ML20057B512
| ML20057B512 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 04/15/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20049A457 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-053, SECY-A-80-53, NUDOCS 9309220158 | |
| Download: ML20057B512 (51) | |
Text
{{#Wiki_filter:'.. -c UNITED STATES NUCLEAR REGULATORY COMMISSION April 15, 1980 _ WASHINGTON D.C.20555 SECY-A-80-53 CONSENT CALENDAR ITEM ADJUDICATORY ~ For: The Commiselon From: James A. Fitzgerald Assistant General Counsel
Subject:
PROPOSED RESPONSE TO MOTION FILED WITl! THE COMMISSION i' Facility: Susquehanna Steam Electric Station, Units 1 and 2 Pu rpose : To resolve a pending interlocutory motion filed with the Commission. Discussion: The Environmental Coalition on Nuclear Power (ECNP), an intervenor in the Susquehanna operating license proceeding, submitted a series of procedural requests to the Com-mission ( A ttachment 1). ECDP requests ex-pedited consideration on several_ general. .13 .q ~ issues: (1) that the Commissioh order the :. Licensing Board to enterrappropriate pro '_ tective orders to limit staff and applicant discovery and to deny imposition of any sanctions against ECNP for failure to respond to discovery;i/ (2) that the Commission provide advisory views on the scope of and sanctions for discovery; (3) disqualify the entire licensing board for " gross.incom-petence" and reconstitute the Board to include a Commissioner; and (4) investigate alleged improprieties in the conduct of this hearing. The staff and applicant have availed themselves of the opportunity to respond provided by 10 CFR 2.730 (Attach-ments 3 and 4). 1/ Information in this record was dt!cted in cecordance with the Treedom of Inictmation Y Act, exemptiene F01A ___f A M d-
Contact:
Mark E. Chopko, GC f x_ e a a - - r,.3 I 9309220158 930428 it - PDR FOIA t? GILINSK93-436 PDR Cd
m e 2 In its opposition to the ECNP motion, the staf f urges that the motion is improperly filed before the Commission and that it should be denied. The staff argues that no basis exists for circumventing the NRC regulation that states that " [n]o inter-locutory appeal may be taken to the Com-mission from a ruling of the presiding officer." 10 CFR 2.730(f). As the Com-mission's delegate, the Appeal Board is the proper forum within which to entertain the ECUP motion, and it may grant all appropriate relief. 10 CFR 2.785, 2.704, 2.788. That Board may also consider whether a basis has been presented for discretionary interlocu-tory review. Puget Sound Power and Light Co. (Skagit nuclear Power Project, Units 1 and 2), ALAB-572, 10 NRC 693, 695 n.5 (1979). See Staff Response at 6, 7. The applicant adopts the staf f's Icgal position and sets out in greater detail the factual background of the current dispute. [h5 believe that sb -l L
e 3 l i. J t i Recommendation: } c v ames A. Fitzgerald Assistant General Counsel Attachments: 1. Request, 3/17/80, ECNP to Comm. 2. Board Meporandum Opinion (3/27/80) g _ y y __ _._ 3. Staff _ Reply _ _ ..-- 2 a _1.~'qgy;.;m ~.I;? " ~__ ?!I.L.T ~ 4. Applicint's Reply ' - ~ ~ _ 5. Proposed Order Commissioners' coments or consent should be provided directly to the Office of the Secretary by c.o.b. Tuesday, April 29, 1980., Comission Staff Office coments, if any, should be submitted to the Comissioners NLT April 22, 1980, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and coment, the Comissioners and the Secretariat should be apprised of when comments may be expected. This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of May 5, 1980. please refer to the appropriate Weekly Comission Schedule, when published, for a specific date and time. DISTRIBUTION Comissioners Comission Staff Offices Secretariat
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h [ EN\\(IRONMENTAL COALITION ON NUCLEAR POWER ] Mr. Georps Soomeme-R.D. et, Peach Bottom, Pe. 17563 117 548 4836 Dr. Judith Johnsrud-4' A3 Oriendo Avenue. State College, Ps.16801 814-237M - p /c, cecxETEo UNITED STATES OF AMERI*.A- ] NUCLEAR REGULATORY COMMISSION 1:2:J.; g I fME.Q lD,E A O!5::t!C2 STr.' To the NRC Comissioners C C* y@@mi'S["U i 1 >the Matter of ) ~ PENNSYLVANIA P0' DER & LIGHT COMPANY ) Docket 50-387-88 ) j and ALLEGHENi' ELECTRIC COOPEPATIVE. INC. ) (Susquehanna Steam Electric Station) Units 1 and 2) { REQUEST TO THE NRC COMMISSIONERS FOR EXPEDITED CONSIDERATION OF ACTIONS OF AN ATOMIC SAFETY AND LICENSING BOARD AND OTHER MATTERS ~ Pursuant to Chapter 1, Section 1 of the Atomic Energy Act of 1954, as amended, I and absent any provision of 10 CFR 2, NRC Rules of Practice, that governs this e.rergency communication, the Environmental Coali_ tion on Nuclear Power. (ECNP) Intervenors submit the following requests for-irrnediate-consideration and action by the Comissioners...These requests relate-to. procedural aspects of the above-captioned matter. The ECNP Intervenors' contentions in this proceeding are not addressed herein, in accordance with the provisions of 10 CFR 2.780 concerning el parte comunications. The procedural matter in which Petitioners seek immediate relief con- ~ cerns the limits of discovery.and the Board's decision-making process as it has been applied to discovery in this proceeding. When, as here, the parties have grossly unequal resources, we must ask the question: Are the more t I ECNP can find, in particular, no wording in 10 CFR 2.780 that vould appear to pmhibit this request as being an ex parte communication. Copies of this Request are being served for the record on all parties to the , proceeding. Nor is this emergency request an interlocutory appeal from a particular ruling of a presiding officer in the context of 10 CFR 2.730(f). h
2 powerful, well-financed parties to be allowed and abetted,by the Board to overwhelm another party by the imposition of excessively large nunbers of discovery requests, arbitrary rejections of good faith responses, and other continuing demands upon an " underdog" party causing paralysis, exhaustion, and total defeat of the good faith efforts of citizen participants to build a meaningful record on issues of public health and safety and environmental effects? In this instance, Applicants served some 2700 interrogatories' upon these Intervenors. Intervenors were denied a protective order by the Board, whereas the Applicant was granted an order protecting it from responding to the bulk of Intervenors' few discovery requests (Board Memo and Order, August 24,1979). There have followed months of procedural motions requiring detailed written responses, Board directives that have totally ignored the Intervenors' requests for clarifications as well as for reasonable protection and relief, delays occasioned by NRC Staff and Applicant failures to meet schedules of their devising, and acquiescence by the Board to virtually every dernand.by Applicant and Staff and denial of virtually every request by the various intervenors. Intervenors have been frustrated in their legitimate rodest discovery requests. Deadlines too short to perinit adequate responses have been enforced for intervenors, whereas Staff and Applicant's delays are accepted without question by the Board. Slowly and surely effective public-interest participation is being bled to death by proceduralmaneuvers of the Applicant, Staff, and Board. Intervenors now are called upon to argue why they should not be prohibited both from presenting direct evidence and froni cross-examination of the witnesses that other parties will be allowed to present on the Intervenors' ' contentions. 2 The sole reason for these punitive " sanctions" which the Applicant and the Staff have asked the Board to approve is that the Applicant and the Staff have arbitrarily rejected as " inadequate" or " deficient" the ~ Intervenors' timely good faith responses to the excessively large nunbers of interrogatories served by the Applicant and those of the Staff. 2Board breranda on prehearing Conference, dated February 22 and 26,1980.
~ Petitioner's Recuest:
- 1. Petitioner ECNP asks the NRC Commissioners to direct their Atomic Safety f
and Licensing Board in the captioned proceeding to omit from the scheduled March 20,1980, Prehearing Conference or'ai argument on Applicant's motions to estrict participation of Susquehanna Environmental Advocates (SEA) and f ECNP and to dismiss Citizens Against Nuclear Dangers -(CAND).
- 2. Petitioner ECNP asks the Comissioners to deny, and/or direct the
~ Board to deny, without additional filings, the Applicant!s Motions to restrict SEA and ECNP participation in, and to dismiss CAND from,this proceeding and Staff's recomendation to restrict ECNP's participation.
