ML20087K865

Motion to Dismiss Particular Onsite Emergency Planning Contentions for Which Discovery Not Provided or No Litigable Basis Shown.Certificate of Svc Encl

ML20087K865
Person / Time
Site:	Limerick
Issue date:	03/23/1984
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
CON-DSB-94 NUDOCS 8403260349
Download: ML20087K865 (16)

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.s DOCKETED USN?C UNITED STATES OF AMIOIICER 26 A10:45 NUCLEAR REGULATORY COMMISSION

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Philadelphia Electric Company ) Docket /Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

APPLICANT'S MOTION TO DISMISS PARTICULAR ONSITE EMERGENCY PLANNING CONTENTIONS FOR WHICH DISCOVERY HAS NOT BEEN PROVIDED OR NO LIT 1 GABLE BASIS HAS BEEN SHOWN Preliminary Statement In an Order dated March 15, 1984, the presiding Atomic Safety and Licensing Board (" Licensing Board" or " Board")

stated that it had reviewed the apparent positions of the parties gleaned from discovery exchanges and expressed its belief "that many of the remaining disputes appear suscepti-ble to settlement in whole or in part, provided the parties make a determined effort now both to fully discuss the issues and to make reasonable but earnest attempts to accommodate each other's interests to avoid unnecessary litigation."1/

-1/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2) , Docket Nos. 50-352-OL and 50-353-OL, " Order Directing Parties to Hold Settlement Conferences for Onsite Emergency Planning Contentions" March 15, 1984 (slip op. at 1).

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i Applicant wholeheartedly agrees with the Board's conclusions and endorses this approach. Indeed, Applicant had previously expressed to LEA's counsel its willingness to meet informally to explain any possible misunderstanding regarding the provisions of the Limerick Emergency Plan and implementing procedures and thus avoid unnecessary litiga-tion. Accordingly, arrangements have been made for such a meeting, as directed by the Board, to be held in Philadelphia on March 24, 1984.2_/

While Applicant shares the Board's belief that many of the contentions may be resolved by negotiations, it must assume that it will be required to provide direct testimony or to move to strike contentions based upon the answers to interrogatories on each of the remaining contentions.

There are a number of contentions for which no liti-gable issue exists, as demonstrated by LEA's default in failing to answer interrogatories addressed to particular contentions. Further, particular answers clearly demon-strate the lack of any legal or factual basis for dispute.

-2/ In addition to Applicant's counsel, its Director of Emergency Preparedness and possibly other representatives will attend the meeting. Applicant expressed its willingness to hold the meeting sooner, but an earlier date was unavailable due to scheduling conflicts on the part of LEA and the NRC Staff. In particular, Mr. Sears, the Staff's emergency planning witness, will be testifying in the Shoreham proceeding on March 21-23, 1984, and would therefore be unable to attend.

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i Of course, Applicant could simply prepare testimony as to each of the contentions and simply object to improper cross-examination at the time of the hearing if LEA pursues a legally erroneous position.3/ This approach, however, would unnecessarily waste hearing time in requiring the Board to hear argument and to make rulings of law which it could make more suitably before the hearing.

Accordingly, as a protective measure in the event that Applicant is unable to persuade LEA that the concerns expressed in its answers to interrogatories on onsite emergency planning contentions lack legal basis, particular-ly where LEA has altogether failed to answer the interroga-tory,b Applicant moves that the contentions discussed below, in whole or in part, be dismissed.

Argument The significance of prehearing discovery in defining and limiting issues for litigation has been explained by numerous boards, most notably, the Appeal Board in the Susquehanna proceeding, where it stated:

3/ LEA has indicated previously that it will not present any direct testimony. Accordingly, its case will consist only of cross-examination of witnesses provided by the Applicant, the Staff and- possibly the Commonwealth.

4/

In a telephone conversation on March 14, 1984, counsel for Applicant informed counsel for LEA that the failure to provide such answers might require a motion to dismiss. Counsel for LEA responded that he would make (Footnote Continued)

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'O Discovery is the descriptive term for procedures available to help litigants learn the nature of an adve.- 'ary's case in advance of trial. Without recounting the development of the process chapter and verse, it is sufficient for this case to note that an important reason for allowing discovery is to eliminate, insofar as possible, the element of surprise in modern litigation. The underlying concept is to shorten the actual trial, with its attendant expense and inconvenience for all concerned, while increasing the parties' ability to develop a complete record for decisional purposes.5_/

Each of these salutory reasons for discovery -- limit-ing issues and providing parties with an opportunity to be forwarned of its opponent's factual contentions --

has to some degree been negated because LEA has not promptly provided discovery as agreed in advance of the submission of Applicant's written testimony on April 3, 1984.6_/ Thus, LEA (Footnote Continued) every effort to provide the mi3 sing answers promptly, but did not make any specific commitment.

