ML19309B242
| ML19309B242 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 03/06/1980 |
| From: | Pollard R CHESAPEAKE ENERGY ALLIANCE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8004030320 | |
| Download: ML19309B242 (9) | |
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UNITED STATES OF AMERICA CA:CM3-80.03,06 NUCLEAR REGULATORY COMMISSIG HEFORE THE ATCMIC SAFETY AND LIGNSING BOARD Q %
In the Matter of )
) /f c= W t METRCPOLITAN EDISCN CCEPANY ) Docket No. 50-289 ,
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CEA SUPPLEMENT TO ITS CMNIBUS MOTIO7 TO THE BOARD xa
'd CEA hereby submits the following supplement to its Omnibus Motion to the Board (CEA:OMB-80.02.13, hereinafter OMB), following the denial of its Motion to Permit Oral Argument--argument th'at had been requested in OMB, at 4. CSA notes that the denial of oral argument by the Bosrd placed a substantially greater burden on GA in the way of preparation of those written arguments in suppo-t of CMB.
The arguments advanced below also incorporate CEA's responses to NRC & LIC Responses to OMB. GA notes, however, that it has not yet received a copy of the Boird's February 22 Certification to the Commission on the Psychological Distress Contentions, which GA understands from conversation on March 4 with Lucinda Low Swartz to include Certification of the issue of financial assistance to parties seeking to raise psychol.ogical distress issues. Thus, CEA is not aware of the Bomi's argument on.that matter. (Ms. Swartz is forwarding to GA a ocpy of the February 22 Certification).
In this respect, CEA notes that to the axtent the Board has supported the matter of financial assistance .for parties litigating psychological distress (PD) issues, the Board may have opened the door to CEA's roquest for intervenor funding. For, CEA notes on review of the ComissiorJ - August 9 Order, discussing PD issues that:
" At the time the Commission reaches a decision on these issues, it will clso consider whether it can and should grant financial assistance to parties senking to raise these issuos in this caso.8 Since GA's contention 1 has been included in the Board's purview as a PD contention, this would nake CEA eligible for financial assistance if the Commission were to rule favorably on the matter.
Modified Adiudicatory Procedure (F)?)
Both NRC and LIC objact to the initial component of OMB in that it is not apparently addressed to any specific matter that calls for Board action under MAP. That, point is well taken in that GA was not sufficiently clear in linking the request for Board action under MAP to the i=pedimonts to the development l cf a full and fair record arising from the lack of adequate intervenor funding l and/cr lack of previous experience in NRC licensing procedures. That such a I
linkage was intended could, however havo been reasonably inferred from GA's
! discussion leading up to CSA's request for the Board to raise the matter yto the Commission.
GA notes that the handicaps and burdens experienced by the intervenors due to lack of funds and experience, besides soverely limiting the affectiveness of intervenors in developing a full and complete record in the proceedings, h 800403032c) l
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also have the effect of creating a bunien on other partie , including the Board, NRC, Staff, and Licensee, due to problems that are generated from the need to address issues such as late filings, motions seeking remedy for disadvantages experienced by intervenors, and other problems arising from intervonors' lack of familiarity with the numerous and complex rules governing licensing proceedings. Retrospectively, many of these probless may have been mitigated had the Board been more responsive to CIA's request for assistance in this matter in its Supplement to Hotion to Modify Memorandum and Onier (CEA:MMMO-79.09,28)
Emergency Planning Contentions e Now that the Board has ruked against the admission o' GA's emergency planning contentions (2(b), 2(c), 2(d), & 3) and set forth its reasons in its February 29 i Fourth Special Pre-Hearing Conference Order, GA intends to move for re-consideration cf that ruling in a separate filing. CIA notes, however, that one element of that argument, namely "The extent to which the petiticner's participation may reasenbly be expected to assist in developing a sound record.n will be addressed in part below.
Intervener Fundine There are two basic issues that must be addressed on the question of interrenor funding as it applies to GA. Firstly there is the matter of the Commission's policy, and seccndly, there is the matter of the specific merits of granting financial assistance to GA.
