ML19290A191
| ML19290A191 | |
| Person / Time | |
|---|---|
| Site: | Peach Bottom, Hope Creek, Sterling, Crane  |
| Issue date: | 10/11/1979 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-566, NUDOCS 7910180541 | |
| Download: ML19290A191 (12) | |
Text
M UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S. Rosenthal, Chairman Dr. John H. buck D,g, Dr. W.
Reed Johnson -
g 1 1979
)
In the Matters of
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PHILADELPHIA ELECTRIC COMPANY, et al. )
Docket Nos. 50-277
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50-278 (Peach Bottom Atomic Power Station,
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Units 2 and 3)
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METROPOLITAN EDISON COMPANY, e t-al.
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Dock No. 50 '3
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(Three Mile Island Nuclear $tation,
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Unit No. 2)
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PUBLIC SERVICE ELECTRIC AND GAS CO.
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Docket Nos. 50-354
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50-355 (Hope Creek Generating Station,
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Units t and 2)
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ROCHESTER GAS AND ELECTRIC
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Docket No. STN 50-485 CORDORATION, _e t _al.
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(Sterling Power Project, Nuclear
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Unit 1)
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g gj t[snTE 5
ocn11973#k N
g MEMORANDUM October 11, 1979 ggd (ALAB-566)
In ALAB-562, 10 NRC (September 10, 1979), all five members of the Appeal Panel assigned to.the appeal boards for these now-consolidated licensing proceedings concluded th.: a 2226 010 EU 7910180 p
2-further evidentiary hearing was required on certain aspects of the generic radon releases matter pending in each pro-cending.
The responsibility for presiding at the hearing was delegated to us, with the. notation that, once it had been completed, our colleagues would join in the considera-tion of r.he issues to be decided.
As the first step, we conducted a scheduling conference with the parties by telephone on October 2, 1979. 1 /
The following day, we entered a brief order to the effect that (1) the prepared testimony of the witnesses for each party must be filed and served by Januar; 18, 1980; and (2) the hearing will commence on February 25, 1980 in a location to be later determined.
This memorandum is in explanation of those directives.
Although scheduling orders (and the basis for them) generally are of interest solely tc the persons concerned with the particular proceeding (s) to which they directly relate, in this instance we found it necessary to pass upon questions of possibly broader significance.
For that reason, the memoran-dum will be published.
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ALAB-562 had indicated that the conference would be held 1
on an earlier date; it was postponed, however, at the request of the representative of some of the intervenors.
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As reflected by ALAB-562, the active participants in the four proceedings are the applicants (represented collectively by three 'aw firms), the Sterling intervenors (represented by Ms. Sue Reinert), the Peach Bottom-Three Mile Island intervenors (represented by Dr. Chauncey Kepford) and the NRC staff. 2/
We were told in the course of the conference that each of those parties, with the possible exception of the Peach Bottom-Three Mile Island intervenors, will present witnesses at the hearing.
Counsel tur the applicants and the staff indicated that the prepared written testimony of their witnesses could be filed and served by early November.
The Sterling inter-venors' representative informed rs, however, that her
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Mr. David Caccia, an intervenor appearing pro se in the Hope Creek proceeding, did not file a response to the motions for summary disposition filed by the ap-plicants and the staff (which motions were granted in part and denied in part in ALAB-562).
In view of that consideration, we inferred that he has no present in-terest in the matters to be addressed at the upcoming hearing.
Accordingly, he was not included in the telephone conference.
In the event that Mr. Caccia should decide upon fur-ther reflection that he desires to participate in the hearing, he should so notify us (and the other parties) in writing.
The notification is to indicate the nature and extent of the intended participation and must be furnished at least 45 days in advance of February 25, 1980.
Additionally, the prepared testimony of any wit-ness which Mr. Caccia might wish to present at the hearing must be filed and served by January 18, 1980 (the deadline applicable to the other parties).
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. single witness -- a university profes.sor -- would be free to p_epare his testimony only during academic recesses; conse-quently, she stated, it could not be made available prior to January.
For his part, the representative of the Peach Bottom-Three Mile Island intervenors asserted that, for a variety of reasons, it would be difficult for him to submit prepared testimony (should he elect to do so) any earlier than February.
