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Memorandum & Order Requiring Further Spec of Antinuclear Group Representing York,Newberry,Sholly,Ucs & TMI Alert Contentions,By 800731,following Issuance of Safety Evaluation
	ML19318B462
Person / Time
Site:	Crane
Issue date:	06/23/1980
From:	Smith I; Atomic Safety and Licensing Board Panel
To:	; ANTI-NUCLEAR GROUP REPRESENTING YORK, THREE MILE ISLAND ALERT, UNION OF CONCERNED SCIENTISTS
References
	NUDOCS 8006260191
	Download: ML19318B462 (15)
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Bd 6/23/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION se f,

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9 tCCW ATOMIC SAFETY AND LICENSING BOARD usgac 3t3323GS0

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Ivan W. Smith, Chairman zy 1

Dr. Walcer H. Jordan

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L ffs' g Dr. Linda W. Little 9

In the Matter of

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METROPOLITAN EDISON COMPANY

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Docket No. 50-289 SP

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(Three Mile Island Nuclear Station, Unit No. 1)

)

MEMORANDUM AND ORDER REQUIRING FURTHER SPECIFICATION OF CONTENTIONS (June 23, 1980)

On May 23, 1980 the' licensee served Licensee's Motion tT

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Require Further Specification of Contentions.

Licensee seeks -

a board order which would require intervenors to provide speci-fication of contentions in two categories.

The first includes those contentions accepted by the board as issues with the expectation and requirement that, with the benefit of discovery, further particulars would be specified.

These contentions are Aamodt Contention 5, ANGRY Contention 5(D), Newberry Contention 3(d)(9), Sholly Contentions 8(C), 8(T),14, and 16, and UCS Contentions 9, 10, and 13.

The second category of contentions includes those which were accepted without condition, but as to which licensee states that it has received discovery responses which fail to provide sufficient specificity for litigation.

These contentions are CEA Contentions 5, 6, 7, and 8, and TMIA Contentions 6 and 7.

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. Licensee also seeks an order which would preclude inter-venors who do not further specify contentions in accordance with the board order, from litigating any matter (other than "new

,information") which was not expressly included in the contention itself, or in the bases for the contentions, or identified by the intervenor in response to discovery requests.

Motion, p. 26.

The Aamodt family and CEA did not respond to licensee's motion.

We discuss the responses of UCS and TMIA, and Mr. Sholly's position below in connection with their respective contentions.

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The NRC staff responded to the motion-by opposing the request for specification except for Sholly Contention 14 and UCS Contention 13, which according to the staff are without bases.~

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The staff argues that because of'the Appeal Board's d'ecision in Houston Lightinc and Power Cocoany (Allens Creek Nuclear Gener-ating Station, U it 1), ALAB-590, 11 NRC

, April 22, 1980, n

this board may not require further specificity of contentions if there was sufficient basis for their acceptance under the criteria of ALAB-590.

The staff states:

Thus, based on this ruling, some of the contentions originally thought by the Licensing Board, the Licensee, or the Staff to have insufficient bases and to need further specificity may be admissible without a further showing.

It is the Staff's view that, under the Allens Creek decision, Aamodt #5, ANGRY #5(D), Newberry

3(d)(9), Sholly #8(C), Sholly #8(T) and Sholly #16 are all presently admissible without further specificity by the parties.

Each of the contentions named above 1/

NRC Staff Response to Licensee's Motion for Further Specification, June 12, 1980.

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. includes a basis for the assertions and gives all parties involved to be litigated.57easonable notice as to the issues For these reasons, that portion of Licensee's Motion which seeks further clarifica-tion of these six contentions should be denied.

[ Footnotes 3 and 4 omitted.]

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Allens Creek only discussed "the acceptance of a contention for the limited purpose of determining whether to allow intervention under 10 C.F.R. 2.714."

Slio op. at 16.

Although denial of any of these j

five contentions will not deny intervention status J

to the parties concerned, it seems that the accepta-bility of all contentions should be judged by the same standard.

Staff response, p. 3.

The staff has misread ALAB-590.

Its position is out of step wic.h established procedures under NRC rules for developing issues for litigation.

The staff has confused the bases require-ments of 10 CFR 2.714 with the~ specificity standards contemplated by other rules.

The Appeal Board in ALAB-590 carefully noted that it was considering the threshold admissibility criteria for contentions under Section 2.714.

Slip op., pp. 9, 11, 14, and 15.