- 3. ECNP asks the Corm 11ssioners to direct the Board to certify to the Cv=iissioners the four questions asked by.ECNP in its N6vember 19, 1979, 4
filing,3 a request that Board denied. (A) Does the NRC Staff or the Applicant have the right to create excessive demands for discovery (under Part 2.740) of an In tervenor of such a magnitude that the Intervenor is rendered incapable of further participation in that or any other NRC Proceeding? (B) Is it an appropriate remedy..for this Licensing. Board to deny the Intervenors in this proceeding the right to present - witnesses simply because these Intervenors have been inundated and paralyzed by-the excessive, unreasonable, meritless, and ur. justifiable demands of the NRC Staff and Applicant? (C) Should not the entirt Licensing Board in this proceeding be ~~ disbanded for gross incompetence, for its continuing refusal to address the objections by. the various intervenors to oppressive discovery demands, and for the continuing refusal 3See "Intervenors' Response to Licensing Board Percorandum and Order of October 30, 1979," pp. 11-13.
- Board " Order Denying Requests of ECNP " December,1979, p. 2.
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- j of this Licensing Board to even attempt to conduct k fair hearing under Part 2.718 of the Comission's mles?
(D) As a result of the abuse of the purpose of discovery by j the NRC Staff and Applicant in this proceeding, which abuse has been not only condoned, but also aided and abetted by this Licensing Board, should not this Licensing Board be reconstituted so as to include one of the NRC Comissioners' who, in the past, has expressed concern about the conduct and quality of NRC licensing proceedings? 4. These Intervenors--belsaguered in the extrerte by their treatment at the hands of this Applicant, the Suspended Licensee in THI-l and II, the NRC Staff and Licensing Boards, in vigorous protest against the chain of events described in the Background section below, and in order to assist the Comission in avoiding the cetting of a procedural precedent that will destroy altogether any remaining pretext of fairness to the public in the NRC licensing process--respectfully.ask the Comissioners to respond them-selves to these questions, with or without certification froo the Board.5 5. In view of recent press reports of studies by this Applicant that indicated extensive further delay in completion of these reactors and large additional construction expenses that :r.ay require additional review of the plant,6 the ECNP Intervenors ask the Comissioners to take the unusual step of ordering a halt in this licensing proceeding pending an intensive review by the Commissioners,with independent consultants,of the abuses of discovery that are being tested by its Staff as well as the Applicant in this proceeding, and an investigation of the extent to which such procedural abuses are occurring in other NRC proceedings. Such a review is a vital part of the Cor:rnissioners' overall procedural review and reorganization 5 Authority for this request for Direction by the Commissioners to Certify resides in 10 CFR 2.718(i). Petitioners also cite 10 CFR 2.704(c) with respect to disqualification. The [Harrisburg) Patriot," Berwick Area Nuclear Plant Changes Mulled," February 22,1983; " Nuclear Power: ftre Delays Feared in Ben <ick N-Plant Start-Up," March 10, 1980.
i y - growing out of recommendations of the Kemeny and Rogovin Reports. 6. Petitioner asks the Comission to clarify what constitutes " undue burden" of discovery for citizen intervenors, as the' tem is used i in 10 CFR 2.740(c) on protective orders, and what.is the total impact of lange numbers of discovery demands, and of vague, unfocused open-ended } interrogatories upon an impoverished intervenor's ability to respond adequately.0 7. ECNP Petitioner asks that the Cocrnission direct the Board to suspend all matters relating to discovery pending clear definition by the l Comission of what constitutes an " acceptable" or " adequate" response to interrocatories beyond and more specific than those guidelines provided i by the Board, and complied with by these Intervenors. [ 8. ECNP Petitioner asks the Comission to suspend entirely and in-definitely this license proceeding for Susquehanna 1 and 2 until such time as the Applicant has completed all proposed construction changes and the l i NRC Staff has completed its review thereof and has completed its required documnts (e.g. SER), with sufficient time for meaningful perusal by the Inte rvenors. 9. When, and if, this proceeding is to be resumed, the ECNP Intervenors ask that any future Board include a Comis,sioner as an active 1y particip'atiing~~ ~ ~ ~ ~ member to assure a fair proceeding--another request made early in this proceeding with certification of the request denied by the Board. i s L i 7As described by Comissioner Bradford, Seventh Annual National Engineer Week Energy Conference, Knoxville, Tennessee, February 21, 1980, p. 2-3 0 For exa::iple, it would take an autobiography to answer questions 'that. require an intervenor to identify all documents and individualit consulted in the forrulation of the assumptions behind the basis of a contention. r I
.e- ,=
Background:
The Operating License proceeding for Susquehanna I and 2 was initiated l by the Applicant late in the summer of 1978, prior to the accident at Three Mlle Island, Unit 2. ECNP, and 'te other parties, filed timely petitions f to intervene, formulated contenti.. 3 and argued their merits for acceptance in an initial prehearing conference in January,1979. The Board's Special I Prehearing Conference Order of March 6,1979, consolidated and reworded various contentions; its issuance set forth the Discovery schedule. On March 28, i 1979, the accident at Three Mile Island, Unit 2 (TNI), began and is still in prog res s. The ECNP representatives are the only public-interest litigants in i that reactor's still-incomplete Operating License proceeding, as well as par-l ticipants in three other THI-related NRC proceedings initiated since the accident began. The major portion of the ECNP Intervenors' Discovery requests to the i NRC Staff were never honored. Staff Counsel James M. Cutchin IV chose to inform Intervenors that NRC policy of not funding public-interest intervenors precluded supplying documents to those parties. The Applicant was granted a protective order by the Board, thereby depriving these Intervenors of a substantial portion of their moderate Discovery reouests upon the Applicant (See NRC Staff letter to Dr. Johnsrud, June 27, 1979, and Board Memorandurn and Order on Scheduling and Discovery Notions, August 24,1979). The ECNP Intervenors, by contrast, were served fewer than 100 Interroga-tories from the Staff but fully 2700 by the Applicant upon ECNP's mere dozen l con ten tions. The ECNP Intervenors timely and in good faith responded to the Staff's questions despite Staff's refusal to supply the doctrients reouested and needed in order to answer more fully. These Intervenors sought a protective order from the Board under 10 CFR 2.740(c) on the legitimate grounds that the number of questions served by the Applicant was excessively burdensome, oppressive, and unduly expensive for unfunded citizens, who represent the public's interest, who lack staff, research facilities, even secretarial help. Furthemore, the stringent time limits for response to this burdensome number of requests rendered full compliance literally impossible, particularly in i view of the voluntary nature of the participation of the ECNP Intervenors' representatives, who have many additional demands and obligations upon their [ time wholly unrelated to Susquehanna. Since March 28, 1979, foremst among these additional obligations has been response to the continuing needs of our organization's members and the citizens of Pennsylvania who have beeri e...-
adversely affected by the ongoing THI accident. The ECNP Intervenors have followed the Commission's prescribed methods of petitioning for relief. These efforts have been to no avail. Intervenors' requests for protective orders relative to all interrogatories and subsequently to individual interrogatories have been entirely denied. Requested extensions of time adequate to answer this burdensome number of interrogatories have been denied. The extension finally given by the Board was for only approxi-mately one month. 9 The Board restricted temporarily the required responses to only those numerous interrogatories pertaining to environmental contentions but in no way reduced the number of Applicant interrogatories relating to ECNP's own contentions. Postponement of Intervenors' responses to safety contentions rested on the inability of.the NRC Staff, in the post-TMI period, to complete the Safety Evaluation Peport'according to the schedule set by Staff and Applicant. It should be noted here that ECNP Intervenors, by contrast with this enomous Discovery burden placed upon them, asked of the NRC 5taff a mere handful of questions, lacking the time to prepare properly focused interrogatorics of either Staff or Applicant as a direct result of the extra-ordinary discovery demands of the NRC Staff and the Applicant. Since September, ECNP's representatives' time has been almost entirely consumed, again and again, by repeated required responses to the Board, the Staff, and Applicant in' Susquehanna, 'very nearly'tb the ExElusion of ail ~~ ~~~ other obligations--including our ongoing critical participation in the still'- incomplete licensing of TMI-2 (appellate review of aircraft crash and radon issues raised and carried forward by Dr. Kepford) as well as the THI-1 Pestart and NRC Generic Polemaking proceedings to reassess confidence in the availability of radioactive waste disposal and spent fuel storage--issues which are now critical at TMI-2. Having exhausted all of the appeal remedies provided for by the NRC's Rules of Practice, the ECNP Intervenors did, in fact, comply fully with the g Although these Intervenors did not plead illness or request additional response time because of illness (except added time to. file a notarized affidavit to accompany discovery responses), thh representative believes the record should reflect that ECNP met the discovery deadline despite my repeated debilitating bouts of flu this winter. t