But he did indicate at one point that, at considerable personal inconvenience, he might be able to complete the task by Janua;y.
Following these disclosures, applicants' counsel sug-gested the establishment of a schedule whereby their testi-many and that of.the staff would be filed first; a month or so later the intervenors' testimony would be due; and, there-af ter, rebuttal testimony might be filed.
This suggestion was endorsed by staff counsel.
At the same time, however, it was strenuously opposed by the representatives of the intervenors as inherently unfair, on the ground that it woull provide the applicants and the staff with an addi-tional opportunity to submit testimony.
We endeavored to convince the intervenors ' representa-tives that, far from being prejudicial, the applicants' pro-posal would in practical effect inure to their benefit.
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What seemingly had been overlooked was that the applicants possess the ultimate burden of persuasion on the radon re-leases issue (i.e.,
it is incumbent upon them to establish that the environmental consequences of these releases are not such as.to tip the NEPA balance against the construction and c'eration of their proposed facilities).- /
Under fa-milia; adjudicatory principles, part.'.s saddled with that burden typically proceed first and then have the right to rebut the case presented by their adversaries.
Thus, the question posed by the applicants' proposal was not whether the applicants would be entitled to submit further testimony in response to the intervenors' affirmative evidence; rather it was when the intervenors would obtain access to any such -
testimony.
In this connection, it appeared manifest to us that the intervenors would be materially assisted in their trial preparation if the substance of the applicants and staff rejoinder to their evidence became known to them well before the hearing commenced (instead of, for the first time, after the intervenors' witnesses had concluded their oral testimony).
Beyond that, the proposed schedule would enable
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Inasmuch as it supports the applicants' position that the environmental const,.e ces are small, the staff shares that burden.
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. the intervenors' witnesses to develop their written testi-mony with at least the direct evidence of the other parties already in hand -- another decided advantage.
Notwithstanding tnese considerations, the intervenors' representatives persisted in their objections.
We accord-ingly decided to reject the proposal and to establish, as the intervenors desired, a uniform date for the submission of all prepared testimony -- leaving the applicants and staff free to present at the hearing rebuttal evidence which had not been previously submitted in written form.
This decision was reluctantly made, for it is just as evident to us today as it was at the time of the conference that the intervenors' choice was a dubious one even when viewed solely from the standpoint of the furtherance of their own interests.
To repeat, we think it virtually axiomatic that any party to an adjudicatory proceeding (as well as the ex-peditious progress of the, heariitg itself) will be advantaged if as much as possible of its adversaries' evidence is dis-closed in advance.
Because, however, the Rules of Practice do not make specific provision for prepared rebuttal evi-dence, A! we were disinclined
'_o force the applicants'
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10 CFR 2.743 (b) provides that the written testimony of witnesses is to be served at least 15 days in advance of the hearing session at which that testimony is to (FOOTNOTE CONTINUED ON NEXT PAGE) b!d dSSE 05
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proposal upon the intervenors.
Of couran, the.i.ntervenors will not be in a very good position to complain that they have been unduly surprised by any rebuttal evi'lence whic.
2.ay be supplied; a clain along that line would have to overcome the.short answer that the surprise was entirely of their own making.
In fixing the date ~ce the submission of the prepared testimony of all parties, we took into account the situa-tion which we were told confronts the Sterling intervenors' intended witness.
With respect to the Peach Bottom-Three Mile Island intervenors, we perceive no good cause why the submission of their testimony need be deferred beyond mid-January.
We infer from what was said during the conference that, if those intervenors present any testimony at all, it will be furnished by Dr. Kepford himself. b/
We can take official notice of the fact that Dr. Kepford has had the radon releases issue under study for an extended period of time; presumably, t4erefore, he has already at his disposal
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(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) be presented.
As a general matter, there would be in-sufficient time for the preparation and submission of written rebuttal testimony prior to the commencement of the session.
10 CFR 2.743(a) rakes clear, however, that there is a right to present rebuttal evidence at the hearing.
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Dr. Kepford made no reference to any other potential witness.
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~. much of the basic information needed to undergird any con-clusions he might wish to put forth as a witness for the organizations he represents.
