ML20030C498
| ML20030C498 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 08/21/1981 |
| From: | Silberg J ALLEGHENY ELECTRIC COOPERATIVE, INC., PENNSYLVANIA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8108260167 | |
| Download: ML20030C498 (10) | |
Text
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August 21, 1981 m.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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l BEFORE THE ATOMIC SAFETY AND LICENSING BOARDh IC C d 198l y sc1 A
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Docket Nos. 50-387
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50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC.
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(Susquehanna Steam Electric Station,
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/S APPLICANTS' RESPONSE TO CAND'S MOTION FOR PROTECTIVE ORDER AND Y
APPLICANTS' MOTION TO DISMISS CONTENTION 2 (CHLORINE)
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Intervenor Citizens Against Nuclear Dangers ("CAND")
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has filed a document dated August 16, 1981 entitled " Citizens Against Nuclear Dangers Motion For Protective Order" (" Motion")
in which CAND in essence indicates that it will not comply with the Board's Memorandum and Order of July 27, 1981 and will not respond to the discovery requests on the chlorine portion of Contention 2 served on CAND by Applicants on August 6, 1981.
Under the circumstances surrounding this nost recent default 1/
by CAND of its obligations as a party to this proceeding,-
1/
The long history of defaults by CAND'of its discovery obligations is well documented in previous Board's orders and need not be repeated here.
See, e.g.,the following Board Orders: Memorandum and Order on Scheduling and Discovery Motions, dated August 24, 1979, slip op at 8; Memorandum and Order on Discovery Motions (II), LBP-79-31, 10 NRC 597, 599-602 (1979);
Memorandum and Order Denying CAND Petition and Motions, dated January 4, 1980, slip op. at 1-3; Order, dated January 16, 1980, at 2; Second Prehearing Conference Order, LBP-80-13, 11 NRC 559, 564-566 (1980); Memorandum and Order (Directing CAND and ECNP to Respond to Interrogatories), dated February 27, 1981, slip op.
at 2-4.
8108260167 810821'.
5o) r PDR ADOCK 05000387 9
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' Applicants believe that it is fair and appropriate-2/
to dismiss the chlorine portion of Contention 2 and respectfully move the Board, pursuant to 10 C.F.R.
SS 2.707 and 2.718, to so order.
FACTUAL BACKGROUND The tortuous progress of the chlorine contention since its admission into the proceeding is set forth in the Staff's May 28, 1981 motion for reconsideration of that portion of the March 16, 1981 Memorandum and Order (Ruling on Motions for Summary Disposition of Contentions 2 and 16), LBP-81-8, 13 NRC
, that partially denied Applicants' motion for summary disposition of the chlorine contention, and in the June 9, 1981 response by Applicants supporting the Staff's motion for reconsideration.
At the prehearing conference held on July 22-23, 1981, the Board denied the Sra.fr's notion for reconsideration in the following terms:
CHAIRMAN GLEASON:
The Board has given a great deal of thought to this matter and it finds it is in a very bad situation because of--frankly, it probably would have ruled differently if it had
~2/
CAND's repeated disregard for Board orders, its refusal to provide discovery answers without any justification, and the baseless accusations against the Board and the other parties in its filings (including the August 16, 1981 Motion) clearly justifies this action; indeed, over alyear ago the Board warned CAND that its " contemptuous" behavior thus far fully warranted its dismissal from this proceeding.
Second Prehearing Conference, March 21, 1980, Tr. 659; see also, Second Prehearing Conference Order, supra, 11 NRC at 565.
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been the full Board at the time that that motion for disposition had been before us.
However, a ruling has been made by the Board and we think it would be unfair to the parties to reverse that saying on the basis of just a motic;1 for reconsideration without any-thing more.
But in order to provide a fair opportunity for that, what we would do is--I'll put in an order just so you'll know, unless you have some other comments you want to make.
We will provide an additional period for discovery, a short time with respect to that Contention, and a short period for rasponse on the discovery.
And, on the basis of that, we will rule anew with respect to that whether that Chlorine part survives as a Contention for retrial or not.
It seems to me that that is a correct way of doing it, it is fair to the Intervenors.
... [I] t seems to us that what has happened before is the Board rarely [ sic) permitted a new Contention to come into the proceeding via its response which it should have done as far as--as part of the sua sponte authority rather than the way it did it.
