ML20087P513

Response Opposing Applicant Motion to Dismiss Particular Onsite Emergency Planning Contentions for Which Discovery Has Not Been Provided or No Litigable Basis Shown. Certificate of Svc Encl.Related Correspondence

ML20087P513
Person / Time
Site:	Limerick
Issue date:	03/30/1984
From:	Elliott C LIMERICK ECOLOGY ACTION, INC.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8404090117
Download: ML20087P513 (11)

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. UNITED STATES OF A!4 ERICA h I -

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Before the Atomic Safety and Licensing Board In-the Matter of )

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Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

. Units 1 and 2) )

LEA RESPONSE TO APPLICANT'S " MOTION TO DISMISS PARTICULAR ON-SITE EMERGENCY PLANNING CONTENTIONS FOR WHICH DISCOVERY HAS NOT BEEN PROVIDED OR NO LITIGABLE BASIS S!!OWN"

SUMMARY

Applicant's Motion is a wholly impropor "ond-run" around Cor. ;ission regulations. Despite it5 charactorization as a

" Motion.to' Dismiss", in substance it is either a Motion for Sanctions, or a Motion for. Summary Disposition.- It fails to meet the Commission's. requirements for entitlement to either form of relief.

r ARGUMENT On or about February 5, 1984, Applicant served upon LEA's counsol by mail a set of-Interrogatorios containing some 75 broad interrogatories,-many of which begin " Explain why...~".

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4 over two-thirds of the Interrogatories referenced documents that LEA's counsel had no practical opportunity to review until February ll, 1984, (a week after the Interrogatories were ser-ved) aus he was attached to trial in federal court in another city, and was out of the state until that date.

Nevertheless, LEA provided some fifty pages of answers to the Interrogatories. In some cases, it was unable to provide complete responses, because LEA had not yet completed its re-view of some of the information referenced by the Interrogatory.

'Each interrogatory was answcred; in the casos in which

, LEA's review was not complete, that fact was so stated, with an offer to supplement the response upon completion of the review.1/

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LEA believes that it answered-the ingerrogatories " separately and fully" as required by 10 C.F.R. 52. 74 0b (b) . With respect to those-interrogat'ories to which LEA bolioved that a complete answer depended upon independent research and analyses, it is fundamental that a party is not required by discovery requests to per f orm such research and analyses. Pennsylvania Power and

'- ' Light Co. (Susquehanna Steam Electric Station) ALAB 613, 12-

NRC 317, 334 (1980). A fortiori, a party is not required to complete them within any particular time period.

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There was a well established remedy for Applicant if it believed that LEA's responses to its Interrogatories did not meet the requirements of 10 C.F.R.

E2.74 0b (b) : a motion to compell. Applicant did not avail itself of such a remedy within

~t he required time period.

Instead, Applicant does not seek fuller answers, but to dismiss numerous on-site emergency planning contentions. Such a Motion,-in substance, is either a motion for sanctions or a motion.for summary disposition of fully admitted contentions.

If^ viewed as a Motion for Summary Disposition, the motion is plainly without merit. It does not even attempt to meet the applicabic requirements of 10 C.F.R. 52.74 9 (a) , is accompaniod by no statement of matorial facts or affidavits of qualified persons, it has been filed " shortly before the hearing commences"

and would' require LEA# "to devert substantial resources from the hearing in' order to respond adequatoly to the motion." 10 C.P.it.

E2.749 (a) . .

The substance of the motion is also misleading and meritless.

'Without addressing in detail each of the matters Applicant raises in its Motion, LEA' wishes to demonstrate why-this is so. For example, in the Motion 1(pp. 6-7)., Applicant requests dismissal of Contention _ VIII-8 (b) . _ That contention states :

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The LNGSEP fails to demonstrate that adequate

, emergency facilities and equipment to support emergency response are provided and maintained as required by 10 CFR 550.47 (b) (8) , especially in that:

(b) The Plan's descripgions of the Emergency Operations Facility (glan 57.1.2), the Technical Support Center (Plan 57.1.4), and emergency equipa ment and supplies are all insufficient to meaning-fully assess compliance with;10 CFR 550.47 (b) (8) and to evaluate the faciliti~es with respect to the cgitoria of NUREG-0654, Supplemont 1 to NUREG-0737 (58), and NUREG-0696. Intervenor contends the applicant has not demonstrated that the facilities proposed are adequate. Applicant's response to O 810.30 states that the Plan will be expanded when final information is available on these facilities.

