ML19353A431
| ML19353A431 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/06/1981 |
| From: | Swartz L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| NUDOCS 8101090236 | |
| Download: ML19353A431 (8) | |
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m UtilTED STATES OF A'1 ERICA Q
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NUCLEAR REGULATORY C0icilSSION p,
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A BEFORE THE AT0'11C SAFETY AND LICENSING BOARD In the Matter of
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METROPOLITAN EDISON C0FIPAilY,
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(Three Mile Island, Unit 1)
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NRC STAFF RESPONSE TO ECilP MOTION DATED DECEMBER 15, 1980 I.
Introduction On December 15, 1980, ECllP filed a response to the Licensing Board's "liemorandum and Order" of November 25,1980, " Order to Environmental Coalition on Nuclear Power" dated December 4,1980, and " Memorandum and Order" of December 11, 1980. Although entitled a " Response," ECNP's December 15, 1980 makes four requests and on December 22,1980, the Licensing Board ruled that the " Response" should be treated as a motion and that other parties should respond by January 6,1981.
ECNP's first request is that the Board order the Staff to serve NUREG-0654 (Revision 1) on ECilP.
(" Response" at 2.) Inasmuch as this document was officially served on December 10, 1980 and was personally served on a representative of ECNP on December 19, 1980, this request is now moot.
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2 ECNP next requests that the Board grant "a reasonable extension of time follo.iing receipt of NUREG-0554" in order that ECNP m23 atter; to formulate discovery requests.
(" Response"at2.) ECNP's third request is that its a
revised emergency planning contentions filed January 7, 1980 be reconsidered.
(" Response at 3.) The fourth request is that the existing Licensing Board be disqualified and a new Board convened to *near and decide' the energencj planning issues.
(" Response" at 3.) The Staff opposes all three of th'ese requests.
II. Discussion A.
Request for an Extension of Time to Pursue Discovery In their December 11, 1980 " Memorandum and Order," the Licensing Board permitted discovery on new information appearing in the Staff's SER on emergency planning. Parties were permitted to serve interrogatories "upon the parties from.whom discovery is sought" at a December 19, 1980 meeting of all intervenors with emergency planning contentions, the Staff, I
and the licensee. Although ECNP was represented at that meeting, that group submitted no discovery requests.
The December 15 " Response" asks for a " reasonable extension of time" in which ECNP could peruse NUREG-0654 and prepare discovery requests. The Staff opposes such an extension. ECNP was officially served with this document at the same time as all the other intervenors with emergency
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. 4 planning contentions, yet the other intervenors were ab' to review the
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NL' REC and determine whether they desired discovery cr, the documerts in the i
time allowed by the Licensing Board.
e Under the Commission's Rules of Practice, Licensing Boards have broad powers to control tne course of a hearing.
10 C.F.R. 5 2.710, 5 2.757.
Licensing Boards are specifically empowered to limit the scope of discovery procedures. 10 C.F.R. 5 2.740(b). Exercising its discretion, the Licensing Board in this proceeding set a schedule upon which discovery should proceed on emergency planning issues.
ECNP not only decline.: to take advantage of the discovery opportunity established by the Licensing Board, but also is now seeking a new discnvery period with no explanation as to its particular need or desire to participate in discovery. The Staff opposes ECNP's request for an extension of time to pursue discovery.
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Request to Reconsider ECNP Revised Emergency Planning Contentions Filed January 7, 1980 On January 7,1980, ECNP submitted its revised contentions on emergency planning. Although they were not timely filed, the Licensing Board accepted approximately one-third of those contentions (" Interim Order on Late Filad Emergency Planning Contentions" dated February 15,1980). Most of these contentions remain to be litigated;in this proceeding.
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ii In its " Response," ECNP asks that all of the contentions in its i
January 7, 1980 filing be admitted. This is, in effect, a motion for
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reconsideration of the Licensing Board's February 15,1980 Order. The t
Commission's Rules of Practice do not specifically address motions for reconsideration of a Licensing Board decision or standards that might e
apply to such motions. Section 2.730(b), however, does state that any motion "shall be in writing, shall state with particularity'the grounds and relief sought, and shall be accompanied by any affidavit or other evidence relied on..."
Further, the Federal Rules of Civil Procedure, which may be relied on in interpreting i4RC Rules of Practice 'see, Allied-General Nuclear Services, et al. (Barnwel' Fuel Receiving and 'torage Station), LBP-77-13, 5 NRC 489 (1977)), provide several reasons which may be used to seek relief from a judgment or order. Federal Rules of Civil Practice 60(b). These reasons include mistake, newly-discovered evidence, and fraud.
b In the instant " Response," ECNP has presented no reasons and no evidence as to why, after almost one year, it suddenly believes its January 7,1980 L
j filing should be reconsidered by the Licensing Board.
Because ECNP has I
not complied with 3 2.730(b) and has given no basis for its motion, the Staff opposes the request for reconsideration.
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Recuest to Disqualify Licensing Brr d and to Reconvene a New Board to Hear Emergency Planning Issues j
i On page 3 of its " Response," ECNP states that the Licensing Board has i
" disqualified itself to hear [ emergency planning] issues" and makes a reference I
to the transcript from October 31, 1980 (Tr. 4512-14). Upon a more careful reading of the transcript than was apparently given by ECHF, it is clear that the Licensing Board was not disqualifying itself to hear these issues. Rather, the Board was indicating the difficulty it foresees in adjudicating the numerous complex and very detailed emergency planning contentions, particularly those dealing with iocal emergency planning.
f As the Board stated on page 4513 of the transcript, "there are moly too many details in five county emergency plans to be adjudicated u the context of this case or any adjudication that I am aware of".
