ML20100C973
| ML20100C973 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 03/27/1985 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#285-295 OL, NUDOCS 8504010032 | |
| Download: ML20100C973 (10) | |
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UNITED STATES OF AMERICA A10:17 NUCLEAR REGULATORY COMMISSION C
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Cr' Before the Atomic Safety and Licensing Board In the Matter'of
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THE CLEVELAND' ELECTRIC
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Docket Nos.-50'440 O l_
ILLUMINATING COMPANY, ET g.
50-441 o (Perry Nuclear Power Plant,
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Units 1 and 2)'
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APPLICANTS' ANSWER TO OCRE " MOTION FOR A CONTINUANCE" ON ISSUE NO. 8 Pursuant to the Licensing Board's order given during the prehearing telephone conference of March 22, 1985 (Tr. 2134),
Applicants file their written answer to Intervenor Ohio Citi-zens for Responsible Energy's ("OCRE's") motion for a continu-ance of the evidentiary hearing on Issue No. 8, concerning hy-drogen control.
Motion for a Continuance, dated March 15, 1985
(" Motion").
OCRE in its Motion initially requested that the hearing on Issue No. 8 be continued to June 3, 1985.
ld,. at 1.
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' Based on discussions between Applicants' counsel and OCRE Rep-resentative Susan Hiatt following the March 22 conference call, Applicants and OCRE have agreed that April 30, 1985 would be the appropriate date on which to commence evidentiary hearings on Issue No. 8.
Although we believe that this agreement moots OCRE's request for a continuance until June 3, because all P"!J8ir ago
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9 parties have not.' agreed to the April 30 date, we present below
_our arguments onLthe merits of OCRE's Motion.
OCRE in its original Motion gave four basic reasons which, it asserted, justified a continuance to June 3.
First, OCRE
. pointed out that under the current schedule set by the Licens-ing Board for the evidentiary hearing, which is to begin April 9,.the two issues on which OCRE is lead intervenor - Issue No.
8 and Issue No. 16 (concerning diesel generators) - would be heard consecutively following hearing of the emergency planning contentions.
See Tr. 2090 (Prehearing Telephone Conference of March 13, 1985).. OCRE argued that "[i}t is virtually impossi-ble, with OCRE's limited resources, to adequately prepare a case on 2 diverse, complex, and technical issues without a i
break between hearings."
Motion at 1.
The Commission expressly considered such arguments in its Statement of Policy on Conduct of Licensing Proceedings.
There the Commission said:
Fairness to all involved in NRC's adjudica-tory procedures requires that every participant fulfill the obligations imposed by and in accor-dance with applicable law and Commission regula-tions.
While a board should endeavor to conduct the proceeding in a manner that takes account of the special circumstances faced by any partici-pant, the fact that a party may have personal or other. obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations.
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-5, 13 N.R.C. 452, 454 (1981).
Further, as the Appeal.
.w Qi
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Board has pointed out in the context of discovery, it is an in-tervenor's choice how many issues it wants to raise.
Pennsylvania Power and Light Company (Susquehanna Steam Elec-ftric Station, Units 1 and 2), ALAB-613, 12 N.R.C.
317, 339 (1980).
Having raised complex, technical issues, OCRE is obli-gated to adhere to a reasonable schedule for litigating those issues..-Applicants believe that commencing the evidentiary hearing on April 30, unlike OCRE's original proposed date of June 3, is consistent with the Commission's directive that in-tervenors meet their hearing obligations.
Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-212, 7 A.E.C. 986 (1974), the sole authority cited by OCRE in its Motion, clearly is distinguishable on its facts.
In that case, the intervenors were admitted to the proceeding on November 28, 1982, by an order that was not issued until December 15, 1972.
The Appli-cant filed answers to discovery on December 22, 1972; and the NRC Staff filed its answers on January 12, 1973.
The hearing commenced four days later on January 16, 1973.
Id. at 988-89.
