ML20082S318
| ML20082S318 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 12/08/1983 |
| From: | Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20082S303 | List: |
| References | |
| NUDOCS 8312140103 | |
| Download: ML20082S318 (6) | |
Text
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December 8, 1983
-UNITED STATES OF AMbRICA DCCMETED NUCLEAR HECCLATORY COMNISSION L'F Before the Atomic Safety and Licensine Bo&rdEC 13 M1:33 w
In the Matter of
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)
CFF: E CF F. ~
CLEVELAND ELECTRIC ILLUMINATING
)
DecketNos.CC30-%Al0'P'
)
30 r.M COMPANY, Et Al.
)
(Operating License)
(Perry Nuclear Power Plant,
)
htits 1 and 2)
)
)
OCRE RESPONSE 'IO STMT. AND APPLICANT ANSWERS TO OCRE'S ICTIQN 'IO
( l i EODE5 DISCOVEIE 'ON ' ISSUES,s 6',sc8','144 'Ahl'5
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Intervenor. Ohio Citizens for Responsible Energy ("OCRE") hereby responds to Staff and Applicant answers':to OCRE's Motion to-Reopen Discovery on Issues 6, 8,14, and 15, wherein Applicants and Staff urge that OCRE's Motion be denied on the ground that OCRE's arguments conflict with the Cmmission's rules of practice and Statement of Policy and that no ccmpelling shcuing has been made justifying the reopening of discovery. OCRE suggests that
, their opposition to reopening discovery results less frcm' zeal for the Ccamission's regulations and policies than from a desire to limit OCRE's rights in this proceeding.
s Applicants' reliance upon CLI-81-8, 13 NBC 452 (1981), the Ccumission's Stateme'nt of Policy' on Conductso'f Idcensing Prc?ceedings' is misplaced.
Tne Ccnmission's two-and-a-half-year-old policy statement must be interpreted, in its historical context and should not be accepted forevermore without question. - CLI-81-8 was a response to a perception which is no longer valid.
As amply indicated in the " Background" part of the policy statement, the measures advocated therein were designed to ialleviate a perceived situation which forner Ccumissioner Peter Bradford called "the licensing hoax", i.e.,
that most of the nuclear pcwer plants under construction would be ccmpleted and forced to sit idle while licensing hearings are conducted. As Ccamissioner B312140103 831208 PDR ADOCK 05000440 PnR g
s Bradford's label suggests, the perception was inaccurate at the tune, and
.certainly is erroneous nw. Few of the construction schedules of 1981 are viable ncw, and the delays in these schedules have been sought by the utilities, largely due to financial and construction problems. The few cases where the regulatory and licensing process has delay'ed plant operation (e.g.,
Zirer and Diablo Canyon) can fairly be attributed to the faults of the licensees, and, to paraphrase the Appeal Board in Ver$cnt.Ycd ee Nuclear _
P wer Corp. (Vernont Yankee Nuclear Pcwer Station), AIAB-124, 6 AEC 358, 365 (1973), delay in such situations 'shws that the system is working properly, as the facilities were not ready for coeration.
Furthermore, legislative neasures were taken to alleviate the perceived problem; the te @ 3rary operating license provision (see Final Rule, 48 FR 46489, October 13, 1983) should solve problems of the type envisioned by the Ccmnission's Statement of Policy. Thus, CLI-81-8 can be said to be super-ceded by this legislation.
Even if CLI-81-8 were still valid policy, it should obviously only be invoked when the specific case in question may delay plant operation.
No such threat exists in this proceeding. Perry Unit 1 fuel load is at least There is no rational reason to invoke the measures in CLI-81-8 a year away.
here, as there is no evidence to indicate that reopening discovery will delay fuel load, as Staff admits. Also, it should be noted that the Policy Statement frequently emphasizes the Ccmnission's ccmnitment to fair hearingswhich produce full and ccuplete records, Certainly the Coninission did not intend that the measures of CLI-91-8 be used to the detriment of any party or o'f the quality of the proceeding.
Denying OCRE's motion would do just that, and also would most likely create rather than eluninate delay. here the Board to continue with its requirement that additional dis 6overy can be had only with a shming of good h
~
cause for lateness. (i.e., new information), there would be, in addition to the usual discovery controversy over relevance, further controversy on whether the discovery request was timely and sucported by a state-ent showing good cause. Aside from the innense burden on intervenors vino would have to demonstrate that the discovery could not have been sought at an earlier date, the burden of deciding the resultant disputes would fall upon the Board, whose time could be spent more productively on other matters.
The case law cited by OCRE in its motion demonstrates conclusively that parties seeking discovery should not have to meet a show cause standard.
Rather, the burden is on the party opoosing discovery. To reiterate the coint made in Ccenonwealth Edison (Zion Station, Units 1 and 2), AIAB-196, 7 AEC 457, 468 (1974), "it is an abuse of discretion to deny discovery on timeliness 1/
grounds." ~ Unless Applicants and Staff can show that irreparable harm will result from reopening discovery, discovery nust be reopened.
OCRE nust also ccnnent on a telephone conference call concerning the notion. On November 22, 1983, the Board Chairman initiated a conference call with Applicants' counsel and OCRE's Representative for the purpose of determining whether Applicants needed to respond to theruotion, or whether the matter could be resolved informally. During the call Apolicants' counsel stated that, since Issues 6 and 8 were rendered inactive in this proceeding pending Camission rulemaking, the notion would not apply to those issues.