As the sole bases for this request, Applicant complains that LEA's response to Interrogatory 32 " simply cit [ed] three generally applicable NUREG documents", which " docs not tell Applicant how LEA believes the plan fails to meet the regulatory provisions it had cited." (Motion, p. 7).2/

The Motion, howevor, utterly ignoros LEA's responso to the previous interrogatory which did' call for an explanation of inadequacy, and-which sets forth numerous criteria for 2/

LEA believes that its response to Interrogatory No. 32 was complete. Interrogatory No. 32 did not seek an explanation of inadequacy, but rather a description of equipment, supplies and facilitics not in the Plan which LMA contended to be necessary for compliance with NRC regulations. The documents referenced by LEA do in fact describe the equipment, supplies and facilities necessary to meet NRC regulations. Rather than reproducing those descriptions, it was surely appropriate to reference them.

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emergency response facilities as to which Applicant has made no showing.

Similarly, Applicant seeks dismissal of Contentions VIII 16(b) and (c) which allege a failure to set forth advance pro-cedures for permitting radiation exposures to on-site volunteers and a failure to demonstrate that sufficient information concern-ing radiation risks will be made available to emergency workers.

The sole basis for this request for dismissal is that LEA's res-ponse to Interrogatory #61 recited that occupational exposures in excess of part 20 standards are licensoo violations, subject-ing the licensee to' sanctions. Even if LEA woro incorrect in applying part 20 standards to occupational emergency exposures, the entire question of legally permissible dosos is scarcoly even rolovant to the contention, lot alone a proper basis for dismissal of the entike contention. Other answers to other Int'orrogatorios (e.g., 60, 62, 63) which are no,t referenced in the Motion more fully explain LEA's bases for Contention VIII-16.

Similarly, Applicant seeks dismissal of Contention VIII-12, which alleges an inadequacy in medical services for contaminated injured individuals on-site. .(Motion, p. 8-10). Applicant bases this request on LEA's Answer to Interrogatory No. 38. That answer referenced the medical treatment LEA doomed to be nocessary (do-pending on the exposure, " supportive" and " heroic" as described e

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in WASH-1400), and the likelihood that serious on-site ex-posures would occur (at least as often as off-site doses in excess of 200 rads to the bone marrow). The answer does not necessarily contemplate numbers of contaminated injured in excess of that contemplated in the San Onefre decision cited by Applicants. Indeed, San Onefre does not support Applicant's view that "there is no legal basis for litigating medical treat-ment for onsite personnel who are radiologically contaminated but not otherwise injured" (Motion, p. 9). The San Onefre decision specifically requires the identification of local and regional medical services capablo of providing diagnosis and treatment to those with serious radiation exposure. See San Onefre, 17 NRC 528, 536 (1983). LEA's Answer to Intorrogatory No. 38 set forth the typos of services that must bo identified as available-for those requiring it (including "horoic" measures,

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including bone marrow transplants). Applicant's plan still doos not meet this standard. -

4 In sum, Applicant's facilo references to only half of LEA's i

i discovery responses and a misconstruction of the other half serve-L as no basis for dismissal of fully admitted contentions.

If the Motion is viewed as a motion for sanctions, demanding the sanction of dismissal of contentions, Applicant _has shown

. absolutely no grounds for such extreme relief. The record of i'

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this proceeding well demonstratos LEA's compliance with Board 5 orders and time lines, and LEA does not believe that it has -

seriously defaulted in its discovery obligations.

i The true thrust of Applicant's complaint is that because some of LEA's answers lack the precision Applicant would have preferred, it is at a disadvantage in preparation of its testimony.

~ Applicant knows its facilities and its plan presumably better than anyone else. Applicant is required to know the regulations and to. comply with them. The law places the burdon of proof of compliance upon Applicant. Its dilemma (if any) is largely the product of two factors, neither one of which is LEA's fault:

[~ (1) Applicant filed general interrogatories, to which LEA's answers were responsive; f.