Further, it is our impres-sion that, upon request, the staff will supply him with any additional information it has acquired during its scrutiny of tne estter which might be useful to him.
- True, Dr. Kepford claims to be now involved in other licensing proceedings which also require his attention.
But any individual undertaking to play an active role in several proceedings which are moving forward simultaneously is apt to find it necessary from time to time to expend extra effort to meet the prescribed schedules in each case.
We are satisfied that, all things considered, the three and one half month period provided to Dr. Kepford for the preparation and submission of his testimony is wholly rea-sonable, if not generous.
2.
As previously noted, our October 3 order set a date for the commencement of the hearing but lef t the location to be determined at a subsequent time.
As a matter of policy (albeit not of statute er regula-tion), most evidentiary hearings in NRC licensing proceedings are conducted in the general vicinity of the site of the 2226 017 A r p, o' c q c facility involved.
The principal-factors underlying that policy are, however, absent here.
This hearing encompasses four distinct, geographically separated, facilities and no relationship exists between the highly technical questions to be heard and the particular features of any of those facilities or its site.
Indeed, generic matters of this stripe customarily would be considered in a rule-making proceeding, more likely than not convened without reference to the situs of one or another of the reactors which might be affected by the outcome of the proceeding.
By contrast, the usual adjudicatory proceeding involves one facility alone and calls for the resolution of at least some plant-specific issues which are likely to be of substantial interest to per-sons residing in the area.
In short, the governing consideration in determining the place of this hearing both can and should be the convenience of those wno will play a direct role in it -- i.e.,
he per-sens representing the parties, the witnesses and the.nembers of the Board.
And it is abundantly clear that, for the over-whelming majority of those individuals, the NRC Public Hearing Room in Bethesda, Maryland, would be the most suitable loca-tion by a wide margin.
The counsel and the several prospec-tive witnesses for the applicants and the staff are all in 2226 018
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the Washington, D. C. area -- as are two of the three members of this Board.
Moreover, were the hearing to be held in Bethesda, we would be able, prior and subsequent to each day's hearing session, to address other adjudicatory matters "aquiring our prompt attention.
Given the relatively small complement of Appeal Panel members and the likely state of our docket next February, this factor cannot be lightly dis-regarded.
What has nonetheless prompted our hesitancy to order now that the hearing be held in Bethesda is the assertion of the representatives for both sets of intervenors that the result would be the imposition of an undue financial burden epon them.
In their view, the hearing should be set for either Harrisburg, Pennsylvania (which is close to the Three Mile Island facility) or Oswego, New York (in the vicinity of the Sterling site).
As they see it, the expense associated with their attendance at 'he hearing (e. g., lodging and meals) would be considerably less in those cities than it would be in the Washington, D. C.
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The Sterling intervenors' representative resides in Oswego and, therefore, presumably could commute on a daily basis if the hearing were held there (or in a nearby city -- such as Syracuse -- which might offer more suitable hearing accommodations).
0 0$SS 2:26 019 In a nutshell, then, what confronts us is the question whether there is adequate justification for striking the balance of convenience i-favor of the few rather than the many.- / Our inclination is to hold that there is not.
Lack-7 ing a contrary indication, we must assume that the inter-venors are bona fide organizations and that their members are prepared to make a reasonable financial contribution to the defrayal of those expenses normally incident to the representation of their interests ia litigation to which they have chosen to become a party.
Further, it is not immediately apparent to us that the cost differential to which the intervenors have alluded is sufficiently onerous to offset the substantial additional burden which would be imposed upon everyone else involved in the proceeding were the nearing held in Harrisburg or central New York State.
There is, however, no need to arrive at a final deci-sion on the matter before January.
By that time, we should be able to make a more informed judgment on, among other things, whether a Bethesda hearing is required to insure our ability to discharge our other responsibilities.
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Not surprising, counsel for both the applicants and the staff stated a preference for Bethesda.
Staff counsel did, however, evince some sympathic regard for the in-tervenors' concern once it had surfaced.
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. Although that may not be a dispositive factor, as above observed we think it is a weighty one.
FOR THE APPEAL BOARD b.bamhA Am)
C. Je($ Bish6p
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Secretary to the Appeal Board h
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