licensing Board and other parties advised regarding information which is relevant and material to matters being adj~udicated. there is no general Commission regulation requiring an applicant to serve on all parties copies of any and all correspondence between the Applicant and other agencies of the federal gov-ernment.

Third, Applicant only sent the November 3, 1978 EPA letter to the NRC Regulatory Staff on November 29, 1978 after Applicant had become aware that EPA had not directly communicated to the NRC Staff the clarification of the EPA views as set forth in that letter. In this regard, it should be noted that the NRC Staff also did not serve the parties with the EPA communication until NRDC misstated the position of EPA during the NRDC attempt to interject imper-missible consideration of specific riverine and estuarine sitings into this manufacturing license proceeding.

The second letter referred to by NRDC was the October 31, 1978 letter from Mr. Haga to Mr. Denton describ-ing a proposed schedule for responding to the Staff with respect to update review matters. Applicant did not serve this letter on the parties for the folicwing reason. During the course of any licensing review, there is a constant stream of correspondence between an applicant and the Staff relating to matters of application administration, schedul-ing and transmittals of responses to questions. Sometimes this communication also includes efforts to work out the scope of the response to a Staff request. Questions con-cerning when certain technical responses to Staff questions will be in the hands of the Staff and the scope of such responses are not normally relevant to matters in controversy in the proceeding. To the extent that answers to Staff ques-tions (as opposed to schedule matters) become incorporated into amendments to the Plant Design Report or the Environ-mental Report, such ccmments are, of course, made a matter of

Sheldon J. Wolfe, Esq., Chairman March 9, 1979 public record in the proceeding. However, Applicant does not believe there is any requirement either under Commis-sion regulation or practice to provide letters proposing schedules and other similar information to all of the parties. Accordingly, such letters are not provided in the normal course. In this regard, it should be noted that copies of any letters sent to the Staff are placed by the Staff in the Public Document Room.

The Chairman also inquired as to whether similar Applicant-Staff correspondence has not been served in the past upon the parties. As is evident from the above com-ments, there is other correspondence relating to matters of administration, scheduling and scope of content of in-quiries which has not been served on the parties. It is the Staff practice to place such correspondence in the Public Document Room for general availability. In addi-tion, for completeness, we should advise the Board that there is some Applicant-Staff correspondence not of a simi-lar nature which also is not served routinely on the par-ties. Such correspondence is generally a preliminary Applicant position responding to Staff inquiry which ulti-mately results in a final formal position incorporated into the Plant Design Report by appropriate amendment.

The NRDC position contained in its January 30, 1979 letter accuses Applicant of having a " perverted con-cept or relevance". NRDC's position, however, which would requ.tre all communications between the Applicant and the Staff to be served on all parties would eliminate the con-cept of relevance to matters in controversy altogether.

Finally, Applicant would note that a requirement to serve every document similar to the documents referred to by NRDC would circumvent the Commission's discovery rules and practice insofar as discovery against an Applicant is concerned. In addition, as perusal of the Public Docu-ment Room attests, the volume of such information is sub-stantial and a requirement that every document sent by the Applicant to the Staff be served on all the parties would be extremely burdensome without any concomitant benefit.

Very truly yours,

/s/ Barton Z. Cowan Barton Z. Cowan Counsel for offshore Power Systems BZC:BB cc: Dr. David R. Schink Mr. Lester Kornblith, Jr.

All = -'d =* **a hed OPS Service List

~ ~

g ~,

ATTACHMENT 1 M cQI$

OPS SERVICE T , $]3 71* _. ,

N *g3 I 6

ql}45I%

Sheldon J. Wolfe, Esq., Chairman Doc a ice Section Atomic Safety and Licensing Board Office '3 .T ecretary U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Dr. David R. Schink, Member Martin G. Malsch, Esq.

Atomic Safety and Licensing Board Office of the Executive Legal Department of Oceanography Director Texas A & M University U. S. Nuclear Regulatory Commission College Station, Texas 77840 Washington, D. C. 20555 Mr. Lester Kornblith, Jr., Member Stephen M. Schinki, Esq.

Atomic Safety & Licensing Board Panel Marc R. Staenberg, Esq.

U. S. Nuclear Regulatory Commission Office of the Executive Legal Washington, D. C. 20555 Director U. S. Nuclear Regulatory Commission Dr. David L. Hetrick, Alternate Member Washington, D. C. 20555 Atomic Safety and Licensing Board Professor of Nuclear Engineering Barton Z. Cowan, Esq.

The University of Arizona John R. Kenrick, Esq.

Tucson,' Arizona 85721 Eckert, Selmans , Cherin & Mellott 600 Grant Street Alan S. Rosenthal, Esq., Chairman Forty-Second Floor Atomic Safety and Licensing Appeal Pittsburgh, Pennsylvania 15219 Board Panel U. S. Nuclear Regulatory Commission Thomas M. Daugherty, Esq.

Washington, D. C. 20555 offshore Power Systems 8000 Arlington Expressway Alternate Chairman P. O. Box 8000 Atomic Safety and Licensing Appeal Jacksonville, Florida 32211 Board Panel U. S. Nuclear Regulatory Commission Carl Valore, Jr., Esq.

Washington, D. C. 20555 valore, McAllister, DeBrier, Aron

& Westmoreland Chief Hearing Counsel Mainland Professional Plaza Office of the Executive Legal Director 535 Tilton Road U. S. Nuclear Regulatory Commission P. O. Box 152 Washington, D. C. 20555 Northfield, New Jersey 08225 Director (2)

Division of Nuclear Reactor Regulation U. S. Nuclear Regulatory Commission Washington, D. C. 20555 9 Page 1 of 2

Mr. Harold P. Abrams, President Richard M. Bluchan, Esq. Atlantic County Citizens Council State of New Jersey on Environment Department of Law and Public Safety 9100 Amherst Avenue 36 West State Street Margate, New Jersey 08402 Trenton, New Jersey 08625 Dr. Willard W. Rosenberg, Chairman Anthony Z. Roisman, Esq. Energy Committee Natural Resources Defense Council, Inc. Atlantic County Citizens Council 917 Fifteenth Street, N.W. on Environment Washington, D. C. 20005 8 North Rumson Avenue Margate, New Jersey 08402 Keith A. Onsdorff, Esq.

Assistant Deputy Public Advocate Mr. John H. Williamson State of New Jersey Energy Committee Post Office Box 141 Atlantic County Citizens Council Trenton, New Jersey 08601 on Environment 211 Forest Drive Mr. George B. Ward Linwood, New Jersey 08221 Nuclear Power Plant Committee City Hall Brigantine, New Jersey 08203 Pace 2 of 2 4