1/
The Staff claims that, contrary to OCRE's assertion, a prehearing Enference was held pursuant to 10 GR 2.752 and therefore, additional discovery requests ure untimely. The transcript of the May 9 conference call contains no references to 10 GR 2.752, and differed little from the several other conference calls held in this proceeding. Specifically, no order was entered pursuant to 10 GR 2.752(c) which co,ntrolled the subsequent To the course of the proceeding and to which parties could file objections.
extent that a conference was held prior to the May 24 hearing, only the QA matters addressed at the hearing were covered. Staff's assertion that this constituted the 10 GR 2.752 prehearing conference is clearly in error.
~
Counsel'also expressed thc opinion that'Issubs 6 and 8 would he disposed of through rulemaking. hhile OCRE admits that Issue 6 may well be affected by the ANS rule, OCRE does not believe that the final hydrogen rule, if it bears any rese".blance to the preposal, will preclude the litigation of Issue 8.
The rule may change the scope of the litigation, but this is 2/
not enough to cause its dismissal 7 This is precisely the reason that discovery must be reopened.
If-Applicants believe that a final rule on hydrogen control is cause for quickly-filing a motion for sunmary disposition, OCRE will be forced to respond to such a motion with evidence demonstrating the existence of a genuine issue of material fact, which appears, from the Licensing Board's Memorandum and Order (Sumary Disposition of Turbine Missile Issue), IEP-83-46, August 9, 1983, to be an exceedingly difficult standard to meet.
'Ihat same Order exhibits the Board's disinclination to. grant continuances (sanctioned by the Cmmission's rules of practice) so that this standard can be met. Clearly, OCRE cannot be expected to meet these standards without liberal discovery rights.
Issue 8 is not the only issue for which this is a problem. OCRE has discovered in the LPDR a memo (attached) to the NRC Staff calling for Staff input to SSER 4. Input was especially requested on Issue 15, on steam erosion, so that sunmary disposition can be sought on the issue.
Discovery is the main means whereby OCRE can obtain information of evidentiary weight. The problem of inminent sumary-disposition is precisely
.' hy discovery nust be reopened, if OCRE is to have any opportunity to prctect w
its-interests in.this proceeding.
Respectfully st.hmi'.ted, u_ W 'lk S
i Susan L. Hiatt OCRE Representative
_2/ The mutually-agreed-upon moratorium on hearings on these issues did not include a prohibition on discovery.
icytp5htrO5
_E5c.u.C]
^v ero o 9 42e 9 :RC Syste-'
Docket Nos.- { a'0
,331 Rdc MRushbrcok and :,_- W 3JYoungblood JStefano i
MEMORANCUM 70: Multiple Addresses (see attached list)
FROM:
- 5. J. Youngblood, Chief, Licensing Branch No. 1, DL
SUBJECT:
REQUEST FOR STAFF EVALUATIO" INPUTS FCR PERRY SSER N0. a E
l We have scheduled issuance of Supplement No. 4 to the Perry SER in November i
1983, to officially document several evaluation findings received from the staff since Supplement No. 3 was issued in April 1983.
Our records i
indicate several correspondence submitted by the applicant for which a
[
staff response has not yet been receivec, some of whicn were submitted as early as mid-1982. A listing of this information and the responsible review staff is attached.
It is accordingly requested that where appro-p priate, your staff complete their reviews and furnish input for SSER No. 4 E
not later than Friday, October 21, 1983.
c In addition, in adhering to the suggestion made by the Perry Attorney
,[
(Steve Goldberg) at our steam erosion issue meeting with staff of September 19, 1983, it is further requested that the staff provide their integratec position regarding the steam erosion issue for input in SSER No. 4.
It is the intent of Counsel to reference SSER No. 4 in sucmitting a proposed summary ciscosition of this issue to the board.
It is expected that DE will have determined the 7
lead responsibility requested in T.M. Novak's memo of August 25, 1983 to
?
J. P. Knight and W. V. Johnston concerning the formulation of the staff's 9
position on the steam erosion issue.
Therefore, we anticipate that the SSER input for that issue will be forthcoming from staff (AEB, MEB, EQ3, AS3, RSS, MTEE) individualsdesignated lead responsibility.
It is essential that we use SSER No.
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4 as the basis for addressing the steam erosion issue, if we are to take r
advantage of the opportunity to summary dispose of the issue.
1i Your cooperation in helping.us meet our scheduled issuance date for SSER
)
No. 4 will be most appreciated, and is urged.
j C-t i:ulclMb;T
'3. J. "atmsblood,l' B. J. Youngblood, Chief r
Licensing Branch No. 1
[
Division of Licensing I
Attachment:
[
As stated E
CONCURRENCE:
DL:LB#1 DL:
/. JStefanok BJYouncb kod c) i f
s 09
/83/
09/h83 4
r e
m v.-
i
"'t' Czar:rICATE o. srRv1CE
.83 EC 13 A11 :33 This is to certify that cop es of the foregoing were served by deposi in :he 'J. S. Mail, first class, postage cybgaird4_t#.is day,of 1983 to tb d6'W.Nui4, 5 '
on-service,ist oe ow.
./(
, l )'.f If:
Susan L.
Hiatt SERVICE LIST veter B. Bloch, Chairman Terry Lodge, Esq.
ktomicSafety&LicensingBoard 618 N. Michigan St.
U.S. Nuclear Regulatory Comm.
Suite 105 Washington,'D.C-20555 Toledo, OH 43624 Dr. Jerry R..Kline Atomic Safety.& Licensing Board.
Nucleb.r Regulatory Commission i
U.S.~-
Washington, D.C.
20555 Mr. Glenn O.
Bright Atomic Safety &. Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Colleen P. Woodhead, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Jay.Silberg, Esq.
Shaw, Pittman, Potts, & Trowbridge 1800 M Street, NW
. Washington, D.C.
20036 Docketing'& Service Branch
. Office of'the Secretary U.S.. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic. Safety.L. Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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