In this proceeding, discovery, except for new information, has been completed and the parties are now preparing to go to hearing.

After a petitioner and his contentions have been accepted into the proceeding, a different, more demanding obligation arises.

Id., p. 11.

During the interval between accepting contentions and hearing them, boards have the continuing responsibility and authority to require the refinement of contentions until they are

. suitable for litigation.

Beginning with Section 2.751a(1) and (2), the board must provide for the identification of key issues.

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Then it must permit discovery under Section 2.740 for the further identification of issues.

Before the matter goes to hearing, the board should (in some cases must) consider the " Simplification, clarification and specification of the issues;" and consider whether pleadings (contentions) ~ hould be amended.

Section 2.752(1).

s and (2).

Moreover, if a party is in default of the board's dis-covery orders or orders under Section 2.751a and 2.752, the board may, if it is just under the circumstances, find facts in favor of one party over another.

Section 2.707(a).

Our rulings accepting contentions subj ect to la'ter speci-~

fication were entirely consistent with ALAB-590.

In fact, it is the very action anticipated by, and in some cases made necessary by the reasoning of ALAB-590.

We must, according to ALAB-590, accept contentions where the reasons (basis) for them has been

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stated.

Tel., p. 11.

But often it is not until the board has provided some mechanism for specifying the bases can an adverse party avail itself of the provisions of 2.749 by demonstrating that there is no genuine issue to be heard, or go to hearing on the issue.

The Appeal Board'in ALAB-590 had no need to discuss a licensing board's authority to require the further specifica-tion of admitted contentions.

Its silence on this aspect of the matter seems to have misled the staff.

See also Tr. 1874.

Parties may file motions for stramary disposition.

I Such motions must be in the board's hands no later than August 5,

1980, Responses to such motions will be by special order of the board.

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. Aamodt Contention 5 would require that evacuation plans provide for the care or relocation of livestock in emergencies.

The Aamodts cite as bases for the contention their personal but unspecified experiences during the March 1979 evacuations, and the problem of mastitis or " going dry" in dairy cattle.

The board accepted the contention, but noted that it wasn't sufficiently specific for litigation.

We stated that we would expect it to be revised after discovery.

Licensee now requests the board to enforce this expectation, but makes no particular requests.

In our order of June 19, 1980, we suspended activities on emergency planning issues, so there is no need for the Aamodts-to respond until the suspension is lifted.

In the meantime, some observations on the contention might be helpful.

A part of the contention is an expression of a value judgment, i.e.,

live-a+1 stock should be cared for or relocated during evacuations.

It i

might be difficult to provide factual specifics as to an individual's judgment, but the Aamodes may wish to elaborate upon their experi-ences and the practical problems brought about by the abandonment i

1 of livestock.

The other aspect, whether or not licensee's revised emergency plan actually does provide for the care or relocation of livestock, and if so, whether the provision is realistic, is a discrete factual consideration which the Aamodt family should thoroughly address when called upon to do so when procedures on emergency plans are resumed.'

The Aamodt family is required to

i 8-specify their Contention 5 within 20 days (plus five Jays for 1

service) following the date of the order lifting the suspension of emergency planning matters.

j ANGRY's Contention 5(D) demands the installation in effluent I

pathways of systems for the rapid filtration of large volumes of contaminated gases and fluids.

We accepted the contention with the understanding that ANGRY would specify the particulars in the course of discovery.

ANGRY has provided what appears to be ade-quate specificity in response to licensee's Interrogatory 5-2 to ANGRY._

ANGRY may, if it so elects, formally specify its Conten-tion 5(D) in accordance with the order below, but it also may -

choose to remain silent and by its silence indicate Ehat the

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contention is specified by the response to the interrogatory.

Newberry's Contention 3(d)(9) asserts, inter alia, that most local municipalities are not aware of their responsibility to

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develop a separate emergency plan.

We accepted the contention with this allegation but directed Newberry to specify the basis for it.

Newberry did not specify but is directed to do so within 20 days (plus five days for service) following the lifting af the suspension on emergency planning matters.

Mr. Sho11v did not file a response to licensee's motion to specify contentions but he filed Intervenor Steven B. Sholly Reconsideration of Contentions on June 5, 1980 which either y

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. promises to specify or undertakes to specify each of the conten-tions covered in licensee's motion, except for Sholly Contention 16, which he has since withdrawn.

On June 18, the chairman con-ferred with Mr. Sholly and counsel for the licensee requesting that licensee address the adequacy of Mr. Sho11y's June 5 filing.