On the matter of Commission policy, the Board, along with NRC staff and Licensee, have relisi upon a static perceptien based on the Commission's 1976 Statement on this matter (CLI-76-23, 4 NRC 494), and its August 9 Order limiting consid- ;
eration of financial assistance to parties raising PD issues. . Such 1 a perception, however, fails to address the fact that since the TL2 accident there has been censiderable momentum towanis changing that policy, and partic-ularly, that since the issuance of the MAP (7590-01), the Ccmmission has placed a clear responsibility on Licensing Boards to assume initiative in pointing cut the need for revision and reformulatior. of policies to the Ccmmission, where such policiss tend to impede the development of a full and sound record.
Thus, the Board can no longer rightfully wait for the Commission to announce a change, or intended change, in its policy before acting on this matter, a xl
, the Staff's conclusioh that "notwithstanding any merits of funding intervennra or recommendations in favor of such funding by the Regovin com:nittee and others, there appears to be little value in certifying a questica that the Ccamissicn has alreasy resolved." (NRC Staff Response to CMB (GA:0MB:NRC-80.02.28) at 3, emphasis added) is clearly in error.
Licensee correctly notes that the recommendation for a ' pilot progras' of intervenor funding in NUREO 0660 at Task IV.E.1 is a draft document, and hence does not carry the full weight of an official NRC document. Since NUEEG 0660 sets a February 15 propcsed date for the, Commission to adopt the action plan, ,
that matter may have already been resolved--although CSA has not yet received l any notification on that matter.
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3 Furthermore NUREG 0660 refers at IV.E.1-1 to a # pilot program for intervenor funding in accordance with fiscal 1981 budget request." (emphasis added), leading to a reasonable inference that such a budget requeat has been submitted by the Commission, and that hence Commission policy is in the process of being reformulated. Such being the case, the Commission would doubtless binefit from ,
hearing and having the opportunity to review the considerable discussion of intervenor funding that has transpired during these proceedings, Irde.ed, CEA was given to understand that this issue has been aired far more fully than in previous licensing proceedings, if so, that would mako it all the more important to bring the matter to the attention of the Commission.
On the question of the NUREG 0660 proposal being for a ' pilot program',(as Licensee correctly points out) that matter seems to present little if any obstaclo in respect to the consideration of this issue by the Board. Indeed, CIA hereby azends its motion 3) ir. ONS by specifying that the matter of a pilot program for intervenor funding be certified to the Co. mission.
Further:aore, the needs of parties in this proceeding for funds, and the diversity of the nature, interests ~, and skills of the parties intervening in the TMI-1 proceedings would contribute substantially to the value of having these proceedings serve as the pilot program for IF. For such diversity wo'11d assist an evaluation of the effectiveness of an IF program, 2nd would allow provide i
data for a broader and more thorough set of criteria and procedures for IF than in prossedings with a smaller nuabor and variety of intervenors.
Mirthermore, given the possibility of IF for parties raining PD issues in these proceedings, and that that would' represent the first sucS program of ,IF by the NRC, it is appropriate that the procedure be estabb.shed as a pilot program, with the accompanying review and evaluation that i 3 entailsd. The value of such a pilot program and of the lessons learned f m it woald greatly be enhanced by the inclusion of all parties in need of IF. Furthermore, CEA8 s representative would be able to make a substantial contribution to the evaluation of the pilot program due to his extensive research experience (elaborated below in the discussion of the expertise that CEA will bring to the proceedings).
Frem the standpoint of the basic legal principle of equity, there seems to be little justification for providing preferential consideration for one class of intervenors over another (those raising PD issues over those whc are not),
again arguing for providing IF for all intervonors in these proceedings who request and justify the provision of IF in accordance with such criteria as can reasonably be developed.
Besides remedying the immediate problem of IF, a pilot pregram could also be readily designed to ascertaan and identify the specific obstacles and probless that have been experienced by intervenors in this proceedings with a view to identifying the concerns *-t an Office of Public Counsel or of Hearing Counsel would need to address--cc 4.rns that can best be recognized and enumerated by intervenors themselves.
