ML19323H697

Response to ASLB 800513 Prehearing Conference Questions Re Intervenor Ability to Answer Interrogatories.Opposes NRC & Licensee Pattern of Procedural Harassment.Certificate of Svc Encl

ML19323H697
Person / Time
Site:	Three Mile Island
Issue date:	06/03/1980
From:	Kepford C Environmental Coalition on Nuclear Power
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19323H694	List: ML19323H697
References
NUDOCS 8006160067
Download: ML19323H697 (6)

Text

_ ._

g u/

INVIRONMENTAL COALITION ON NUCLE AR POWER

> .:so u,h.. c sa. 4 c s .., ;. a.e.... p. iw.

2is as4.a2 a . m.. . . o.,.< ,.,, : c . ,soo, .,,,._ e o n e.m s ..... . t75 2 m sa na. ;oo..a >.sa ,oa - .:a orioeo. A.. . se. . con.S.. r.. i6aci ei. 227 axo UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIO:4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

METROPOLITA t EDISON COMPANY, ET AL. Docket No. 50-289 (Three Mile Island, Unit 1)

ECNP Intervenors Answer to a Board Question At the May 13, 1980, Prehearing Conference, the Licensing Board offered ECNP the opportunity to answer the question posed by the Board as to whether or not ECNP could have answered the interrogatories requested by the Suspended Licensee in the time allotted.

The answer to this questio.. is no; the ECNP Intervenors were co.mitted, as we believe this Board had been well advised, in the TMI-2 Appeal Soard proceedings.

In the aircraft crash portion of the original TMI-2 licensing proceeding, which the Comission chose to defer resolution so as to permit operation of TMI-2, the NRC Staf f requested an extension of time to file its after-hearing memorandum.

This had been due April 15, 1930. An extension was granted until April 28, 1930. l ECNP also faced unanticipated problems in this area, and now is largely consured with the still unresolved radon-222 memorandum.

We observe that this is yet another filing which consuces our time and re- . l sources, but which does not move ECNP one inch closer to its yet unfilfilled dis-covery requests. ECNP strenuously objects to the continuing pattern of procedural ha rras s. en t by the NRC Staff, the Suspended Licensee, and this Licensing Board in this proceeding. Every possible advantage is being taken of ECNP to ensure that ECNP (a) does not get any relevant discovery materials requested, (b) that ECNP will be required to file enough papers to totally occupy all of the time of ECNP, and (c) deadlines will continue to be set which are physically impssible for ECNP to met. The obvious intent is to drive ECNP out of this and very other proceeding to which EC1P is a party.

80061ueo M

$ 'D

.., ,w

The initial ECMP discovery requests were given to Staff counsel Marcia Mulkey on No'vember 14, 1979. These materials (nine in number) were delivered in January,1980, but only af ter all materials pertaining to the TMI-2 accident had been selectively deleted and withheld. A se cond list was mailed to Ms.

Jona Souder on January 22, 1980, on the advice of Staff Counsel Lucinda Low Swartz. Not a single piece of paper of that request was ever delivered, even though Staff counsel had made repeated comditments to fil 1 such requests. We observe that the Staff has never made any objection to any ECNP discovery requests.

We also observe that this Board at the February 13, 1980, Prehearing Conference set deadlines for making motions to compel discovery which, as the Board was then advised, ECNP could not meet because of the necessary preparations for the THI-2 Appeal Board Hearings. Furthemore, on top of these burdens, the Sus-pended Licensee has refused the one simple request made of them for a copy of Appendix 2A of the FSAR. In addition, the Suspended Licensee would require ECMP to expend countless hours of driving and procurement of lodging away from hcme to use the " reading room." On top of that, if ECMP needed to take out materials, they were available at outrageous prices, allowing the Suspended Licensee to profit from the discovery process. Similarly, transcripts of this proceeding are available to ECNP only at an enomous cost in time, travel, and expense.