-g- .4 Board's October 30 and December 6,1979, Orders. On January 18, 1980 ECNP filed timely responses within our limited abilities to research anIanswer the Appli-cant's interrogatories. By a motion dated February 4,1980, the Applicant seeks to prohibit ECNP from participating in litigation of its contentions because the Applicant is dissatisfied with ECNP's responses to its extraor-dinarily large ntenber of interrogatories. The Applicant here seeks to shift the entire burden of providing infomation to the Intervenors. (even asking Intervenors to identify the Applicant's own facilities), while having pro-vided virtually no information to the Intervenors throughout this protracted discovery period. Petitioners note that 10 CFR 2.732 unambiguously states that "the applicant or proponent of an order has the burden of proof." With no basis in legal citations, the Applicant summarily rejects most of the ECNP Intervenors' responses and coves the Board to compel ECNP to reanswer those few responses the Applicant deems acceptable. Rather than denying Applicant's motion outright, this Board has scheduled oral argument on the Applicant's motion, with Staff's partial opposition and partial support. However, the Board's Femorandum of February 26, 1980, appears to shift the purpose of oral argument. Instead of consideration of the adequacy of Intervenors' responses to discovery such that Intervenors will be permitted to litigate their own contentions, the Board now requires consideration of whether these parties now oresumed to have defaulted should be given lesser participational rights on their issues than are parties which did not raise the issues in question. Thus, there is no Board decision stating that these Intervenors have defaulted, which ECNP certainly has not. by virtue of their tirely and good faith responses of January 18, 1980, in which ECNP followed the guidelines provided by the Board in its August 24th and October 30th memoranda and orde;; on discovery. Yet Intervenors are now ordered to argue that they have def aulted but should be allowed to litigate their contentions anyway on grounds related to Prairie Island decisions from 1974-75, copies of which have not even been provided to the parties. From September through December, one of ECNP's legal Representatives estimates that the Intervenors had less than one full day available to devote solely to actual preparation for presentation of ECNP's cases in the Susquehanna, THI-l Restart, and TMI-2 proceedings. The time was eaten up with mandatory
responses relating to Discovery matters precipitated by the Susouehanna Applicant's unreasonable number of Interrogatories, Staff's refusals to respond to Discovery requests, and the Board's decision to withhold from ECNP a protective order that would have prevented this clear fom of harrassment of intervenors by procedural maneuver. In short, literally hundreds of hours have been consumed in fruitless paperwork, hours diverted from the deadly serious purpose with which ECNP and all other intervenors entered this proceeding. We ask the Comissioners to note especially the explanations of intervenor frustration contained in ECNP Intervenors' November 19, 1979, Response to Licensing Board Memorandum and Order of October 30, 1979. U Note also that this Board then denies altogether ECNP's November 19, 1979 requests for (1) a protective order; (2) clarification of which NRC Staff Discovery interrogatories the Board was requiring ECNP to answer for yet a third time; and (3) certification of four questions to the Comissioners. The result of these events has been a slow but certain procedural crushing and suffocation of these public-interest intervenors under an intolerable burden of hundredsof questions on each of the few issues ECNP has sought to liticate for the protection of its members and the public who will be affected by operation 6f Susquehantia. ~ Rath~e'r thaw assisting -~ -a, .= = :. = - - = Intervenors by provistor af documents necessary for preparation of ECNP's case, the NRC Staff has not only shouldered no discernible burden whatso-ever in exploring these contentions but also has refused to comply with Discovery, sending belatedly only a token few documents described as spare copies INRC Staff letter, November 15,1979). 10lntervenors who v61unteer their efforts to make a nuclear reactor less hazardous by their participation in adninistrative agency regulatory pro-ceedings do not have the luxury of a mere 40-hour work week. In fact. 70 and 80 hour work weeks are normal. Intervenors invite the Comission to use this docunent as a prime example of the manner in which the NRC's practices affect public-interest participants, as a Commissioner so vividly described in "The Nuclear Option: Did It Jump or Was It Pushed?" NARUC Annual Regulatory Studies Program, East Lansing, Michigan., August 2,1979, pp. 3-4. s-
Rather than showing a concern for resolving the issues, raised by Intervenors, the Applicant is evidently attempting to invent new procedural Intervenor traps to prevent full adversarial investigation of these issues in controversy. Rather than protecting due process of uncounseled citizen intervenors, the Board has thus far used its authority in ways that further the inability of the Intervenors to get on with preparation of their cases, of which the scheduling of March 20th oral argument is only the latest example. It is difficult for these Intervenors to know how they could have been much more heavily burdened and impeded by the Applicant and NRC licensing procedures so as to prevent ECNP's effective preparation for presentation of the public-interest case on their contentions of significance to the public health and safety. The very fact that the same Legal Repre-sentattie,. in the TMI-2 operating license proceeding, had raised and carried forward both safety and environmental issues that have not yet 'been resolvedby the Commission or the Court is clear evidence that these Intervenors especially have r.ade, and ought to be encouraged by NRC and assisted to further make, positive contributions to the NRC's licensing of nuclear re acto rs. They should not have every procedural impediment to full and effective participation placed in their way by other parties and officers in the proceeding. 1 This background description of the history of discovery in this pro-ceeding is reant to clarify the facts leading to the present situation about which these Intervenors have here petitioned the Commissioners for relie f. There was no consideration given to 10 CFR 2.703(b) with regard to the scheduling of March 20th oral argument. ECNP Intervenors' representatives both have long-standing obligations out of state on thit date; they were not consulted about the date, as has been the courteous practice of Boards in other proceedings to wtiich ECNP has been a party.
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Discussion : It appears that the " misconduct" for which these ECNP Intervenors my now be subject to crippling " sanctions" is in reality only two in nu-be r: (1) ECNP, essentially without funds, was unable to met the demands imposed by the Applicant, Staff and Board in the Susquehanna proceeding; and (2) ECNP has shown in' the,THI-2 Operating License proceeding how entirely inadequate,indeed farcical, the agency's licensing process really is. The purpose of the punitive action proposed by Applicant and being given serious enough consideration by the Board to warrant its calling a special prehearing conference appears to be nothing short of rendering impotent Intervenors who have proven their competence at revealing the incompetence of Staff and Licensing Boards in other NRC proceedings. The President's Co mission on the Accident at Three Mile Island (Kemeny Commission) concludes, at page 56: With its present organization, staff, and attitudes, the-NRC is unable to fulfill its responsibility for providing an acceptable level, of. safety for nuclear power plants. The NRC here is certainly not impr' ving its abilitylo' provide an o ~ ecceptable level of safety by preventing legitimate public-interest inter-venors of demonstrated competence from fully engaging in the Commission's adversarial licensing process. Nor do the Staff or' the Board evidence changes for the better in " organization, staff, and attitudes" by the i techniques employed in this proceeding to checkmate the Intervenors. Similarly, the NRC-comissioned Special Inquiry Group (Rogovin Report) on the TMI accident has observed ...unless fundamental changes...are made in the way commercial reactors are built, operated, and regulated in this country, similar accidents--perhaps with the potentially serious con-sequences to public health and safety that*were only narrowly averted at Three Mile Island--are likely to. recur. x.(emphasis in the original) i ...It is,lest we forget, an inherently dangerous activity that Congress has authorized the NRC to license. (p. 92) m. e :,. : a
^ 12-I Over the years the nuclear industry and its regulators have identified what have been considered to be serious safety problems and recomendations whose significance has been underscored by ringing staterents to the effect that unless such problems are resolved "promptly," a license should be revoked or the industry shut down. Many ' f these problems are still outstanding. While o we do not undertake to set out deadlines, we do believe that the congressional oversight comittees should hold the NRC accountable with respect to such issues. (p. 93) In our view, if a firm commitment is not made promptly to bring about these changes, we will be exposing the public to a needlessly high level of risk. (p. 92) We have found that.tbere is really no existing organization within the agency that has either the responsibility for or the capability of monitoring 'the effectiveness of the regulatory staff and of making recornendations for actions needed to establish and r.aintain a safety review process of the requisite level of quality. It is a paradox that while the agency has long insisted on quality assurance programs for industry entities associated with nuclear powerplants, it has never imposed a similar requirement for its i own regulatory staff or for the safety review and inspection p'rocess. i With the vast amount of unsupervised discretion that exists in the process, it is not surprising that senior managers readily accept the status quo and that few, if any, have spoken out and demanded agencywide organizational reforms. The romentum for that must come f rom outside of the staff.. Similarly, in other fields project management on a system life cycle basis has been a way of life in directing development, testing, and operation of complex vehicles, facilities, and equip-cent. Yet relatively little of this systems management philosophy exists at the NRC. Instead, the NRC's role has been oriented more toward prescriptive licensing of a utility--putting a " Good Housekeeping Seal of Approval" on a proposed product--as distinguished from regulation which must include careful ronitoring and control of hazards during the entire life of a facility. (SIG Reoort, p.118). Petitioners state that corrective actions, as are vioorously recomnended by both the Xereny and Rogovin studies, must begin with those in charge, namely the Comissioners. In the past, it has been the Licensing and Appeal Boards that have implemented Commission policies--the policies which have gotten us into the regulatory situation so strongly condemned above. There has been no evidence post-TMI that the Licensing Board in this proceeding has initiated the slightest change toward greater safety or any other reform to lessen that " needlessly high level of risk."' Penalizing public-spirited, volunteer citizen intervenors for not having the comparatively infinite resources of the Applicant, Staff and Board only confirms the findings of the President's Comission and the NRC Special Inquiry Group. Silencing critics via procedural harrassment will not improve the quality of NRC licensing proceedings nor will it improve public safety.