-5/ Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 321-22 (1980).

6/ As background, it is noted that Applicant's interrog-atories were served on LEA on February 5, 1984. It was i only due to the Staff's incorrect transcription of the Board's rulings during a conference call on scheduling _

and the subsequent-inadvertent adoption of the error by i the Board that LEA was granted until March 9, 1984 to respond to the interrogatories. Even so, no interrogatory answers were filed'on that date. At a sidebar conference among counsel and the Chairman on March 7, 1984, the Chairman accepted - the . agreement between Applicant and LEA that LEA would answer as many interrogatories as possible by March 9 with the balance (Footnote Continued)

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has failed to provide answers to certain interrogatories following the deadline accepted by the Board for doing so upon Applicant's oral application for relief at the prehear-ing conference.

Particularly in view of the serious time constraints in preparing adequate testimony created by LEA's untimely discovery responses, the contentions related to unanswered interrogatories should be dismissed even if LEA subsequently provides answers to those interrogatories.U Specifically, the Board should dismiss the followir.g onsite emergency planning contentions for failure to provide discovery:

Contentions VIII-2 (Interrogatories 4-18) , VIII-3 (Interrog-atories 19 and 20), VIII-14(c) (Interrogatory 44),

VIII-14 (h) (Interrogatory 50), and VIII-17 (c) (relating to Interrogatory 69).

Moreover, LEA has furnished what has been characterized in earlier cases as " toss-the-ball-back" answers to other (Footnote Continued) to be answered no later than March 12, 1984. This agreement is reflected in LEA's transmittal letter of March 9, 1984. On March 9 and 12, 1984, LEA served answers to some, but not all, interrogatories. On March 14, 1984, counsel for Applicant spoke with counsel for LEA by telephone, advising that Applicant might seek dismissal of- contentions for which interrogatories had not been answered. As noted, LEA's counsel indicated that he would attempt to provide answers, but gave no firm commitment.

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See generally Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC 1400, 1416-17 (1982).

interrogatories. Licensing boards have uniformly found such 4

answers to be unacceptable. The contentions to which those answers relate should also be dismissed. Thus, Applicant asked in -Interrogatory 3 that LEA specify each postulated accident in the Limerick FSAR which LEA contends should not have been omitted from the Emergency Plan. LEA answered by simply restating the question, i.e., the plan should contain all accidents postulated in the FSAR. The Board in the Three Mile Island proceeding stated that such an answer to practically the identical interrogatory was "unaccept-1 able."8_/ Thus, Contention VIII-2 should be dismissed for this and the other reasons discussed above.

In Interrogatory 23, Applicant asked LEA to specify procedures for notifying response organizations which LEA contends to be inconsistent. LEA's response that it does not understand the assertion of " inconsistency" is wholly unresponsive. Contention VIII-6 (a) clearly asserts that Applicant has not demonstrated that the bases established for its notification of response organizations "are mutually agreeable." Yet, LEA has not explained any alleged incon-sistency. This contention should also be dismissed. In Interrogatory 32, Applicant asked- LEA to identify all 8/'

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Metropolitan Edison Company (Three Mile-Island' Nuclear-Station, Unit No. 1) , Docket No. 50-289, " Memorandum and - Order on : Licensee's Motion ~ to ' Compel . Discovery of CEA" (April.16,1980)- (slip op. at 3) .

emergency equipment, supplies and facilities which it contends to be missing from the Emergency Plan. LEA an-swored by . simply citing three generally applicable NUREG documents. Such an unenlightening response does not tell the Applicant how LEA believes the plan fails to meet the regulacory requirements it had cited. Contention 8(b) should therefore be dismissed.

Similarly, Interrogatory 36 asked for LEA's definition of "the entire range of fires which may occur at the Limerick facility" as used in the contention. LEA simplis-tically answered that the phrase meant those which may require the assistance and response of one or more offsite fire companies. In other words, LEA is asserting that more fire companies must be enlisted in the emergency plan because fires might occur which would require more fire companies. Such meaningless tautologies provide no basis for litigation. Contention VIII-ll should therefore be dismissed.

Interrogatory 46 sought an explanation as . to why the Emergency Plan fails to provide adequate onsite capability and resources to provide initial values and continuing assessment of radioactive releases. In response, LEA answered in part that certain data and monitoring systems-are not described in sufficient detail. No explanation, however, is given as to what detail is missing which would establish their adequacy. Thus, Contention' VIII-14(e) should be dismissed. Likewise, the answer to Interrogatory

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l 49, relating to capacity to acquire and evaluate meteorological information, merely restates the question with a general reference to Regulatory Guide 1.23. Con-tention VIII-14(g) should also be dismissed.