These burdens of extra travel, extra time, and extra expense are not burdens ECNP voluntarily accepted. These burdens were imposed by ECNP's adversaries. In a similar vein, most of the proceedings to which ECNP is a party are products of the NRC policy of permitting the operation of nuclear power plants with unresolved enviornmental and safety issues. Thus, the TMI-1 Festart Hearings and the TMI-2 Technical Specifications Hearings are Utifacts of NRC policy. As a result, the

need for ECNP to act to protect its members and their interests from the Saspended t Licensee and the NRC have grown, but not as a result of our actions.

l ECNP has not been fined by the NRC for violating NRC regulations. ECNP is not accussed of having caused from 200 to 400 infant mortalities. ECNP is not being investigated by the Justice Cepartment for possible criminal prosecution, nor is ECNP the subject of any Grand Jury investigations. Nor has ECNP been ever criticized by any investigative body for its role in any NRC proceeding. ,

Both the President's Cormission on the Accident at Three Mile Island and the Special Inquiry Group of the NRC itself found serious flaws in the attitudes or the Suspended Licensee and the NRC Staff (See the Main Report of the President's Cor. mission, pp. 7-25, 43-56; see the " Report to the Cortmissioners and to the Public" of the Special Inquiry Group of the NRC, pp.97-108,112-114,117-119).

7.-

Furthemore, in the "Paport of the Office of Chief Counsel on the riucl' ear Regulatory Commission" of the President's Comission, a thorough discussion is given concern-ing the various ways the Conaission and its Licensing and Appeal Boards have swept safety concerns 0.,ide so that nuclear power plants could be allowed to operate (see pp.49-140), as happened at TMI-2. ECNP hereby incorporates all of these materials by reference into this filing.

Since the TMI-2 accident began, ECtP is not aware of any single change in at-titude among any party (utility or NRC Staff) or any Board (Licensing or Appeal in any proceeding) to which EC4P is a party which would benefit the health and safety of the public. What EClP has seen is a concerted drive.to drive ECIP from every such proceeding, initially, by withholding infomation any by the un-precedented demands to answer up .to 2,700 interrogatories. The next tactic, when requests for pro'tective orders are dutifully denied, is to move for the expulsion of ECIP from the proceeding or to'othemise curtail the participation of EC:lP.

None of these actions has ever been construed so as to increase the level of pro-tection of the health and safety of the public. Quite to the contrary, _ there have been few procedural rights of ECilP which have not been sacrificed in this' pmceeding (and in Susqueharaa and the TMI-2 remanded proceedings) so as to pro-

~

tect the utility and the NRC Staff from ECIP.

Because ECIP does not have large quantities of resources available to it in tems of money or persons capable of substantially contributing to its legal en-deavors, such legal efforts, as in the case of this proceeding, are necessarily fragile. The efforts of ECIP are very dependent on free access to infomation and the time to view, review, and weigh the ihformation. We sadly observe that it is only since the TMI-2 accident that the Suspended Licensee (or Applicant, as the case may be), the fiRC Staff, and, appropriate Board in every oroceedinc to which ECIP is a party, have taken every effort to (a) ensure that ECNP gets no needed information or (b) ensure that ECNP doesinot have time to develop its own case. The Commission's own rules state that Every party to a proceeding shall have the right to present such oral and documentary evidence and rebuttal evidence and conduct such cross' examination iis may be required for the full and true disclosure of thel facts. (10 C.F.R. 2.743(a))

Yet, with this Board's assistance, the Suspended Licensee and the :lRC Staff con- ,

tinue to withhold from ECNP the very information ECIP needs for its case. In addition, every procedural harrassment has bee thrown in the way of ECNP. What-ever the purpose of such harrassments may have been, the effect has been to totally

w

~ __ _ _. . _ .. _ . . _

___ m o._. _

~

deny'ECNP all. rights of preparation of its case. Time goes by, the level of over-work continues, yet ECNP is no closer to being ready for trilil new in either the TMI-1 Pastart Proceddings or Susquehanna 1 and 2 than it was nine months ago. ECNP, as a result of the procedural harrassmnt in these two proceedings, was unable, due to the lack of human and financial resources, to offer witnesses in the radon-222 proceeding. In addition, the preparation of even cross-examination, for that proceeding had to be severely curtailed for lack of resources. ECNP sees no reason to believe other than the Suspended Licensee (and the Applicant in Susquehanna), the NRC Staff, and the Licensing Board (and the Licensing Board in Susquehanna) do not want the full., infomed participation of ECMP in this or any other proceeding. ECNP is not aware of any evidence whatsoever to the contrary.

We have not seen this Board ask the Staff why the ECNP discovery requests have not, or could not, or will not be completely fulfilled, as the Staff promised repeatedly!