(2) Applicant waited until the day bul:uru the close of discovery to file its interrogatories, thus eleminating the possibility of a second round of discovery in which it could have -

sought clarification or additional information.

l To now complain that is is "in the dark", and demand dismissal'of contentions, or limit relevant cross-examination on the written testimony Applicant provides, is unwarranted.

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. r Applicant's Motion, therefore, should be dismissed in its entirety.

Respectfully submitted, a e v &

Charles W. Elliott, Esquire

- 1101 Building-Easton, Pennsylvania 18042 (215) 253-4448 Dated: March 30, 1984 O

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1. R ~g cn gI:16 UNITED STATES OF AMERICAD d " :

NUCLEARREGULATORYCOMMISSIONhf ,l,7 ,,

In the Matter of )

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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 " LEA Response to Applicant's " Motion to Dismiss Particular on-site Emergency Planning Contentions for Which Discovery has not Been Provided or.no Litigable Basis Shown" dated March 30, 1984 in the captioned matter have been served upon the following by deposit in the United States mail this 2nd day of April, 1984:

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

. Washington, D.C. 20555 Dockoting and Service Section Dr.-Richard F. Cole Office of the Secretary

't ' Atomic Safety and U.S. Nuclear Rogulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Ann P. Ilodgdon , Esq.

Counsel for NRC Staff Office Dr. Peter A. Morris of the Executive Atomic Safety and Legal Director Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 O

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

Board Panel Community Legal Services, Inc.

U.S. Nuclear Regulatory Law Center West North Commission 5219 Chestnut Street Washington, D.C. 20555 Philadelphia, PA 19139 Philadelphia Electric Company Angus Love, Esq.

ATTN: Edward G. Bauer, Jr. 107 East Main Street Vice President & Norristown, PA 19401 General Counsel 2301 Market Street fir. Joseph H. White , III Philadelphia, PA 19101 15 Ardmore Avenue

• Ardmore, PA 19003 Mr. Frank R. Romano 61 Forest Avenue Robert J. Sugarman, Esq.

Ambler, Pennsylvania 19002 Sugarman, Denworth & Ilellegers 16th Floor, Center Plaza Mr. Robert L. Anthony 101 North Broad Street Friends of the Earth of Philadelphia, PA 19107 the Delaware Valley 106 Vernon Lane, Box 186 Director, Pennsylvania Moylan, Pennsylvania 19065 Emergency Management Agency Basomcnt, Transportation Mr. Marvin I. Lowis and Safety uuilding 6504 Bradford Terrace Harrisburg, PA 17120 Philadelphia, PA 19149 Martha W. Bush, Esq.

, Phyllis Zitzer, Esq. Kathryn S. Lewis, Esq.

Limerick Ecology Action City of Philadelphia P.O. Box 761 Municipal Servicos Bldg.

762 Queen Street 15th and JFK Blvd.

Pottstown, PA 19464 ,

Philadelphia, PA 19107 Mark J. Wotterhahn, Esq. Spence W. Perry, Esq.

Counsel for Philadolphia Associate General counsel Electric Company Federal Emergency 1747 Pennsylvania Ave., N.W. Management Agency Washington, D.C. 20006 500 C Street, S.W., Rm. 840 Washington, D.C. 20472 Zori G. Ferkin, Esq.

' Assistant Counsel Thomas Gerusky, Director .

Commonwealth of Pennsylvania Bureau of Radiation Protection Governor's Energy Council Departmont of Environmontal 1625 N. Front Street- Resources-Harrisburg, PA 17102 Sth Floor, Fulton Bank Bldg.

Third and Locust Streets Harrisburg, PA 17120 O

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Jay M. Gutierrez, Esq.

U.S. Nuclear Regulatory Commission Region I 631 Park Avenue King of Prussia, PA 13406 James Wiggins Senior Resident Inspector U.S. . Nuclear Regulatory Co.Tunission P.O. Box 47 Sanatoga, PA 19464 Timothy R.S. Campbell Director Department of Emergency Services 14 East Biddle Street West Chestor, PA 19380 4

lgt- a di 1 C Charlos W. Elliott, Esq.

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