I think it is fair to say the Board does have some concern of its own with respect to the use of Chlorine on this facility, but, I cannot say that it desires to raise this issue on its own at this particular time, or any question in connection with it.
The predicate, if you will, or the foundation, if you will, and the Board's reading of the Rulings--
the prior Board's Ruling, was that they were two things which formed its basis, and that was an allegation, and they were nothing more than allegations by the Intervenor, that a new facility had been planned somewhere 15 miles above the site which would add additional material into the Susquehanna River, I
which would then flow into the intake, which would increase the necessity, or which would add to the necessity, for increased chlorine, which further complicated it.
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And furthermore, there is additional study of environmental rature that was supposed to either lower the standards or call for lowering of the standards, and call for consideration.
And those were accepted without any proof of their authenticit$- or accuracy.
And that is the direction we think the discovery ought to take.
MR. SILBERG:
So the discovery would flow from Staff and App.'.icants to the Invervenors?
CHAIRMAN GLEASON:
Absolutely.
Absolutely.
MR. SILBERG:
And not vice versa?
CHAIRMAN GLEASON:
No.
No, it should be your responsibility on the discovery against the Intervenors responsibility to either ignore or respond to it.
And on the basis of that, you decide to respond or a new motion for summary disposition automatically to be filed with the Board.
And then the Board will rule on it.
That is the only way the Board can approach the resolution of this issue.
[I] t is clear that the Intervenors in opposing the motion for summary disposition relied on information which was not supported by Affidavit.
That can be tested through another motion for discovery and that is the opportunity you are being offered.
We are not changing the Contention as it was discussed by the prior Board and that has been really the substance of your motion for reconsideration to reconsider the Board's decision on that Contention as was defined.
I think that is the only fair way that we can get on it.
We are not in a position, and to be fair to parties, to approve your motion for reconsideration.
We are in a position to offer another opportunity for discovery and that is what we are doing.
Tr. 898, 899-901.
This ruling was embodied in the July 27, 1981 Memorendum and Order (Hearing Date and Prehearing Conference Matters), slip op. at pp. 2-3, in which the Board granted a period
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l Of ten days for Applicants and Staff to file discovery with CAND on the new information on which the summary disposition of the chlorine contention was denied.
The order gave CAND ten days from receipt of the discovery requests to provide responses.
On August 6, 1981, Applicants hand delivered to CAND's representative a set of discovery requests on the chlorine contention covering the matters discussed by the Board at the July 22-23, 1981 prehearing conference.
CAND provided no response to any of the discovery requests; instead, it filed the August 16 Motion.
ARGUMENT The above facts should make it clear that the discovery at issue here is not just for.the purpose of assisting Applicants in their hearing preparation.
In accordance with the Board's express directive, Applicants filed discovery to ascertain l
whether the new allegations made by CAND, on the basis of which summary disposition was partially denied, had any basis.
Chairman Gleason noted that this new information alleged by CAND had been presented without any evidentiary support, and could be tested by means of discovery.
The discovery would give Applicants the opportunity to determine what support, if any, existed for CAND's allegations.
By the same token, CAND would have an opportunity to substantiate its allegations and justify the s:rvival of this contention.
Tr. 898, 900-901.
Thus, the discovery at issue goes i l
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to the heart--and the continued viability--of the chlorine contention.-3/
CAND's alleged reasons for not providing the answers are a familiar litany of complaints:
that Applicants do not need l
the discovery, that the number of interrogatories is excessive, that CAND does not have the time and money to comply, and so on.
l All these have been rejected in numerous occasions by this Board l
l and the Appeal Board and need not be refuted here.
See, g.g.,
the f
Board's Memorandum and Order on Pending Motions, dated May 20, i
1981, slip op. at 25-28.
CAND has refused to comply with the Licensing Board's l
explicit directive that it provide the basis for its unsupported t
allegations, and has thereby implicitly conceded tbs.' the allegations l
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have no basis.
This refusal fully justifies the granting of Applicants!
motion to dismiss the chlorine portion of Contention 2.