In the fifty weeks since the TMI accident began, the Board in the Susquehanna proceeding has shown no capacity to undertake the reforms necessary for compliance with the Atomic Energy Act's mandate to protect the public health and safety. It is for this reason that these Petitioners have taken this apoeal directly to those who have the ultimate decision-making authority. Herein lies an unparalleled opportunity for affini.ative action, in the public interest by the Commissioners. In the 1971 Calvert Cliffs deci'sion, the Court has plainly said: It is, moreover, unrealistic to assume that there will always be an intervenor with the information, energy and money required to challenge a staff recormendation'which ignores environmental costs. NEPA establishes environmental protection as an integral part of the Atomic Energy [now Nuclear Regulatory] Commission's basic mandate. The primary responsibility for fulfilling that mandate lies with the Commiss ion. Its responsibility is not simply to sit back, like an umpire, and resolve adversary contentions at the hearing stage. Rather, it must itself take the initiative of considering environmental values at every distinctive and comprehensive stage of the process beyond the staff's evaluation and recommendation. Furthe rro rt, the accompanying footnote states: In recent years, the courts have becore increasingly strict in requiring that federal agencies live up' to their mandates to consider.the public interest._ They.have become increasingly impatient with agencies which attempt to avoid or dilute their~ statutorily imposed role as protectors of public interest values beyond the narrow concerns of industries being regulated. (note 21) And in York Committee for a safe Environment,1975, the Court states: We note, however, that it would be unrealistic to expect public interest litigants to Onderwrite the expense of mounting the kind of preparation and presentation of evidence that is ordinarily required in this type of case. (note 13) The words of the Court are clear: the obligation to conduct full and fair proceedings lies squarely with the Cormission. Public-inte rest litigants cannot be expected by the. agency to have the capabilities of the rore favored parties, but neither has the agency the authority to penalize them for not having those capabilities by Board rulings that effectively exclude their active, meaningful participation in the Commission's adversarial proceedings.
~ '. 4 m ~ Thus, rephrased, the questions posed here to these Comissioners are: (1) Does any party to a licensing proceeding have the. ] unlimited right to arbitrarily demand the total, complete dedication of all of the resources in time, energy, and j personnel of a second party, even to the point of denying the second party the opportunity to prepare and present its own case? l (2) Do the Administrative Procedures Act of 1946, as amended, i the IfatYo$ab"EnYiroSmentaNoli*c'y Ec*tY1969, as amended, I and judicial decisions contain any provisions authorizing j the proponent of an order in a licensing proceeding to l totally and. completely consume the resources in time, man-power, and energy of an intervenor in the proceeding for the purpose of preventing the effective participation of that j intervenor in that proceeding? (3) Do the above laws create a hierarchy of " rights" in a licensing proceeding which permit one party to dictate the j extent of participation of another party in the pmceeding? 1 (4) If the Applicant were to prevail in this motion, would not the precedent set allow any well-furrded g, arty to totally j thwart any intervenor, simply by: l (a) asking a large enough number of interrogatories; (b) declaring the answers are inadequate; l 1 (c) demanding re-answers, until: j (d) the Intervenor capitulates, since the intervenor l has no defenses? Here, the Applicant proposes to bar ECNP from presenting evidence because we lacked the resources to meet some wholly unspecified standard j set up, but never defined, cost facto by the proponent of the licensing of Susquehanna. There is not a single legal citation ip the Apolicant's motion for a very good reason: there is no legal justification for prohibiting the ECNP and other Intervenors from litigation of their contentions. c i
4 A Board ruling that favored Applicant's Motion to prohibit litigation by these Intervenors would turn Calvert Cliffs, York Committee for a Safe Environment, the Atomic Energy Act, NEPA, and the Administrative Procedures Act on their collective heads. The Fbtion should be denied. The Commission should so direct its Board. Beyond denial of this Applicant's Motion, the Coar.ission has an ~ obligation through its Staff and Licensing Board to make whole the par-ticipation in this proceeding of these Intervenors whose litigation preparational opportunities have been effectively foreclosed during these many months of procedural wranglings. Since the Board's August 24, 1979, Memorandum and Order on Discovery and Scheduling, these ECNP Intervenors have been deprived of necessary discovery materials and research time for their case. The Commissioners are therefore respectfully asked to direct their Board in this proceeding to grant these Intervenors and others similarly affected a full six months of preparation time plus discovery with no other obligations, such time to cormence following whatever period of suspension of these proceedir.gs tne Comission may deem appropriate. One last observation: this emergency connunication is core repetitive, less clear, less elegantly composed and legally incisive than Petitioners wanted to file. Any deficiencies herein are a consequence of those very shortages and constraints under which we public-interest intervenors must labor. Therefore, Petitioner also requests the Commissioners to bear those shortcomings in mind in their consideration of this request for emergency action. Paspectfully submitted, /M e. /VA Dr. Judith H. Johnsrud Co-Di re ctor i Enyironmntal Coalition i on Nurlear Power 433 Orlando Avenue State Collece, Pa. 16801 4 Dated this /v ' day of March, 1980. b .i y }. j'1N} 1 -t ' f'- ~ ..jTf2 r s r-7,. - $,. h* _..,.."..'.n'} j & o =. ~;
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.~ O 4 CERTIFICATE OF SERVICE I certify that copies of REQUEST TO THE NRC COMISSIONERS FOR EXPEDITED j CONSIDEPATION OF ACTIONS OF A't AT0!1IC. SAFETY AND LICENSING BOARD AND OTHER PATTERS have been served on the following parties by deposit in the U.S. Mail, first class, postage paid, this 15th day of March,1980. j j'ON /J. Yvd Judith H. Johnsrud Co-Director, ECNP Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Cec =issics Washington, D. C. 20555 Charles Sechhoefer, Esquire Jay Silberg, Esquire Chair. an, AS'.3 Panel U.S. Nuclear Regulatory C. asics Shaw, rittnan, Fotts, and hovbridge Vashir.gton, D.C. 20555 1800 H Street Nw Washington, D.C. 20o36 Mr. Glens O. Bright Gerald Schults, :: squire ASLB Panel Susquehanna :.hviror.= ental Advocatu U.S. Nuclear Eeg 14 tory Co= ission Vashir.cton, D.C. 4555 Soo South Fiver Street Vilkes-Barre, Pa.16/Oa Dr. Uscar 8. Paris e, Mrs. Irene Ler.anovic:, Chai perses ASLB c'anel U.S. !!uclear Regulatory Cc==issica Citi:ets Against U clear Lange P.O. Scx 377 Yashington, D. C. 20555 R.D.1 At<c:ic Safety and Licensing Servick, Pa. 16603 Soard Panel F.s. Colleen Marsh U.S. Nucler.r Regulatory Cc=ission 558 A, R.D. Eh Vastington, D.C. 20555 Mountain Top, Pa., 18707 Ata=ic Safety and Licensir.g Mr. N::as M. Germsky, Director Appeal Board Panel hreau of Radiation Protectics U.S. Nuclear Regulatory Cc-- 4 ssion Department of Enviro =estal P.ucereu Washir.gton, D. C. z0555 Cc=onwealth of Fannsylvasia, i P.O. Scz 2063 Ja=es M. Cutchin, IV, Esquire Earrishcrg, Pa. 17120 i Office of the Executive Legal Director U.S. Nucle e Regulatory C a ssion V M -ton, D.C. '4555 e
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9 I UNITED STATES OF AMERICA r NUCLEAR REGULATORY COMMISSION /f p po q UstmC l ATOMIC' SAFETY AND LICENSING BOARD $ MAR 271980 7, CElik I Charles Bechhoefer, Chairman '" cr Dr. Oscar H. Paris Glenn O. Bright 8-4 q In the Matter of PENNSYLVANIA POWER & LIGHT COMPANY Docket Nos. 50-387 and 50-388-ALLEGHENY ELECTRIC COOPERATIVE, INC. (Susquehanna Steam Electric Station, ) l Units 1 and 2) ) MEMORANDUM (March 27, 1980) l At the prehearing conference on March 20-21, 1980, the Board denied the Applicants' motions. against. ECNP:.and, SEA, _with the understanding that ECNP and SEA would supplement their. answers to the Applicants' and Staff's ' interrogatories by May 1,1980 (Tr. 552-53, 585). We indicated that we would delineate the areas in j which further answers were warranted. We do so here. i i 1. With respect to an assessment of releases of Raden-222, within the meaning of Contention lA, we stated that, inasmuch as the Applicants had not furnished any analysis of Radon releases other than an adoption of the figures in Table S-3 (see ER, 55.9), the answers to interrogatories on this subjec.t previously furnished 6