Finally, Interrogatory 52 sought an explanation as to why LEA contends that the plan is inadequate for (1) relat-ing various measured parameters to dose rates for key isotopes and gross radioactivity measurements; (2) estimat-ing integrated dose from projected and actual dose rates; and (3) comparing those estimates with protective action guides. LEA's answer provided only a shotgun reference to previous answers, none of which is at all responsive to this particularized question. Accordingly, Contention 14(k) should be dismissed.

Another category relates to those contentions for which LEA's answers to interrogatories indicate that the only basis for the contention is without legal foundation. It is emphasized that Applicant is not attempting to relitigate the admissibility of any particular contention. On the other hand, there is no useful purpose in pursuing a con-tention at a hearing if the only matter LEA intends to litigate, as indicated by its discovery responses,- is i

entirely lacking in legal foundation. Three such con-tentions discussed below should be dismissed.

In Interrogatory 38, Applicant asked LEA to specify l

medical services and facilities not described in the

! Limerick Emergency Plan which would be necessary for "the i

o potential number of persons , contaminated by the spectrum of credible accident scenarios" cited by LEA in its contention.

In its answer, LEA states its reliance upon WASil-1400 and the severe accident analysis contained in the Limerick Draft Environmental Statement, Supplement No. 1 (December 1983)

(" DES")r As LEA acknowledges, each of these documents relatest to of fsite, radiological consequences. Neither is relevant to the . Applicant's responsibility under the Com-mission's decision-in San Onofre to provide prompt medical treatment and facilities for contaminated, injured onsite personnel in the event of a radiological emergency at Limerick.b 4 Moreover, the . answer to the interrogatory reflects LEA's erroneous belief that advanced planning must be made for a -large number of potential victims of radiological contamination, not otherwise " injured," whereas the Commis-sion has expressly stated that "any treatment required (solely for radiation exposure] could be arranged for on an ad hoc basis." ,

3 Thus',' there exists no legal basis for litigating medical treatment Nor onsite personnel who are radiologich ly contaminated, but not otherwise injured.

There is also no basis for litigating the -medical care

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-9/ See generally Southern California Edison Company (San

• Onofre Nuclear Generating ' Station, Units - 2 and 3) ,

'gl.I-83-10,17NRC,528 4 (1983).

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necessary for contaminated, injured individuals onsite in the range of population discussed in WASH-1400 or the Limerick DES Supplement.

In response to Interrogatory 61, asking whether LEA contends that any regulation prohibits an onsite emergency worker from receiving more than a given maximum dose, LEA stated that the occupational exposure limits in 10 C.F.R. Part 20 provide no exception for emergency conditions. This answer demonstrates that Contentions VIII-16(b) and (c) are premised upon an erroneous legal assumption. As' stated in 10 C.F.R. 550.4 7 (b) (11) , radiological exposures for emergen-cy workers are governed by the EPA emergency worker and lifesaving activity protective action guides in EPA-520/1-75/001, which are expressly incorporated in Table 6-1 of the Limerick Emergency Plan. Accordingly, Contention VIII-16(b) and (c) should be dismissed.

In Contention 20(b), LEA contends that the plan fails to provide for quarterly testing of communications with States within the ingestion pathway EPZ. In Interrogatory 72, Applicant asked why the assumption of this function by PEMAN was inadequate. LEA answered that NUREG-0654, Criterion N.2(a) makes this a licensee obligation also. No legal basis exists for LEA's position that Applicant must-11/. See Emergency Plan 58.1.2.5.f.

~- See also Pennsylvania Disaster Operations Plan, Annex E, Appendix 20,Section III.A.l.b.

x t f y needlessly duplicate this function. Thus, Contention 20(b) should be dismissed.

As a final category, a number of interrogatory answers indicate -that certain contentions have boon withdrawn by LEA. Presumably, LEA will provide the Board with a complete ,

listing of wit!hdrawn contentions as a result of the March 24, 1984 meeting with Applicant and the Staff. Nonetheless, to protect .the record, Applicant notes that the following contentions tiave bEen ' withdrawn and - should be dismissed:

VIII-7(a) and (e), VIII-9, and VIII-16 (f) (as regards area access control) . ,

Applicant also requests a ruling in limi,ae to bar LEA's f

cross-cxamination of the ' witnesses 12/ as - to the matters reasonably encompassed by the interrogatories and which were

-not included in the' responses. For the reasons discussed at the outset, this is'nocessary in order for Applicant to make

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_g an orderly prese.tta(ion in its written testimony and to

< prepare adequately.- for the hearing. If LEA is not so limited, it would be otherwise free to examine as to matters for which it has not given Applican't, fair notice. In r 3 v particular, there aie several instances in which LEA's answers to interrogatories state that items are discussed

" [bl y .way of example of ,only" (e.g., answer to Interrogatory

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31). It is also unclear why LEA believes that the request for "all knowledge and information in intervenor's pos-session" exceeds the scope of permissible discovery under 10 C.F.R. 52.740,E/ or how Applicant's requested supplementa-tion of responses exceeds the requirements of 10 C.F.R.