In other words, the period of time from the intervenors' admis-sion to the proceeding until the start of the hearing was less than two months.
The Appeal Board ruled that "in the totality of circumstances," the intervenors "were entitled to some accomodation."
Id. at 992.
In the instant case,-however, OCRE was admitted to the t
proceeding three and a half years ago.
Discovery has been ongoing-for that entire time.
Moreover, the Appeal Board's de-cision in San Onofre was based on several other factors not ap-plicable to this' case.
For example, the Appeal Board found that' granting the intervenors' deferral request would not have
~
substantially-prejudiced any other party.
Id. at 993.
As dis-cussed infra, deferring the hearing to June 3 could well preju-
- dice Applicants by interfering with their current schedule for going above five percent power.
Given the " totality of circum-stances," an April 30 hearing date is a more than reasonable accommiodation to OCRE.
OCRE's second basic argument was that there is " additional information needed before Issue #8 can go to hearing."
Motion at 1.
OCRE referred to the continuing discovery of Applicants aon Issue No. 8; a number of outstanding Freedom of Information Act ("FOIA") requests to the Staff relating to hydrogen con-
-trol; unspecified "other items recently obtained from the Pub-lic Document Room pertaining to Issue #8"; and the Staff's SER supplement ("SSER") on Applicants' preliminary analysis under
'the Commission's new hydrogen control rule.
None of the above provides a justification for delaying hearing on Issue No. 8.
With regard to discovery, as counsel for Applicants stated during the March 22 conference call, Ap-plicants>have voluntarily agreed to make available certain
-4
O, lj information to OCRE in response to' discovery requests which Ap-plicants: initially considered, and still consider, objection-able as irrelevant and/orLuntimely.
Some of the information
.already'has been made available to OCRE.
That the information
.is; voluminous'is no reason to delay the. hearing to June 3.
Much of the_information - for example, QA documents relating to
- construction of the containment - could have been requested years ago.
Regarding OCRE's FOIA requests, counsel for the Staff stated during.the March 22 conference call that the Staff had already provided information in response to one of the four.
'FOIA requests attached to OCRE's Motion, and would provide in-formation in response to two others within a-day or two.
Tr.
2111-12.
The fourth FOIA request sought documents, which also had been' requested of Applicants pursuant to discovery, which Applicants have determined are not available.
Tr. 2112.
In" any event, most of the FOIA requests sought information relating to final compliance with the commission's hydrogen control rule, which by the terms of the rule itself cannot be litigated.
Those requests are therefore irrelevant to Issue No. 8.
Further, allowing FOIA requests to support delay of a hearing would give an intervenor an absolute right to delay in every. case, since such requests can be filed at any time.
See 10 C.F.R. S 9.8.
1
,?'
9-OCRE also referred'to "other items recently obtained from the Public Document Room pertaining to Issue #8" which "are vo-
- 1uminous and require extensive study."
Motion at 2.
- However, OCRE did not specify what these documents are, or how-they might relate to Issue No. 8.
Neither did OCRE indicate why the documents could not have been obtained or requested at an ear-
' lier date..
OCRE also~ pointed out that the Staff's SSER on Applicants' preliminary hydrogen control analysis will not be issued until April.
Staff counsel confirmed during the March 22 conference call that the Staff intends.to have the SSER ready on April'15 and will produce it at the hearing on April 16.
Tr. 2101.
An April 30 hearing date would provide OCRE ample time to review the SSER.
Staff counsel further stated that the Staff's testi-mony, which is to be filed April 1 (Tr. 2133),'will contain a summary of the Staff's evaluation to be provided in the SSER.
Tr. 2111.
At any rate, OCRE has been provided with Applicant's' preliminary analysis, which was served on the Licensing Board
'and~the parties on March 5, 1985.
OCRE's third argument was that OCRE is " negotiating" with
" potential" witnesses on Issue No. 8, one of whom "will not be available in April, but may be available later" (emphasis added).
Motion at-2.