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Staff's assessment of Radon releases, as included in the DES at 1 j
t $4.5.5 (pp. 4-25 through 4-28), has yet been supplied by either ECNP or SEA (Tr. 510-511). Consistent with the supplementation requirements of 10 CFR 52.740(e), ECNP and SEA (to the extent they are able to do so) must answer the Applicants' interrogatories 1A-1 through 1A-5 and the Staff's interrogatories S-1.1 through S-1.11, using the DES assessment as a basis for answers. If . particularized information has not been developed, at least a generalized basis for the contention should be provided (Tr. 513). 2. In responding to questions on Contention 1B, ECNP has identified Technetium-99 as an isotope the health effects of which it believes have not been adequately assessed. Because Table S-3 of 10 CFR 551.20 has been amended to delete any quantity figure for Tc-99 releases, we indicated that Contention 1 should be amended to transfer Tc-99 from part 1B (challenge to health effects of releases) to part lA (challenge both to health effects and quantities released). Neither the Applicants nor Staff have provided any assessment of the releases of Tc-99; until an assess-ment is provided, ECNP and SEA need not indicate why the assess-ments of Tc-99 releases are erroneous. (If they have developed information on Tc-99, they should of course identify it, but a failure at this time to have developed such information will not be considered by us as evidence of default.) Presumably the FES will include an assessment of the quantities and health effects of Tc-99 releases. If so, discovery on that subject could then
i proceed on the schedule outlined in our March 6, 1979 Prehearing Conference Order (LBP-79-6, 9 NRC 291, 327 (schedule items 6 and 7). l 3. If ECNP or SEA have as of May 1,1980 identified. any isotopes other than Rn-222 or Tc-99 the health effects of which they wish to have considered, they should identify those isotopes and answer the Applicants' hiterrogatories 1B-1 through 1B-4 and the Staff's interrogatories S-1.12 through S-1.15. (To the extent that ECRP's answers to the Staff's interrogatories S-1.ll j through S-1.14, including the 50-year limitation, remain valid, ECNP may so state.) 4. Certain of ECNP's answers to the Applicants' interrog-atories on Contentio.n 2 were based on an incorrect assumption as to the relevance of Table S-3 to this contention (Tr. 525-26). I ECNP should answer Applicants' interrogatory 2-1 using 55.2 of the Environmental Report as the source of information to be analyzed (Tr. 530-31). (ECNP may, of course, identify any errors which it believes are present in 55.2.) ECNP should also update, if possible, its answers to Laterrogatories 2-2 (particularly with respect to the magnitude of health effects) and 2-9. ECNP need j not answer the Staff's Laterrogatories on Contention 2, inasmuch as they are 1Lnited to the health effects of releases not included in ECNP's original contention and ECNP has indicated it has no interest in litigating the health effects of Cs-137, Co-60, and ~;
chlorine. 5. In response to Applicants' interrogatory 3-1, ECNP shou'ld indicate whether it accepts the feel requirements stated in $5.7.3.1 of the ER (copies of which the Board provided to the parties at the conference) (Tr. 531-533). If it accepts that i amount, no further answer is required. In response to interrog-story 3-2, ECNP, if it wishes to rely on the results of the NURE i program, should ' indicate whether it will accept those results. ECNP should also provide more specifity in its response to interrogatory 3-3, if it can do so (see Tr. 547). In response to interrogatory 3-6, ECNP should provide the missing element of its formula, by indicating that it will accept the number for ~ a particular date (any date is adequate) as the starting point for calculations. For interrogatory 3-7, ECNP need not perform extensive research but might wish to define a generalized basis for its claim of higher fuel prices. To the extent it has developed particularized calculations, it should furnish such information. l 6. With respect to Contention 4, ECNP's answer to Appli-cants' interrogatory 4B-1 appears adequate if one takes into account ECNP's February 11, 1980 response to the Applicants' February 4, 1980 motion. ECNP should affirm that it wishes to include this response as part of its answer. In response to interrogatory 4B-2, ECNP should indicate whether it will accept I
5 the listing of facilities in Table 1.1-8 of the ER (a copy of which was provided to it by the Board at the prehearing con - ference) (Tr. 532, 533-34). 7. If any party has answered any interrogatory by stating that it has no information or that it is developing information, it must supplement those answers to reflect any new information it acquires. As but one example, ECNP has ynswered interrogatories on its Contention 18 in this manner. The May 1 responses should reflect new information gained as of that date. 8. The Board also declined to dismiss CAND from the proceed-ing but limited its contentions to those as to which it is the sole sponsor. By May 1, CAND must answer all interrogatories to the extent it has information to do so, relating to the environ-mental contentions it is solely sponsoring - i.e., Contentions 16 and 17 and the portion of Contention 2 concerning releases of Cesium-137, Cobalt-60,and chlorine (Tr. 706-707, 709-10). At a later date, the Board will issue a prehearing conference order explaining the reasons for our rulings reflected above (as well as setting forth additional rulings and other matters dis-cussed at the conference). .~.. B' ,s -a y a 1, w. --.. .R ,Fi3 6 tt - %m'u;,. _ ; ..'5 ~i icWgw M. _. m. ~:'y 4 '.77 -. - ^ ..r,;.Q:.syY'f bY
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^.. FOR THE ATOMIC SAFETY AND LICENSING BOARD YD - W\\ 3 Dr. Oscar H. Paris, Member 2nfo OH 3! W Charles Bechhoeferg Chairman Mr. Bright, who is recovering from surgery following an accident, did not participate in the consideration or disposition of the matters discussed in this Memorandum. Dated at Bethesda, Maryland, this 27th day of March, 1980. a e I t e
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\\ l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE C0tNISSION In the Matter of PENNSYLVANIA POWER AND LIGHT CO. ) Docket Hos. S0-387 ALLEGHENY ELECTRIC COOPEPATIVE, INC. ) 50-388 ) (Susquehanna Steam Electric Station, ) Units 1 and 2) ) NRC STAFF'S ANSWER IN GPPOSITION TO ECNP'S PETITION FOR COMMISSION REVIEW OF LICENSING BOARD'S PREHEARING RULINGS n,, .i ' ocKETO uso: O APR 7 19 80 p. .c' \\ Cff.:e of the S!0mi:7 A we:i & Serd:e \\.[-. Emd W i,,.g \\ James M. Cutchin IV Counsel for NRC Staff L. April 4,1980
~ ) i ~' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) l ) PENNSYLVANIA POWER AND LIGHT CO. ) Docket Nos. 50-387 ALLEGHENY ELECTRIC COOPERATIVE, INC. ) 50-388 ) (Susquehanna Steam Electric Station. ) Units 1 and 2) ) NRC STAFF'S ANSWER IN OPPOSITION TO ECNP'S PETITION FOR COMMISSION REVIEW 0F LICENSING BOARD'S PREHEARING RULINGS I. INTRODUCTION l On March 15, 1980 Intervenor Environmental Coalition on Nuclear Power (ECNP) served the NRC Staff with a document entitled " Request to the NRC Comissioners for Expedited Consideration of Actions of an Atomic Safety and Licensing Board ~ ~ and Other Matters." The Lihensing Board's actions of'which Commission' re$iew ~ is sought are: (1) scheduling and discovery rulings made by the Licensing Board in the currently ongoing prehearing phase of this operating license proceeding, (2) the Licensing Board's refusal to certify to the Comission questions related to the Licensing Board's discovery rulings and (3) the Licensing Board's refusal to ;ertify to the Commission ECNP's request that a Comissioner sit as a member of the Licensing Board. For the reasons set forth' below the Staff opposes the petition for review. U e Licensing Board's actions nediating the claims of the parties on these Th issues are set forth in the Board's " Memorandum and Order on Scheduling and .. Discovery Mottens (I)" of August 24,1979, "Menorandum and. Order on Discovery Motions (II)" of October 30,1979 (LBP-79-31,10 NRC 597) and '.'.6rd6r: Denying ~' Requests of ECNP" of December 6,1979.