52.740(e).U/ Applicant believes that a ruling h limine would eliminate a needless waste of time at the hearing in objections and rulings based upon a failure to provide adequate discovery responses.

Conclusion Applicant shares the Board's belief that many of the contentions discussed herein as well as the other remaining contentions can be eliminated by earnest negotiations, which Applicant will diligently pursue in good faith. Nonethe-less, LEA's failure to provide prompt and full discovery and, in some cases, its evident misinterpretation of legal requirements, necessitates this request for relief. Accord-ingly, the Board should dismiss the contentions or portions thereof discussed above and, as to the remaining con-

-tentions, should rule that LEA's cross-exata n ~ t .on of witnesses at the hearing will be limited to the specific

-"-13/ Answers and Objections of LEA to Applicant's First Set of Interrogatories at 1 (March 12, 1984).

14/ Id. at 2.

allegations for which LEA has afforded Applicant and the Staff fair notice in its answers to interrogatories.

Respectfully submitted, CONNER & WETTERHAHN, P.C.

Troy B. onner, Jr.

Mark J. Wetterhahn Robert M. Rader c

l Counsel for the Applicant March 23, 1984 i

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Motion to Dismiss Particular Onsite Emergency Planning Contentions for which Discovery has not Been Provided or no Litigable Basis has been Shown," dated March 23, 1984 in the captioned matter have been served upon the following by deposit in the United States mail this 23rd day of March, 1984:

Lawrence Brenner, Esq. (2) Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Docketing and Service Section

• Dr. Richard F. Cole Office of the Secretary Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555

• Ann P. Hodgdon, Esq.

Counsel for NRC Staff Office

• Dr. Peter A. Morris of the Executive Atomic Safety and Legal Director Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

• Hand Delivery

. .- - -. = _. . ._ - . - - . - - ..

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. Atomic Safety and Licensing Steven P. Hershey, Esq.

Board Panel Community Legal U.S. Nuclear Regulatory Services, Inc.

Commission Law Center West North Washington, D.C. 20555 5219 Chestnut Street Philadelphia, PA 19139

. Philadelphia Electric Company ATTN: Edward G. Bauer, Jr. Angus Love, Esq.

Vice President & 107 East Main Street General Counsel Norristown, PA 19401 2301 Market Street Philadelphia, PA 19101 Mr. Joseph H. White, III 15 Ardmore Avenue Mr. Frank R. Romano Ardmore, PA 19003 61 Forest Avenue Ambler, Pennsylvania 19002 Robert J. Sugarman, Esq.

Sugarman, Denworth &

Mr. Robert L. Anthony Hellegers Friends of the Earth of 16th Floor, Center Plaza the Delaware Valley 101 North Broad Street 106 Vernon Lane, Box 186 Philadelphia, PA 19107 Moylan, Pennsylvania 19065 Director, Pennsylvania Mr. Marvin I. Lewis Emergency Management Agency 6504 Bradford Terrace Basement, Transportation

, Philadelphia, PA 19149 and Safety Building .

Harrisburg, PA'17120 Phyllis Zitzer, Esq.

Limerick Ecology Action Martha W. Bush, Esq.

P.O. Box 761 Kathryn S. Lewis, Esq.

762 Queen Street City of Philadelphia Pottstown, PA 19464 Municipal Services Bldg.

, 15th and JFK Blvd.

• Charles W. Elliott, Esq. Philadelphia, PA 19107 Brose and Postwistilo 1101 Building lith &- Spence W. Perry, Esq.

Northampton Streets Associate General Counsel Easton, PA 18042 Federal Emergency Management Agency.

Zori G. Ferkin, Esq. 500 C Street, S.W., Rm. 840 Assistant Counsel Washington, DC 20472

. Commonwealth of Pennsylvania i Governor's Energy Council Thomas Gerusky, Director 1625 N. Front Street Bureau'of Radiation Harrisburg, PA 17102 Protection Department of Environmental Resources 5th Floor, Fulton Bank Bldg..

Third and Locust Streets Harrisburg, PA 17120

• Hand Delivery on March- 24,.1984

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Jay M. Gutierrez, Esq.

U.S. Nuclear Regulatory Commission Region I 631 Park Avenue King of Prussia, PA 19406 James Wiggins Senior Resident Inspector U.S. Nuclear Regulatory Commission P.O. Box 47 Sanatoga, PA 19464 Timothy R.S. Campbell Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380 Yld//

Robert M. Rader /

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