~3/
Because of the special circumstances and purposes of this dis-covery, it should not be subject to the Board's former ruling that it would not dismiss contentions on the " technical grounds" of failure to respond to discovery, Memorandum and Order on l
Discovery Motions (II), supra, 10 NRC at 603, 607.
4/
CAND asserts at. p. 2 of its Motion that " Applicants will have l
the relevant information on the contentions, when direct testimony is submitted."
However, CAND served notice at the August 12, 1981 prehearing conference that it will not file direct testimony on the chlorine contention but will conduct its case entirely by cross-examination.
Tr. 938.
Regardless of which of these two statements is true, it seems clear that CAND does not have the information requested and that its allegations lack the basis required for contentions..
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Accordingly, Applicants' motion to dismiss the chlorine portion of Contention 2 should be granted, and CAND's Motion for a Protective Order should be denied.
Dated:
August 21, 1981.
i Respectfully submitted, j
SEAW, PITTMAN, POTTS & TROWBRIDGE b_
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Jay'
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Travieso-Dias /
i Counsel for Applicants 1800 M Street, N. W.
Washington, D. C. 20036 (202) 822-1000 l
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION v' '
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PENNSYLVANIA POWER & LIGHT
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Docket Nos. 50-387
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50-388 ALLEGHENY ELECTRIC COOPERATIVE, )
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(Susquehanna Steam Electric
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Station, Units 1 and 2)
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CERTIFICATE OF SERVICE This is to certify that the foregoing Applicants' Response to CAND'S Motion for Protective Order and Applicants' Motion to Dismiss Contention 2 (Chlorine) was personally served on Thomas J.
Halligan by hand delivery to his residence on August 21, 1981.
Copies were served on the attached Service List by deposit in the United States Mail, First Class, postage prepaid, on August 21, 1981.
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Dated:
August 21, 1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3EFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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PENNSYLVANIA POWER & LIGHT COMPANY
)
)
AND
)
Docket Nos., 50-387
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50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC.
)
)
(Susquehanna Steam Electric Station,
)
Units 1 and 2)
)
SERVICE LIST gretary of the Commission Dr. Judith H.
Johnsrud S. Nuclear Regulatory Commission Co-Director
- shington, D.
C.
20555 Environmental Coalition on Nuclear Power
.inistrative Judge James P.
Gleason 433 Orlando Avenue Gilmoure Drive State College, Pennsylvania 16801 ver Sp' ring, Maryland 20901 Susquehanna Environmental Advocates Glenn O.
3:-ight c/o Gerald Schultz, Esquire mic Safety and Licensing Post Office Box 1560 soard Panel Wilkes-Barre, Pennsylvania 18703 S. Nuclear Regulatory Commission
@hington, D.
C.
20555 Mr. Thomas J.
Halligan, Correspondent The Citizens Against Nuclear Dangers
'.>aul W. Purdom Post Office' Box 5 hGulphHillsRoad Scranton, Pennsylvania 18501
&nor, Pennsylvania 19087 Ms. Colleen Marsh gmic Safety and Licensing Box 558 A, R.
D.,4 4
$ card Panel Mt. Top, Pennsylvania 18707 S. Nuclear Regulatory Commission
- ghington, D.
C.
20555 Jessica H.
Laverty, Esquire Office of the Executive Legal Director keting and Service Section U. S; Nuclear Regua,atory Commission ice of the Secretary S. Nuclear Regulatory Commission Washington, D.
C.
20555
- ihington, D.
C.
20555
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h l er: W..-??1er, Esquire Mr. Thomas M.
Gerusky, Director
- partment of Env:.ronmental Resources Bureau of Radiation Protection
=.Onwealth of Pennsylvania Depar ment of Environmental 5 Executive House Resources ts: Office Box 2357 Commonwealth of Pennsylvania
,rrisburg, Pennsylvania 17120 Post Office Box 2063 Harrisburg, Pennsylvania - 17120 p.e s I.'.
Cunc,In, IV, Esquire fice of the Executive Legal Atomic Safety and Licensing Appeal Director Board Panel S. Nuclear Regulatory Commission U.
S. Nuclear Regulatory Commissio)
.shington, D.
C.
2'0555 Washington, D.
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20555 Witt C.
Smith rector nnsylvania Emergency Management Agency ansportation and Safety Building g
rrisbu g,~ Pennsylvania 17120 e
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