i .g. i t II. BACKGROUND In this operating license proceeding the Staff and the Applicants propounded a series of interrogatories to Intervenor ECNP.- l As allowed by 10 CFR 2.740 of the Cocmission's Rules of Practice, these interrogatories sought information related to contentions admitted to the proceeding by the Licensing Board. ECNP answered some but failed to fully answer many of the interrogatories. Following motions by the Applicants and the Staff to compel proper answers to their inter-rogatories, the Licensing Board ordered ECNP to respond to the discovery requests of Acolicants and the Staff within fourteen (14) days of service of its order. Rather than oroviding answers or specific objections as directed, ECNP filed a response to the Licensing Board's Order which provided some answers but generally 4 objected to most of the interrogatories. / Applicants and Staff filed motions l seeking dismissal of ECNP and its contentions from the proceeding for its failure to obey the Licensing Board's discovery order. The Licensing Board declined to dismiss ECNP and its contentions from the proceeding, but granted ECNP (and the other intervenors) relief from certain of the discovery obligations imposed earlier and extended the time for intervenors to respond to December 14, 1979. 1# "NRC Staff's First Round Discovery Requests of the Environmental Coalition j on Nuclear Power (ECNP)" dated May 21, 1979 and " Applicants' First Set of j Interrogatories to Intervenor ECNP" dated May 25, 1979. 1#" Memorandum and Order on Scheduling and Discovery Motions (I)" dated .l August 24, 1979. (Slip opinion at 13 and 15). i --#I " Responses of ECNP Intervenors to Board Memorandum and Order Compelling j Intervenors to Answer Applicant and Staff Interrogatories" dated September 17, 1 1979. -__/ " Memorandum and Order on Discovery Motions (II) dated October 30, 1979," 5 ~ LBP-79-31,10 NRC 597, 605-6.
However, the Licensing Board stressed the need for the intervenors to respond in a timely fashion to their remaining discovery obligations. 6/ The Licensing Board also advised the intervenors of the potential consequences of their continued i 7 failure to fulfill their discovery obligations. In response to that order, ECNP filed a document asking the Board to certify to the Comission the questions that are the subject of the instant ECf'P petition i 8 and again sought a protective order. f The Licensing Board denied ECNP's requests and extended the date for the intervenors' responses-to their outstanding dis-9 covery obligations to January 18, 1980. / On that date ECNP filed a docunent containing insufficient answers to the out-10 standing interrogatories. / Followino receipt of this document the Applicants acain moved the Liensing Board to impose sanctions on ECNP for its failure to ~ obey the Licensing Board's discovery orders i ff_ -._.: ~ F J~ The Licensing Board heard oral argunent on the motion and related Board questions on March 20 and 21, 1980. The Board declined to order the requested sanctions, El M. at 602. 1 M. a t 605-7. t --bI "Intervenor's Response to Licensing Board Memorandum and Order of October 30, i 1979" dated November 19, 1979. 1/ *0rder Denying Requests of ECNP" dated December 6,1979. mN* 10# "ECNP's ResEonses to Board's Memorandun and Order on Discovery Motions (II)"r dated January 18, 1980. ~.d r ~
/ 4-l granted ECNP (and other intervenors) additional relief from discovery obligations, and extended to May 1,1980, the date for intervenors' answers to interrogatories.11/ Prior to the Board's ruling, EC'IP on March 15, 1980, filed the present petition for review by the Commission. In this petition ECNP makes nine requests for relief. 2/ In eight of its requests ECNP seeks relief either from scheduling 1 and. discovery rulings made by the Licensing Board in the currently ongoing pre-hearing phase of this operating license proceeding or from the Licensing Board's refusal to certify questions related to its discovery rulings. In the ninth request ECNP appeals the Licensing Board's refusal to certify its request that a cot.issioner sit as a member of the Licensing Board. III. ARGUME1T There is no provision in the Commission's Rules of Practice for a direct appeal to the Cornission of a Licensing Board's interlocutory rulings. As here relevant, the Conmission's Rules of Practice forbid appeal of the interlocutory rulin's of Licensing Boards. 10 C.F.R. 2.730(f) states: "No interlocutory appeal ehy be taken to the Commission from a rulinc of the presiding officer." Tl/"Menorandum" dated March 27, 1980. E ECNP Petition at 3-5. S/ ee 10 C.F.R. 2.730(f). See Pennsylvania Power and Light Co. (Susquehanna l S Duke Power Steam Electric Station, Units 1 and 2), ALAB-563,10 NRC 449 (1979); ~ Comoany (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-433, 6 NRC 469 (1977); Public Service Comoany of Oklahona (Black Fox Station, Units 1 and 2), i ALAB-370, 5 NRC 131 (1977), and cases there cited. But see 10 C.F.R. 2.714a. 4
'k -5 Moreover, although it is clear that the Comission has the power to undertake interlocutory review of any matter in any proceeding before any Board at any 14
- time,
/ the Comission has delegated to the Appeal Board the Comission's authority to review a Licensing Board's rulings and actions in the first instance.it ' Where no attempt has been made to obtain review by the Appeal Board, such an appeal should be dismissed for failure to exhaust renedies below.16 / In appropriate circumstances attempts to obtain interlocutory review have been treated as requests that a Licensing Board be directed to certify questions for interlocutory appellate review.17/ However, this is not an instance where discretionary interlocutory review would be granted. As recently as November 23, 1979, the standard for directed certification of interlocutory rulinns was i reiterated. Puget Sound Power & Light Co.18/ states: 14# - See United States Energy Research and Development Administration, Project Management Corporation, Tennessee Valley Authority (Clinch River Breeder i Reactor Plant), CLI-76-13, 4 NRC 67, 74-76 (1976); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CL1-77-8. 5 NRC 503, 516, 517 (1977), affimg New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978). See also, Florida Power and Light Company 15 (St. Lucie Plant, Units Nos.1 and 2), CL1-77-15, 5 NRC 1324,1325 (1977). / - See 10 C.F.R. 2.785(a)(1); Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAS-56, 4 AEC 930, 931 (1972). But see: Metropolitan Edison Concany (Three Mile Island Nuclear Station, Unit 1), CLI-79-8,10 NRC 141,147 (1979) for an exception not here applicable. See also: Interim Statement of Policy and Procedure, 44 Fed. Rec. 58559 (1979). t 16 ~ / ee 10 C.F.R. 2.786(b)(4)(iii) which states: "A petition for review [by the S Comission) will not be granted to the extent it relies on matters that could have been but were not raised before the Atomic Safety and Licensing Appeal Boa rd. " Cf. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), CLIU 7-25, 6 NRC 535, 537 (1977). 17/ ee 10 C.F.R. 2.718(i); Public Service Company of New Hampshire (Seabrook S Station, Units 1 and 2), ALAB,271,;l NRC 478 (1975). -)gj .c Puget Sound Power and Light' Company, et al. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572, 10 NRC , slip op. p. 2 (1979). 4 ~ w
t Almost without exception in recent times, we have under-taken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with irrediate and serious irreparable impact which, as a practical matter, could not be alle-viated by a later appeal or (2) affected the basic struc-ture of the proceeding in a pervasive or unusual manner. (Citing Public Service Company of Indiana (Marble Hill, Units 1 and 2), ALAB-405, 5 NRC 1190.1192 (1977).) Since Marble Hill was decided, discretionary interlocutory review has been granted only sparingly.19' A number of decisions shape the parameters of the concept of discretionary j interlocutory review. Directed certification "is to be resorted to only in exceptional circumstances." 20' 0bjections to procedures for handling prehearing rotions do not present a proper subject for directed certification.21/ Certification will not be directed to review rulings on inte rroga to ries.22 / Directed certification will not be granted to review a scheduling controversy where the controversy does not brino to the fore any limitations imposed by law on the Licensing Board's jurisdiction or authority and where no "truly exceptional situation" is involved.23# 9 M ld.. at 3, n. 5. M onsumers Power Company (Midland Plant, Units 1 and 2), ALAB-382, 5 NRC C 603, 606 (1977). M uerto Rico Water Rescurces Authority (North Coast Nuclear Plant, Unit 1), P ALAB-361, 4 NRC 625 (1976). M ono Island Lighting and Power Company (Jamesport Nuclear Power Station, L Units 1 and 2), ALAB-318, 3 NRC 186 (1976). M ublic Service Company of New Hampshire (Seabrook Station, Units 1 and 2), P ALAB-295, 2 NRC 668 (1975). i j m