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Material Contribution of GA Licensee goes on to note that the Rogovin Report's recommendation on IF includes the observatica that:
"If citizens or groups contribute materiallv ... oy pressing significant co-icerns that are not ceing urged oy other parties, they should be reimbursed ..." and that "... runding be conditioned upon the intervenor propounding nonfrivolous issues that are not being effectively advanced by others." (Ro6cvin at 143 4)
In roepect to this ccncern of Licensee, GA contends that it very definitely wou.td be able, if furding is made available,to contribute materially to the proceedings an to propound nontrivolous issues not being effectively advanced by othere.
Procedural Specific issues being propounded by GA include, perhaps first and foremost, the procedural issue (nuclear regulatory procedun--NRP), of which there are several elemmts:
Ecual Prrteetion Firstly, there is the basis issue of the rights of intervenors to be afforded equal protection, and the full opportunity to develop a full and thorough rec .rd (e.g. GA:PLI-79.09.03 at 1, GA:MMMO-79.09 28 at 2 g seq,, GA:0MB 80.02.13 at 1). This is a vital issue, both Lron the standpoints of Constitutional rights as well as of the improved thMighness of the regulatory procedure that it would lead to.
Due Process Rights to equal prctaction include those of due process, including the opportubity tc readily gain kncwledge, in a reasonably accessible format, of the rules under which the proceedings are conducted, and reasonable access to the lobal and technical resources required for pa r ticipation in an effective canner. These rights too GA has addressed (e.g. GA:PLI- at 1, GA MMMO.
79.09 27 at 2-3).
Accers to Informatien Effective access to the necessary information by the intervencra (as well as by other parties) has too been addressed by GA on several occassons as an impcrtant jaraner.er in NRC proceedings, and one that must be addressed hero (e.g. CSA MMMO-79.09.27 at 1-3, GA:MFMD-79.09.28 at i et seq., CA: CON-79.10.05a at 1 GA CON-79.10.22 at 12, and GA 0MB-80,02.13 at 3 E7.
Information Storace & Retrieval An integral component of the intervenors8 effective access to information as GA has addressed it is the manner in which information is (and is not) organized by the NRC, hence contributing to a state of infomation overload and ineffective access to, and retrieval of, relevant information (e.g GA:CG-I . 79.10.05a at 1 and GA:0MB 80.02.23 at 4). Furthermore, pursuant to the i issuance of NUREG-0631, Title List, TMI-1 Documents, GA has prepared comments, critinisms and suggestions on that volume following the request for such at vii.
Substantive Cn the matter of substantive, as opposed to procedural, issues, CSA has also advanced issues that have not otherwise been adequately addressed:
Probability In the matter of assessing the probability of events, including Class 9 related evebts, GA has thoroughly pursued, in its interrogatories to Staff and Licensee (GA: DIS:NRC 80.02.13, 25, a 26) and GA: DIS:LIC 80.02.25 a 26) an inves tigation of the basis for and reliability of the propability eatinates of events (GA: DIS:NRC-80.02.13 at 8-10 a 12, and CEA: DIS:LIC-80.02.25 at 2 a 5 6) ed has formulated g procise and th;,, rough definiti^npf probability. (CEA: DIS:LIC-80.02.25 at 8, and 80.02.26) witbcut the likes of which a meaningful discussion of probability estimates of varicus events can not take place,
5 Indeed, ultimately the resolution of ' class 9' accidents as an issue must include, and perhaps rest on, decisions made on the basis of valid and precise prcbability estimates. (Note that the qualificaticns of GA to address this and other issues it is pursuing will be presented belcw).
Mindset GA in its Centention 13 is the only intervenor sped fically addressing the issue of the development,and identificaticn, and ptevention of cperator
'mindset', and brings to bear considerable expertise in the area of psychology (see belov).
Medical Facilities No other intervenor is raising the inadequacy of nedical facilities in the event of a major offsite release of radiation as an essential element of thh emergency plan--a need that was brcught to GA's attentien by C;ngresswoman Barbara Mikulski after the TMI-2 accident. While the Board has dismissed that contention (2(b)) apparently understanding it only to refer to medical facilities in Baltimore, rather than within a fifty mile radius of TMI, C3A intends to seek to have that reinstated, especially given the extremely scant information on that matter in the Emergency plan.