OCRE also said it "needs time to negoti-ate with other witnesses who have recently been identified to
' OCRE."
Id. at 2-3.
However, on questioning by the Licensing
+
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-1 Board during the March 22 conference call, OCRE acknowledged that "it is possible but not very probable that we will put on an affirmative case and have witnesses."
Tr. 2099. The Licens-ing Board ordered OCRE to submit, by March 27, "an identity of the witnesses they intend to produce if the hearing is delayed; plus a proffer of the testimony that those witnesses would make."
Tr. 2133.
Applicants note that this' order is entirely justified in~ view of the fact that OCRE has had years to talk with potential witnesses on hydrogen control.
OCRE's fourth and final argument for a continuance to June 3 was that Applicants would not be harmed by the delay, since the new hydrogen control rule requires compliance only for operation above five percent power.
As counsel for Appli-cants stated during the March 22 conference call, the present Perry schedule calls for operation above five percent power by July 28.
Progress in preoperational testing and system turn-over is now running about 30 days behind that schedule.
Appli-cants are therefore currently looking at being ready to go above five percent power by August 27.
If the hearing were not to start until June 3, it is unlikely that all proposed find-ings could be filed, and a decision reached by the Licensing Board, by that time.
Thus, Applicants could well be harmed by OCRE's original request.
For all of the above reasons, taking into account the "to-tality of circumstances," OCRE's motion for a continuance of e
the hearing to June 3, 1985 should be denied; and the hearing on Issue 8 should be scheduled to begin April 30, 1985.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
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[/ !%'-t By:
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JAY.R. SILBERG, P.C.
t MICHAEL A.SWIGER Counsel for Applicants 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 DATED:
March 27, 1985
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y'l March 27, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of-
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and.2)
)
CERTIFICATE OF SERVICE
'this is to certify that copies of the foregoing "Appli-cants' Answer to OCRE ' Motion for a Continuance' on Issue No.
8" were served by deposit in the United States Mail, First
. Class, postage prepaid, this 27th day of March, 1985, to all those on the attached Service List, except for those parties identified by a single asterish, who were served by hand ~ delivery.
maxDQ.A*nn MICHAEL A.
SWIGER Dated:
March 27, 1985 l
a
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T UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
.THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, E_T _AL.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
' SERVICE LIST
- James-P. Gleason,' Chairman Atomic Safety and' Licensing 513 Gilmoure Drive Appeal Board Panel Silver Spring, Maryland 20901 U.S. Nuclear. Regulatory Commission Washington, D.C.
20555
- Dr. Jerry R. Kline Docketing and Service Section Atomic Safety and Licensing Board Office of the Secretary U.S.' Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission
. Washington, D.C.
20555 Washington, D.C.
20555
- Mr. Glenn O. Bright Colleen P. Woodhead, Esquire Atomic Safety and Licensing Board Office of the Executive Legal U.S. Nuclear Regulatory Commission Director Washington, lD.C.
-20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Alan S. Rosenthal, Chairman Ms. Sue Blatt sAtomic. Safety and Licensing.
OCRE Interim Representative Appeal Board 8275 Munson Avenue U.S. Nuclear Regulatory Commission Mentor, Ohio 44060 Washington, D.C.
20555 Dr. W. Reed Johnson Terry Lodge, Esquire Atomic Safety and. Licensing 618 N. Michigan Street, Suite 105 Appeal Board' Toledo, Ohio 44060
'U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Gary J. Edles, Esquire Donald T. Ezzone, Esquire Atomic Safety and Licensing Assistant Prosecuting Attorney s
- Appeal Board Lake County Administration Center U.S.. Nuclear Regulatory Commission 105 Center Street Washington, D.C.
~20555 Painesville, Ohio 44077 Atomic Safety and Licensing John G. Cardinal, Esquire Board Panel Prosecuting Attorney U.S. Nuclear Regulatory Commission Ashtabula County Courthouse
-Washington, D.C.
20555 Jefferson, Ohio 44047 n -.