4 ECNP correctly characterizes its requests as related to procedural aspects of the proceeoing.2a/ The rulings appealed from are interlocutory. As stated in E/ i Toledo Edison Co.: The test of " finality" for appeal purposes before this agency (as in the courts) is essentially a practical one. As a general matter, a licensing board's action is final for appellate purposes where it either disposes of at least a major segment of the: case or terminates a party's right to participate; rulings which do' neither are interlocutory. Here the scheduling and discovery rulings do not dispose of any segment of the case and do not terminate any party's right to participate. Any alleged prejudicial errors stemninc from, among other thines, rulings on discovery and schedules are reviewable on exceptions to the Licensing Board's initial decision at the end of the proceeding.26/ Nor does the refusal of the' Licensing Board to certify ECNP's request that a Connissioner sit on the Licensing Board merit review. The Conmission has P not elected to alter the normal makeup of the Licensing Board to include a Commissioner. ECNP's baseless allegations do.not sugaest that the standards for disqualification of a Board member have been met.E1/ EECNP Petition at 1. 21/ oledo Edison Company (Davis Besse Power Station), ALAB-300, 2 NRC 752,- T 758 (1975). 26/ ee: - Northern Indiana Public Service Company (Bailly Generating Station, S Nuclear-1), ALAB-224, 8 AEC 244 (1974) and ALAB-302, 2 HRC 858 (1975). 27 ---/ 4 ECNP's citation of 10 C.F.R. 2.704(c) in footnote 5 at page 4 of its request indicates its awareness of the proper procedure and support required when disqualification of Licensing Board members is sought. .g ,v. Y U
g O 8 IV. CONCLUSION For the reasons discussed above, ECNP's interlocutory appeal should be denied. Should the Comission nevertheless grant the appeal, the Staff requests that it be allowed the opportunity to address the merits of the individual requests for relief made by ECNP as it would be upon the grant of review by the Comission of I Appeal Board decisions and actions. l Respectfully submitted, o
- m. ~
%%.-.-1 James M. Cutchin IV Counsel for NRC Staff ( ~ Dated at Bethesda, Maryland, this 4th day of April,1980. U see 10 C.F.R. 2.786(b)(6). f I l a
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0t?'lSSION BEFORE THE'C0ft11SSION In the Matter of PENNSYLVANIA POWER AND LIGHT CO. ) Docket Nos. 50-387 ALLEGHENY ELECTRIC COOPERATIVE, INC. ) 50-38B (Susquehanna Steam Electric Station, Units 1 and 2) ) CERT!FICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER IN OPPOSITION TO ECNP's PETITION FOR COMMISSION REVIEW OF LICENSING BOARD'S PREHEARING RULINGS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk by deposit in the Nuclear Regulatory Commission internal mail system, this 4th day of April,1980: Charles Bechhoefer, Esq., Chairman
- Dr. Judith H. Johnsrud Atomic Safety and Licensing Co-Director Board Panel Environmental Coalition on U.S. '.uclear Regulat y Co~ mission Nuclear Po,er Washington, D.C.
20555 433 Orlando Avenue State College, PA 16801 Mr. Glenn 0. Bright
- Atomic Safety and Licensing Mr. Thomas M. Gerusky, Director Board Parel Bureau of Radiation Protection l
U.S. Nuclear Regulatory Commission Depart ent of Environmental Washir; ton, D.C. 20555 Resources Commonwealth of Pennsylvania Dr. Oscar H. Paris
- P.O. S;x 2063 i
Atomic Safety and Licensing Harrisburg, PA 17120 Scarc Par.el 1 U.S. Nuclear Regulatcry Comission Ms. Colleen Marsn 1 Wa shi r.g ton, D.C. 20555 Box S3SA, R0=4 Mountain Top, PA 18707 Jay Silberg, Esc. Shaw, Pittman, Potts and Mrs. Irene Lemanewicz, Chairperson Trowbri dge The Citizens Against Nuclear 1800 M Street, N.W. Dangers i Washington, D.C. 20036 P.O. Box 377 RDF1 Berwick, PA 18503 ~ l 'g.
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- c/o Gerald Schultz, Esq.
U.S. Nuclear Regulatory Commission _ 500 South River Street Washington, D.C. 20555 Wilkes-Barre, PA 18702 Docketing and Service Section* Atomic Safety and Licensing Office of the Secretary Appeal Board Panel
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C. 20555 Alan S. Rosenthal, Esq., Chairman
- Bryan A. Snapp, Esq.
Atomic Safety and Licensing Pennsylvania Power & Light Company Appeal Panel U.S. Nuclear Regulatory Commission Two North Nintn Street Allentown, PA 1810) Washington, D.C. 20555 Mr. Sanuel J. Chilk
- Mr. Robert M. Gallo Secretary of the Commission Resident Inspector U.S. Nuclear Regulatory Commission P.O. Box 52 Washington, DC 20555 Shickshinry, PA 18655 4
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the' Commission In the Matter of ) ) PENNSYLVANIA POWER & LIGHT COMPANY ) Docket Nos. 50-387 and ) 50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC. ) ) (Susquehanna Steam Electric Station, ) Units 1 and 2) ) j APPLICANTS' RESPONSE TO ENVIRONMENTAL COALITION ON NUCLEAR POWER'S " REQUEST TO THE NRC COMMISSIONERS FOR EXPEDITED CONSIDERATION OF ACTIONS OF AN i ATOMIC SAFETY AND LICEUSING BOARD AND OTHER MATTERS" In a filing dated March 14, 1980, the Environmental Coalition on Nuclear Power (ECNP) requested that the Commis-sioners take certain-immediate actions relating to -the -on-- going operating license hearing involving the Susquehanna units. These actions largely concern the discovery process in the Susquehanna proceeding, but also ask the Commission to suspend the licensing proceeding and to place one of the Commissioners on the Licensing Board. Applicants respect-fully request that ECNP's request be denied. The ECNP request as it concerns discovery matters is clearly interlocutory. While the Commission has the authori,ty to undertake interlocutory review at any time, we respectfully submit that such review ought not to be exercised in this case. We agree with, and adopt, the legal analysis of-this matter
4 set forth in the NRC Staff's Answer to the ECNP Petition, dated April 4, 1980. A background statement is, nonetheless, appropri' ate and helps to place ECMP's allegations in perspective. The Susquehanna operating license proceeding commenced on August 8, 1978, with the publication of the notice of hearing.
- ECNP, an experienced intervenor in NRC proceedings,~1/filed a peti-tion to intervene on September 5, 1978, and on January 15, 1979, submitted an amended petition including ten contentions, some with eight or more subparts.
Following a January 29-31, 1979 special prehearing conference, the Licensing Board ad-mitted 18 contentions, many with multiple subparts, and established a schedule for the proceeding which called for j 1/ECNP has described its experience as follows in an April 3, T980 submittal in the Three Mile Island, Unit 1 Restart pro-ceeding: i "These [ENCP) Intervenors have been active, and effective, parties to Nuclear Regulatory l Commission, as well as Atomic Energy Commis-sion proceedings since 1972. ECNP has par-ticipated in license proceedings for Three i Mile Island, Units 1 and 2; Peach Bottom, Units 2 and 3; Fulton, Units 1 and 2; 1 Limerick, Units 1 and 2; Newbold Island, Units 1 and 2; and Susquehanna, Units 1 and 2; ECNP has participated in the Com-mission's Generic Rulemaking proceedings on GESMO, Table S-3, ECCS, and the current Reassessment of Confidence in Radioactive Waste Disposal. ECNP has also recently petitioned for a hearing on the pro-posed changes in Technical Specifications for Three Mile Island, Unit 2. )
interrogatories to be cubmitted on May 25, 1979 and responses on June 29, 1979. See Special.Prehearing Conference Order, LBP-79-6, 9 NRC 291 (March 6, 1979). On May 25, 1979, Applicants filed interrogatories with each of the four intervenors. These consisted of about 150 specific interrogatories covering the 18 contentions, and a series of general interrogatories intended to elicit the basis for answers to specific interrogatories. (For example, if the answer to a specific interrogatory was based on a document, a general interrogatory asked that the document be identified). ECNP filed discovery requests on Applicants, and on June 29, 1979 Applicants provided responses including written answers and copies of a number of documents. In addition, Applicants made available for ECNP's inspection many thousands of, pages of internal company files and documents.-2/ ECNP did not answer Applicants' discovery but rather i i sought a' protective order from the Licensing Board. On August 24, 1979, the Licensing Board in its Memorandum and Order on i Scheduling and Discovery Motions, denied ECNP's request for a protective order, granted Applicants' motion to. compel answers to their discovery requests, and directed ECNP to file answers to in,terrogatories or a particularized motion for protective _ order within 14 days. On September 17, 1979, ECNP responded I i 2/During the seven months that this material has been avail-able, ECNP has not reviewed or examined it.