On that same page the Board specifically recognized its responsibility to hear emergency planning issues:
"it is too late in the proceeding for us to go to the Conrnission and recocinend that, or to the Executive Director for Opere' ions or anybody, and recommend that there be a whole new process put in place.
It is too late. We are going to have to take it as it comes."
Not only has the Licensing Board not disqualified itself, but ECNP has no ground to ask for such action. There has been no assertion of bias or prejudice and none could be shown. Further, any motion for disqualifica-tion must be accompanied by an affidavit establishing the pasis for such i..
. a charge 10 C.F.R. 5 2.704(c). Detroit Edison Company (Greenwood Energy Center), ALAB-225, 8 AEC 379 (1974). No such affidavit has been filed by ECHP. The Staff opposes this request by ECNP.
Ill. Conclusion For the reasons stated above, the Staff opposes ECiiP's request for an extended discovery period on the Staff's emergency planning SER, for reconsideration of its January 7,1980 filing, and for disqualification of the present Licensing Board.
Respectfully submitted, QL (i, lh E.
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Lucinda Low Swartz Counsel for NRC Staff Dated at Bethesda, Maryland this 6th day of January, 1981 i
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I UNITED STATES OF AMERICA NUCLEAR REGULATORY C0tU41SS10N i
I BEFORE THE AT0!!IC SAFETY-AND LICENSING BOARD I.
t In the Matter of
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j METROPOLITAN EDISON COMPANY,
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(Tnree Mile Island, Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of, "NRC STAFF RESPONSE TO ECfP MOTIn0 DATED DECEMBER 15, 1980," dated January 6, 1980, in t.ie above-captioned proceeding, have been served on the following, by deposit in the United States mail, first class, or, as indicated by ar, asterisk through deposit in the Nuclear Regulatory Comission's internal mail system, this 6th day of January,1980:
- Ivan W. Smith, Esq., Administrative Mr. Steven C. Sholly Judge 304 Souti. Market Street Atomic Safety & Licensing Board Panel Mechanicst1urg, Pennsylvania 17055 U.S. Nuclear Regulatory Commission Washington, ;.C.
20S55 Mr. Thomas Gerusky Bureau of Radiation Protection Dr. Walter H. Jordan, Administrative Dept. of Environmental Resources Judge P.O. Box 2063 881 W. Outer Drive Harrisburg, Pennsylvania 17120 Oak Ridge, Tennessee 37830 i
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Mr. Harvin I. Lewis Dr. Linda W. Little, Administrative 6504 Bradford Terrace Judge Philadelphia, Pennsylvania 19149 5000 Hermitage Drive Raleigh, North Carolina 27612 Metropolitan Edison Company
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ATTN:
J.G. Herbein, Vice President-George F. Trowbridge, Esq.
P.O. Box 542 Shaw, Pittman, Potts & Trowbridge Reading, Pennsylvania 19603~
1800 M Street, N.P.
Washington, D.C.
20006 Ms. Jane Lee R.D. 3; Box 3521 Karin W. Carter, Esq.
Etters, Pennsylvania 17319 505 Executive House P. O. Box 2357 Walter W. Cohen, Consumer Advocate Harrisburg, Pennsylvania 17120 Department of Justice Strawberry Square,14th Floor Honorable Mark Cohen Harrisburg, Pennsylvania 17127 512 D-3 Main Capital Building Harrisburg, Pennsylvania 17120
Thomas J. Germine Deputy Attorney General Division of Law - Room 316,
1100 Raymond Boulevard
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Newark, New Jersey 07102 f
Allen R. Carter, Chairman John Levin, Esq.
Joint Legislative Committee on Energy Pennsylvania Public Utilities Comm.
Post Office Sox 142 Box 32f5 Suite 513 Harrisburg, Pennsylvania 17120 1
Senate Gressette Building Columbia, South Carolina 29202 Jordan D. Cunningham, Esq.
I Fox, Farr and Cunningham Robert Q. Pollard 2320. North 2nd Street 609 Montpelier Street Harrisburg, Pennsylvania 17110 Baltimore, Maryland 21218 Theod: e A. Adler. E:;.
Chauncey Kepford WIDOFF REAGER SELK0WITZ & ADLER Judith H. Johnsrud Post Office Box 1547 Environmental Coalition on Nuclear Power Harrisburg, Pennsylvania 17105 433 Orlando Avenue State College, Pennsylvania 16801 lis. Ellyn R. Weiss Harmon & Weiss Ms. Frieda Berryhill, Chairman 1725 I Street, N.W.
Coalition for Nuclear Power Plant Suite 506 Postponement Washington, D.C.
20006 2610 Grc1 don Drive Wilmingtcn, Delaware 19808 Ms. Marjorie M. Aamodt R.D. #5 Daniel M. Pell, Esq.
Coatesville, Pennsylvania 1920 Attorney for ANGRY 32 South Beaver Street York, Pennsylvania 17401
- Atomic Safety and Licensing Appeal Board
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i U.S. Nuclear Regulatory Commission p 463 Washington, D.C.
20555 Counsel for NRC Staff
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comission Washington, D.C.
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- Secretary U.S. Nuclear Regulatory Commission ATTH: Chief, Docketir.2 & Service Br.
Washington, D.C.
20555 Karen P. Sheldon, Esq.
c/o Harmon & Weiss 1725 I Street, N.W.
Suite 506 Washington, D.C.
20006
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