After the proposals in Mr. Sholly's June 5 filing realize final form, the licensee will report to the board whether it continues to seek relief.

UCS Contentions 9,10, and 13 were acceptcl with the expec-3/

tation that further specification would be appropriate. -

UCS, itself, has no problem with the concept of specifying its Con-tentions 9, 10, and 13.

In its June 5 answer to licensee's motion, UCS stated:

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UCS notes at the ou: set that we recognize our obligation to meet the directives of the Board with respect to contentions 9,10 and 13 after the close of discovery.

We will need some reasonable period of time thereafter in which to do so.

There is no 2

justification, however, for requiring this showing to be made~before discovery is completed, as the licensee has requested.

We also note that we have not yet received the staff's filing on Class 9 acci-dents, nor do we have the SER.

Nor, indeed, have we i

received full answers to all of our interrogatories.

Union of Concerned Scientists Opposition to Licensee's Motion to Require Further Specification of Contentions, June 5,1980, pp.1-2.

3/

Contrary to the implication of the staff's June 12 response 3

to the motion, the board in adopting UCS Contentions 9 and 10, included them in the category of example-type conten-tions which should be refined in the discovery process.

First Soecial Prehearing Conference Order, Dece=ber 18, 1979, LBP-79-34, 10 NRC 828, at 831-32,

. Since UCS filed its answer to licensee's motion, the SER, NUREC-0680, and the staff report of TMI-1 Potential Core Damage jAccident Sequences and Preventive and Mitigative Measures (referred to by UCS as the " filing on Class 9 accidents").has been published and served.

Although UCS suggests that it may have been prevented from specifying its contentions because it has not received full answers to interrogatories, it has not provided details nor are we aware of any outstanding discovery disputes involving UCS.

Therefore, we believe that the time for specifying the UCS contentions will be ripe within the time period provided below, and UCS is directed to provide the re-quested specification.

Any other intervenor who has been per-mitted to adopt any of UCS. Contentions 9, 10, or 13, such as ANGRY, is also included in the board's order t>.

specify the 4/

respective UCS contentions.-

CEA Contentions 5, 6, 7, and 8 are also included in licensee's motion.

These contentions were accepted by the board wichout any conclu?ons as to later specificity.

The licensee's motion.is founded on CEA's responses to licensee's interrogatories which, licensee asserts, were inadequate to inform it of the specifics of CEA's allegations.

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The board has been heavily involved in licensee's efforts to discover the particulars of CEA's contentions.

The licensee served 4/

ECNP had beer granted the right to adopt UCS Contentions 10 and 13, but because of default that opportunity was revoked.

June 12, 1980 Memorandum and Order On Licensee's Motion for Sanctions Against Environmental Coalition on Nuclear Power, (Slip op., p. 23), LBP-80-17, 11 NRC (1980).

. its "first" set of interrogatories upon CEA on January 18, 1980.

On March 17, CEA filed its " response" to the interrogatories.

On March 31, licensee served its first motion to compel CEA answers to certain of licensee's interrogatories.

CEA did not answer the motion,to. compel.

Licensee's first motion to compel identified three categories of asserted answer failures, the " toss of the ball back" answer, the non-responsive or incomplete answer, and no answer whatever.

The board agreed with licensee and, in its April 16 memorandum and order, CEA was directed to provide responses to the licensee's interrogatories, including important interrogatories on CEA Con-tentions 5 through 8.

In response to the board's order, CEA on April 26 filed its "Further Response" to licensee interrogatories.

In response to the interrogatories relating to CEA's Contentions 5, 7, and 8, CEA's answer to most of them (twenty in all) was that "CEA is not presently able to identify [the requested information]."

Also, CEA failed to provide a complete response to Interroga-tory 5-5, the board had overlooked compelling CEA to respond to Interrogatory 6-2, and CEA had overlooked the board's order to respond to Interrogatories 6-3 (b) and 6-3 (c).

Therefore on May 12, licensee filed its second motion to compel discovery of CEA seeking responses to the Interrogatory 5-5 and the overlooked interroga-tory under Contention 6.

CEA agreed to respond to these interro-gatories at the prehearing conference of May 13.

Tr. 1951-53.

. In our May 22 memorandum and order (p.12), CEA was directed to supply the information that it had agreed to supply.

CEA

,has not complied with the board's order nor its own promise.

The board had previously ruled that the responses to li-censee's interrogatories were appropriate under 10 CFR 2.740.