Qualifications Besides the matter of the issues that GA is raising, there is also need to address the qualifications and expertise that GA will bring to the proceedings in evaluating the extent of GA's naterial contribution that can be expected if CA has the opportunity to participate in a full time capacity (something that will only be possible if GA receives adequate funding).
Constitutional Issues In this respect, GA representative, Robert Q. Pollard (MP), dr aws on six year's experience as Librarian at Baltimore City Jail, in which the Law Library plays a central role. There are numerous parallels between the situation of an intervenor in these proceedings and the plight of a defendant in criminal cart, with the need for an Office of Public Counsel paralleling the need for Office of Public Defender.
Experience gained in legal research, general understanding of legal process, especially concerning Constitutional and procedural matters, will enable EP '
te be able to address the issues of law that arise, and his substantial legal ability--as suggested by his score of 745 (99th percentile) in the Law School Admissicn Test--indicates significant contribution that could be expected in this regard, as well as in the overall analytic ability and understanding of process that can always be of value throughout the proceedings.
. Information Issues Separate from an ability to address the issue of right to information (again i semething that EP has been an advocate of in his role of Librarian at the l Baltimore City Jail), ROP has considerable expertise in the matter of inf;rmation ;
science, both in a theomtical context develr<vfd En conjunction with his !
formulation of a ;i:athematical model of beh6%: (hit-an and of systems in general) uhile he was a graduate studen+ i: J wlal Relations at Johns Hopkins University (M.A.1972), and in a prac+1r.2 . :, e g. classification and ~
coding for computer analysis of grievm ces upmssed on the eve of 'the French Revolution , as well as document management techniqu?s developed in his r)le as Librarun, 1
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In the develcpment of document management and information retrieval systems, KP draws on considerable experience with conputers, from a progranning and data analy A s standpoint,. and has developed a preposal for an Integrated Infornation and Connunication System at Baltinore City Jail, incorporating nedern video and conputer technology capabilities. As a recent delegate to the Maryland Gcverner's Conference on Libraries and Information Services, MP was a member of an ad, hoc Maryland Adviscry Grbup cn Information and Communicaticn ( GGIC) composed of other information scientists concerned with the appropriate use and development of modern information storage and retreival methodology.
Mathematical EP earned an Exhibition (Minor Scholarship) in Mathematics at Cambridge University (England), from whence he graduated with a S. A. in Ecobonics and Mathematics in 1966 He continued to maintain a nathematical analysis and approach in Economics, and then in Soviology and Psychology as a Graduate student at Johns Hopkins (censidered te be a center for the devekopment of mathematical models in Sociology), maintaining a focus on data analysis and methodology, mathematical models, and probability.
Psycholovv/Sociolecy EP's thesis research at Hopkins was en the relationship between personality, interperscnal behavier, and cininal behavior, and out of it he developed the outline of an integrated mathematical model of behavior, along with substantial expertise in the realm of the evaluation of psychometric tests.
An information science approach underlies the model of behavior, which incorporates characteristics of inf oraation transfornation systems, and includes a ecncern with information overload issues and facters associated withn the develcpment and processing of ' noise' and ' error 8 signals--natters that GA contends are integrally related to the develoonent of mindset in operators of nuclear plants and similarly conplex control systens.
EP's understanding of integrated infornation systems has relevance in the issue of mindset, in that inadequacios of control roon design tend to contribute substantially to the development of mindset, and hence in part need to be remedied to ccrrect and prevent the onset of mindset.
Medirsl Service Delivery CEA's pctential insight and contributien in this regard include EP's research
. experience at Hopkins School of Public Health and related professional interest in the matter--an interest that takes practical form in KP's position as a member cf the Board of Trustees of the People's Free Medival Clinic in Baltimore.
General Qualificatiens In addition to the specific skills described above, C2A's representative also brings a number of otber general skills that may be of considerable value, including parliamentary procedure, an extensive research background, along with i analytic and questioning skills, and a censiderable ability to conceptualize j and formulate resolutions of misunearsta-dings and conflict (an ability that the Board has to date tended to deny XP the opportunity to expre_s as the Board ackneyledged at the Seconi Special Pre Hearing Conference on Feb. 13)
. 7 That GA has the capability to make a substantial material contribution to these proceedings should be clear fron the above. What is also clear is that GA's continued effective participati n is contingent upon the prevision of assistance to GA, in the fom of full time support for GA's representative, and related clerical support.