by asking the Licensing Board to postpone ECNP's obligation to respond to. discovery until Sgptember 15, 1980, and ob-l served that ECNP's time had been absorbed by " responding to I calls for information, assistance and assurance from victims of the TMI-2 accident". In light of ECNP's failure to comply l with the Licensing Board's August 24, 1979 Order, Applicants moved to dismiss ECNP.~3/ A similar motion was filed by the Staff. ECNP's October 22, 1979 answer to the motion objected4/ to "the enormity and viciousness of the Applicants' demands." The Licensing Board then issued its October 30, 1979 Memorandum and Order on Discovery Motions, LBP-79-31,10 NRC i 597, in which it stated that "it is absolutely necessary that the intervenors respond in a timely fashion to the discovery t obligations which still remain". 10 NRC at 602 (original emphasisT. The Board then extended until December 14, 1979, the time for ECNP to file answers, suspended discovery on safety issues, and ruled that an intervenor need only respond to interrogatories on contentions which it sponsored. The ~ 3/In its motion, Applicants stated that they would not object to a further extension of about two weeks to permit ECNP to answer Applicants' interrogatories. 4/This characterization may be compared with the response to Xpplicants' discovery request by another intervenor, Colleen Marsh et al., a group with no prior NRC experience, which filed 20 pages of long-hand responses to Applicants' interrog-4 atories. Applicants have accepted these responses and have sought no additional discovery from this group. l
k ' - t i effect of the latter two~ rulings was to reduce from' 18 to 5 the number of contentions on which ECNP was obligated to answer interrogatories. ECNP's response to the-October 30 Order, filed on i November 19, 1979, was to continue its refusal to provide answers, request another protective order, and to ask that the Licensing Board be disbanded "for gross incompetence". ECNP Response to Discovery Memo II, at 12. On December 6, 1979, the Licensing Board issued another order noting that ECNP's filing was " disrespectful in tone, inaccurate, and misleading in content and frivolous in all re'spects", Order at 2, but nonetheless extending the time for ECNP's discovery responses to January 18, 1980. On January 18,'1980, ECNP filed' it's first ' substantive response to Applicants' May 25, 1979 discovery, by providing [ answers to interrogatories on two of its five contentions. t In view of the lack of adequate responses to the remaining interrogatories, Applicants on February 4, 1980 filed a motion to limit ECNP's participation in the evidentiary i hearing as to those contentions on which ECNP did not file' adequate discovery responses. ECNP's February 19, 1980 re-sponse to this motion among other things stated that its. abflity to respond was affected by the " press of many other obligations." ..:r l Q.. </v n >a a
a. ) ...e' I - Finally, at the March 20-21, 1980 prehearing conference (as reflect.ed in the Licensing Board's March 27, 1980 Memo-randum), the Licensing Board denied Applicants' motion to limit ECNP's participation with the understanding that ECNP would file additional discovery responses by May 1, 1980, ten months after the date on which responses were initially due. i This chronology clearly demonstrates that the Licensing Board has been rather lenient in imposing on ECNP the respon-sibilities which are associated with participation in NRC proceedings. It also demonstrates that ECNP's filing with the Commission has not f airly characterized the nature of the dis-i covery process in this proceeding or the Licensing Board's responses to ECNP's complaints. ECNP has not shown anything to indicate that the Licensing Board's actions either (a) threaten {] the party adversely affected with immediate and serious irrep-arable harm which could not be remedied by a later appeal, or (b) af fect [] the basic structure of the proceeding in a pervasive or unusual manner. Public Service Electric and Gas Co._ (Salen Nuclear Generating Station, Unit 1), ALAB-588 (April 1, 1980) (Slip op, at 8-9). ECNP has shown no reason why the extraordinary, interlocutory relief which it seeks is appropriate. The Licensing Board's l orders of August 24, 1979, October 30, 1979, December 6, 1979, and March 27, 1980 have significantly reduced the magnitude of ECNP's discovery obligations and have substantially extended. t ,a w
) l _7_ i the time schedules. ECNP's requests on this score, even if they were meritorious, are now. moot. i As for ECNP's request that the Licensing Board be re-l l constituted to include a Commissioner, we see no merit in this suggestion. The proceeding has been underway for more than a year and a half. To remove one of the members of l the Licensing Board would serve little purpose save delay of this proceeding. To the extent that ECNP's request is based on its unsubstantiated allegations concerning conduct by the Licensing Board, ECNP is aware of the procedures which i should be followed in seeking the disqualification of Licensing Board members.~5/ i ECNP has not sought to comply with those pro-j cedures. Finally, we address ECNP's request for a suspension of the licensing proceedings ~ I until such time as the Applicant has completed all proposed. construction changes and the NRC Staff has completed j its review thereof and has completed its required documents (e.g., SER), with sufficient time for meaningful persual by the Intervenors. ECNP Request to the NRC Commissioners at 5. This request is totally inconsistent with Commission regulations, practice and decisions.
- See, e.g. Wisconsin Electric Power Co.
5/See ECNP's citation to 10 CFR 52.704 (c). Request to the NRC Commissioners, at 4, fn. 5.
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,s#"* (Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-4 5, 8 AEC 928 (1974). Nor does it make sense to stop the hearing on environmental issues because safety review is not complete. For all the reasons set forth above, the Commission should reject ECNP's requests. Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By M M Ja){dsela for Applicantsj E. Silberg Coe 1800 M Street, N. W. Washington, D. C. 20036 (202)331-4100 Dated: Ap ril 10, 1980 i P f
,,.a-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In-the Matter of ) )- PENNSYLVANIA POWER & LIGHT COMPANY ) Docket Nos. 50-387 and ) 50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC. ) ) (Susquehanna Steam Electric Station, ) Units 1 and 2) ) CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Applicants' Response to Environmental Coalition on Nuclear Power's " Request to the NRC Commissioners for Expedited Consideration of Actions of an Atomic Safety and Licensing Board and Other Matters" were served by deposit in the U. S. Mail, first class, postage pre-paid, this 10th day of April, 1980, to all those on the at-tached Service List. N v W bey EJ. Sil!5 erg y (/ I Dated: April 10, 1980 u = ,j... ; j. g4 ' 4: 'y. 2. ~ i# T .oy .dk E 4 *, - M+' .. s.,, =,;+ew g
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission 1 the Matter of ) ) - NNSYLVANIA POWER & LIGHT COMPANY ) Docket Nos. 50-387 and ) 50-388 LLEGHENY ELECTRIC COOPERATIVE, INC. ) iusquehanna Steam Electric Station, ) lits 1 and 2) ) SERVICE LIST tcretary of the Commission Docketing and Service Section S. Nuclear Regulatory Commission Office of the' Secretary .shington, D. C. 20555 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 tarles Bechhoefer, Esquire . airman Dr. Judith H. Johnsrud .omic Safety and Licensing Co-Director Board Panel Environmental Coalition on S. Nuclear Regulatory Commission Nuclear Power shington, D. C. 20555 433 Orlando Avenue State College, Pennsylvania 16801 Glenn O. Bright omic Safety and Licensing Susquehanna Environmental Advocates Board Panel c/o Gerald Schultz, Esquire S. Nuclear Regulatory Commission 174 Machell Avenue ~
- shington, D.
C. 20555 Dallas, Pennsylvania 18612 Oscar H. Paris Mrs. Irene Lemanowicz, Chairman omic Safety and Licensing The Citizens Against Nuclear Danger Board Panel Post Office Box 377 S. Nuclear Regulatory Commission R. D. 1
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C. 20555 Berwick, Pennsylvania 18603 omic Safety and Licensing Ms. Colleen Marsh ~ Board Panel 558 A, R. D.
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Nuclear Regulatory Cormdssion Mt. Top, Pennsylvania 18707 shington, D. C. 20555 Mr. Thomas M. Gerusky, Director mes M. Cutchin, IV, Esquire Bureau of Radiation Protection fice of the Executive Legal Department of Enviromental Resources Director Commonwealth of Pennsylvania S. Nuclear Regulatory Commission P. O. Box 2063 shington, D. C. 20555 Harrisburg, Pennsylvania 17120 omic Safety and Licensing Appeal Board Panel S. Nuclear Regulatory Commission i
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