April 16 memorandum and order, pp.1-2.

It is only with respect to Interrogatories 5-5, 6-2, 6-3(b) and 6-3 (c) that CEA is in default of a board order.

The other answers, to the effect that CEA does not have the requested information, are appro-priate responses under the discovery rules, if true.

We assume that CEA would have supplemented its "not-presently-able-to-identif/' answers with the requested informatifon as required' by~

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10 CFR 2.740(e)(2) if it later came into possession of informa-tion responsive to those interrogatories.

Even where CEA has defaulted in responding to the board's May 22 order to honor its agreement to respond, we believe that the problem rests with CEA's lack of information and its inability to come to grips with discovery procedures rather than a willful disobedience of.our order.

Having closely followed licensee's discovery demands and l

CEA's efforts to respond to them, it appears to the board that, even after discovery, CEA does not know much about the subj ect matter of its Contentions 5, 6, 7, and 8.

Licensee is entitled either to the information on the particulars of CEA's contentions or to some other relief.

While we have our doubts that an order

. to CEA to add specification to its contentions will be produc-tive, we do not want to foreclose the possibility that CEA has since developed the information supporting its contentions and is prepared to produce it.

Therefore, we direct CEA to amend its Contentions 5, 6,'i, and 8 by providing specificity within the time provided below, or, in the alternative, to respond to the interrogatories within ten days (plus five days for service) fol-lowing service of this order.

If CEA fails to do either, licensea must adjust.

We are, however, disinclined to grant to licensee the ultimate relief in the exact form requested in its May 23 motion (p. 26),

i'.e., to limit intervenor's litigation.

While we agree as a general principle that intervenors should not be permit *rd to litigate their own contention beyond the specificity contained in the contention, the bases for them, or the related responses to interrogatories (except for "new" information), we hesitate to apply the principle out of context of the circumstance prevail-ing when the problem arises.

If licensee wishes to request more specific relief consistent with this principle, it may do so, but in the meantime, licensee should proceed to prepare its case giving due regard to the importance of the contentions, the ex-tent to which the issue is also embodied in mandatory issues and other contentions, and the information made available to it by the intervenor.

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. TMIA's Contentions 6 and 7 were accepted unconditionally, and, as is the case with CEA, licensee seeks greater specificity of these contentions because it is not satisfied with discovery responses.

Also, as with CEA, the board has been required to monitor closely the discovery disputes between licensee and TMIA.

On April 11, we granted licensee's motion to compel discovery of TMIA.

With respect to interrogatories covering TMIA's Conten-tions 6 and 7, the responses have generally been that the in-formation requested has not yet been developed, but that it will be supplied when it becomes available.

However, TMIA has never supplemented its responses on Contentions 6 and 7 with additional information as far as we are aware.

TMIA answered licensee's motion to require further specificity (June 6 Response) but it ignored completely licensee's discus-sion (pp.18-24) of the previous deficiencies in TMIA's discovery responses, and it ignored its own promises (and the regulatory requirement) that it will supplement responses to interrogatories when the information becomes available to it.

TMIA, implicitly at least, acknowledges the need to develop further its conten-l tions, but states that the SER is essential for this purpose.

TMIA's Response requires the inference that it still has no l

information concerning Contentions 6 and 7 interrogatories which it has previously been unable to answer for want of information.

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The inference must c.so be drawn that, if this be so, TMIA will l

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depend entirely on the SER in support of its Contentions 6 and 7.

If we are wrong about this, TMIA has a duty, without anv delav whatever, to answer licensee's interrogatories with information which has come to its possession since it reported that it had no information.

We are not referring to information in the SER which, in the meantime on June 16 has been served.

Based upon all information, SER and otherwise, TMIA shall within the ti=e provided below, specify its contention.

In the event of THEA's failure, licensee will be entitled to the relief discussed above (p.13, suora) with respect to limiting litigation to the specifics of contentions.

If it should become evident that TMIA has been willfully in default of the board's discovery orders, licensee, by this order is not precluded from moving for relief under 10 CFR 2.707.

Unless otherwise provided above in this order, the respec-tive contentions shall be made specific by service on or before July 31, 1980.

This date has been selected because it follows the close of discovery on the SER.

However, where'intervenors are able to specify contentions without relying upon information in the SER, such specification should be made earlier and as soon as possible.

THE ATOMIC SAFETY AND ICENSING SOARD Ah Ivan W. Smith, Chairman Bethesda, Maryland June 23, 1980 r

ML19318B462

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