For it is clear that the extent of demands on an intervenor, wd the smcunt of infcraation that must be digested, the never ending sequence of deadlin ses for filings, preparation of pre-filed written testimony, pa ticipation .in the Hearings, and the follon up to that is not a burien that can be expected to be carried by somecne u.m is obliged to work a full fourty hour week at another occupation.
The Board Chairnan expressed great sympathy for TMIA's attorney faced with
'the prospect of taking five depositions a day, however, where. is the comparable concern with GA's representative who must fulfil the responsibilities of a full day's work elsewhere beforevhe can address the matters in these proceedings.
As the proceedings progress, the difficulties associated with such a task gr;w steadily.
There is very' clearly a need for a prompt remedy for this matter, as there will be no effective redress of grievance available to CA if funding is denied and appeal of the issue 7.can not be taken until after the hearings are completed. . c Failure of the Board and Commission to resolte the matter favorably will preclude the ability of GA to be made whole for any wrong suffered and any right denied.
Therefore CA moves that the Board certify to the Co:r.ission the provision of financial assistance to GA in the amount of the attached budget request-Docu .ent Identification System Part 5 of CA's OX3 addressed the need for a systematic means of labelling documents in thiese proceedings. A does not intend to argue this natter further except to point to the convenience of the systen as used in this motien, and to state that GA's representative offers his services, on apprcpriate terms, to the Board for the purposes of elaborating on such a systen, and developing a more specific and detailed system that could be adoptr' without enesuntering the problems that NRC and Licensee have identified as cor.n as in their response to CMS.
i Respectfully submitted CHESAPEAKE ENERGY ALLIA::G, INC. ;
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Cated March 6, 1980 Attacaents: Sudget Request (1 p. )
CHESAPEAKE ENERGY ALLIANCE ,_ ,
INTERVENOR BUDGET REQUEST ~ i'i fROD. & UTii. MC.[d. .N.(,__,_
(eukal)~
Personnel 1 Full time representative (One year) 16,000 1 Half time senior clerk typist 4,500 20,500 F.I.C.A. & Related overhead costs 2,050 22,550 22,550 Supplies & Eauipment Office supplies (paper, file folders, etc) 500 Photocopying costs 500 Typewriter (IBM Selectric) 900 1,900 1,900 Telephone Long distance calls ($40/ month) 480 480 Travel 800 miles per month @ 20C/ mile 1,920 Out of town expenses (food & lodging) 500 2,420 2,420 Total (excluding witness expenses) $27,350
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UNITED STATES OF AMERICA (~-
NUCLEAR REGULATORY COMMISSION 0 O ~ TU C'S O C BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD l
In the Matter of )
)
METROPOLITAN EDISON C0!IPANY ) Docket No. 50-289
) (Restart ?)
(Three tiile Island Nuclear )
Station, Unit No. 1)
CERTIFICATE OF SERVICE I do hereby certify that I served a true and corr < et copy of the above-lobelled document on the below listed parties by first-class mailing:
Ivan W. Smith, Esquire Atemic Safety & Licensing P,oard Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Walter II. Jordan 881 West Outer Drive M' Oak Ridge, TN 37830 Dr. Linda W. Little 5000 IIermitage Drive Raleigh, NC 27612 George F. Trowbridge, Esquire '
Shaw, Pittman, Potts & Trowbridge // cc:rrca 1800 M Street, N.W. t. M -\
Washington, DC 20006 E - . --
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1 Docketing and Service Section U.S. Nuclear Regulatory Commission v. kh,hp[G Ecr*:
' Washington, DC 20555 'c, \
l s i \ j E::ecutive Legal Director U .S . Nuclear Regulatory Ccmmission Washington, DC 20555 Respectfully :nbmi '
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^ wf Dated: [wd {1 / i' o " "'"h 0- l1"?ds fUP ci!:.y,PEAF . i '.7!R G7 ? LLIAILm.