We do see that this Board is actively protecting the NRC Staff and the Suspended Licensee from a fully infomed ECNP. There seems little other explanation for the extraordinary burdens which the unfunded ECNP is required to bear, while the well-funded parties, the NRC Staff and the Suspended Licensee, are protected from heving to fulfill discovery requests and (as noted in our January 24, 1980, filing) the need to answer interrogatories.

The problems ECNP faces in this proceeding are not of the making of ECNP.

The applications of sanctions against ECNP will not contribute to "the full and true disclosure of the fac.cs," nor will any further required filings. Quite the contrary, if there is any real intent for the " full and true disclosure of the facts," ECNP should be made whole by (a) the receipt of all requested documents, (b) the granting of time to develop interrogatories, and (c) the granting of time ,

to review and analyze the information and interrogatories.

It is the Staff and Suspended Licensee which are the root of any problems.

If indeed the proceeding is delayed as ECNP hereby requests, such a delay is ab-solutely necessary "for the full and true disclosure of the facts." It is, af ter all, the Staff and Applicant who took that risk in their selective treatment of ECNP.

Here we must thank Staff Counsel James Tourtellote for at least one small piece of information that ECNP is not under surveillance. At the May 13, 1980, Prehearing Conference, he suggested that (paraphrased) -- as Dr. Kepford well knows -- a con- -

siderable body of information on the TMI-2 accident is on microfiche at the Penn State Library. Had Mr. Tourtellote been aware of the activities of the ECUP inter-venors, he would not have made the false reference to Dr. Kepford's knowlecge, of the Penn State Library. But material on microfiche is of no assistance, unless there is available years for use. Neither^ Drs. Kepford nor Johnsrud can withstand the glare of a microfiche reader. Thus, extra time would be needed, not less, as has been demanded in this and all other proceedings to which ECNP is a party.

~

Lastly, as this ' Board has observed, the contentions of ECfiP " raise important questions...concerning the public health and safety...." (ibmarandum and Order, Ap ril 11, 1930, p. 2 ) . We agree. In the cas'c of Vemont Yankee vs. f4RDC, the Supreme Court stated t' eat '

4 The Cocraission's prime area of concern in the licensing context...

is public health and safety. (Slip Opinion, p. 23)

ECitP submits that the protection of the health and safety is the prime concern of any Licensing Board, and as a result, any predetemined schedule must take I

a subordinate role to the Board's prime area of concern. ECfiP has raised valid contentions concerning the public. health and safety, but has been denied access to the very information.absolut51y necessary to ask interrogatoires, ask follow-E up discovery requests, folicw-up interrogatories, and, indeed, even to properly answer interrogatories. For this Board to impose any sanctions upon ECitP, or even to pemit the continued withholding of properly requested infomation from the Staff to meet an arbitrary schedule would be a travesty of justice.

~

Respectfully submitted, June 3, 1980. ~

.id?:tsc c:-7 y . m /)

Cnauncey Xepford / '

Representative of the

, ECI(P Intervenors 4

G O

ei I '

i 3 , - , v -. _,m.,. . _ ~ e ,

CERTIFICATE OF SERVICE l I

I hereby cirtify that copies of ECNP INTERVENORS ANSWER TO A BOARD QUESTION have been served on the following by deposit in the U.S. Mail, first class, postage paid, on this M day of June,1980:

> /b f

, ktctxw: )/!& b-Chauncey Xepforp' ' / /

72n W. Smith, Esq. Docketing and Service Section ,

ccie Saf ety and Licensing Board Of fic e of t he Sec ret ary -

. S. Nuclear Regulatory Cca:siasion U .S. M.tclear 9egul atory Cersmission whingto n, D.C. 20555 Washington, D.C. 20555 ,

t. Yalter H. Jerd an James A . Tou rt ell ott e, Esq.

31 W. Cu ter Drive Of fice cuf Executive Legal Director

'1 Ridge, Tennessee 37330 U .S . FLte l e ar Re gu l at ory Cocznissio n ,

Washington, D .C . 20555 S *

r. Linda Y. Little George F. Trowbridge, Esq.

200 Her:sitage Drive - ,

. Shaw, Pittman, Potta & Trowbridge

'loigh, ."erth Carolina 27612 1300 X Street, N. Y. - .-

Washington, D.C. 2OOCS -

.i .

D lD l0 030 Y M M e MUJUX/AL me

, -