ML20108E116

Response to ASLB 841121 Order Directing Public Advocate to Show Cause Re Dismissal of Contentions.State of Nj Safety & Environ Concerns Essential.Prehearing & Hearing Schedule Rerequested.Certificate of Svc Encl

ML20108E116
Person / Time
Site:	Hope Creek
Issue date:	12/10/1984
From:	Remis S, Shapiro R CITIZENS FOR SAFE ENERGY, Environmental Coalition on Nuclear Power, NEW JERSEY, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
CON-#484-591 OL, NUDOCS 8412140199
Download: ML20108E116 (7)

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.. , USNRC il4 EC12' P508 UNITED STATES OF AMERICA - -

! NUCLEAR REGULATORY COMMISSION ,

BEFORE THE ATOMIC SAFETY AND LICENSINGNkIUfch In the Matter of ) . _ . . . . .

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t PUBLIC SERVICE ELECTRIC AND ) Docket"No. 50-354-OL GAS CO. , et al. , ) .,

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(Hope Creek Generating Station) )

INTERVENOR'S RESPONSE TO

THE ORDER TO SHOW CAUSE I. INTRODUCTION .,

On November 21, 1984, the. Board issued an order directing the Public Advocate to "show cause why he and his contentions should not be dismissed."

In The Matter of Public Service Electric and Gas Co., (Hope Creek Generating r

Station), Docket No. 50-354-OL (Nov. 21,1984) at 3. Accordingly, this Board scheduled a conference for December 17,1984, to consider this issue and to hear j

all pending motions.* .

i In this submission to the Board, the Public Advocate will briefly reiterate the reasons why this operating license proceeding should not be dismissed.

The Public Advocate will also briefly tddress the Board's question of whether

• The pending matters before this Board are the Public Advocate's petition for additional time within which to make expert witnesses available for depositions, the applicants' third motion to dismiss this proceeding, and j the applicants' amended motion to dismiss this proceeding. As we explained in response to the amended motion to dismiss, the Public Advocate's expert -

witnesses have been available for depositions for over two months. The applicants have taken absolutely no steps to notice depositions for any of

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these witnesses durinr this entire period.

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N.kkD 503

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t "the proliferating NRC schedules of professional witnesses should be permitted to cause delays in this OL proceeding."

II. ARGUMENT A. The Public Advocate submits that the applicants' motions to dismiss l

are completely without merit. As the Board has been advised, the staff agrees with the Public Advocate that the applicants' motions should be denied. With ,

out reiterating all of the points made in prior responses to the Board, we feel compelled to highlight several factors which warrant the Public Advocate's participation in the Hope Creek operating license proceedings. First, the Pglic Advocate has intervened for a specific and vitally important reason: to represent the public interest of all New Jersey residents in safe and environmentally sound nuclear generating facilities. Certainly, the participation of a State agency 5-that represents state-wide interests is always desirable, g. Public Service Co. of New Hampshire, (Seabrook Station Units 1 and 2), CI-77-26, 6 N.R.C.

535 (1975). Indeed, in order to ensure that these interests are heard, the Cammiasion and licensing boards have relaxed procedural requirements for

( state agencies. Id. at 537; In The Matter of Houston Lighting and Power Co.,

(South Texas Project, Units 1 and 2), LBP-83-26,17 N.R.C. 945, 947 (1983).

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L Therefore, the participation of the Public Advocate is essential to present i

important health, safety and environmental concerns of New Jersey citizens.

Second, there is no basis in the record for rhmiasal of this operating license proceeding. The applicants do not, and indeed cannot, demonstrate that the Public Advocate either refused to comply with the orders of this Board or took any actions to delay this operating license proceeding. For i

example, the Public Advocate promptly responded to this Board's August 10, 1984, order by explicitly stating his willingness to facilitate discovery and listing

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the names and addresses of the expert witnesses who would be available for depositions. (Intervenor's Response to the Board's Order of August 10, 1984, dated August 20,1984 at 1-2). At that time, the Public Advocate also sought a brief extension of time in accordance with the provisions of 10 C.F.R. 92.711. (Intervenor's Petition for Additional Time Within Which to .

Make Expert Witnesses Available for Depositions, dated August 20,1984).

I The Public Advocate advised this Board and all parties that his expert .

witnesses would be available by October 1984, and expressed a willing-ness "to be responsive to the interests of the Board in the prompt hearing of this matter." (Intervenor's Petition at 9). Additionally, the Public l

.i Advocate requested that the Board establish a comprehensive pre-hearing '

discovery schedule to govern these proceedings. These matters are presently I awaiting disposition by the Board.

Third, the applicants' motions fail to cite any precedent to justify-the extreme sanction of dismissal of the entire operating license proceeding in these circumstances. As the NRC staff has recognized, the short extension

• requested by the Public Advocate would neither delay the hearing date in this case, nor cause the applicants any prejudice. Therefore, there is no legal justification for dismissal. (Staff's Response to Intervenor's Petition and Applicants' Motion to Dismiss at 2-3).

Fourth, it bears repetition that while Public Advocate's expert witnesses have been available during the months of October and November and the early part of December, the applicants have failed to serve deposition notices upon any of these witnesses. It is beyond belief that the applicants can seriously request that this _ Board-dismiss this entire operating license proceeding simply because they have failed to prepare and serve deposition notices on the Public

. 0 Advocate's expert witnesses.* .

B. The Board has also requested that counsel address the question of "whether the proliferating NRC schedules of professional witnesses should be permitted to cause delays in this OL proceeding." Simply stated, our -

position is that these witnesses should not be treated differently, but that scheduling adjustments for " good cause" may be both proper and necessary for these witnesses under certain circumstances. The Public Idvocate, as inter- .,

venor in this proceeding, represents the important health, safety and environ-mental interests of the people of the State of New Jersey. To effectively fulfill this responsibility, he must seek and obtain the services of the best qualifief%

experts to assist him in that representation. The universe of such experts is, '

however, small. Because of the large number of proceedings before the Itomic Safety and Licensing Board, these experts often have scheduled commitments t

requidug their presence in other proceedings, thus making it impossible for them to be available elsewhere on those particular dates. This potential for scheduling conflicts can be eliminated by establishing a discovery and hearing schedule in the present case. This would permit all parties'to attempt to ensure the availability os expert witnesses for both depositions and hearings. If a scheduling conflict existed, counsel could work to resolve the conflict in a timely fashion. In this manner, the interests of the Board in expedited hearings and those of the parties in retaining the experts of their choice could be accommodated.

~* In order to clarify matters for the Board and all parties, the Public .

Advocate does not plan to call Dr. Robert N. Anderson as an expert in the Hope Creek operating license proceeding. The applicants, of course, have not demonstrated any prejudice from a lack of infonnation regarding Dr. Anderson's status; nor can they credibly ask for dismissal merely because they lacked information concerning the status of a witness who will not be '

- retained by the Public Advocate.

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CONCLUSION I For the above reasons, dismissal of this operating license proceeding i

r would be totally inappropriate under the circumstances of this case. The Public

[ Advocate seeks to protect the health, safety, and environmental interests L

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of New Jersey citizens in this proceeding. We also regognize that these l - proceedings must be conducted within a time schedule established by the L Board. The Public. Advocate, therefore, renews his request for a prehearing . .

-and hearing schedule that will enable all parties to address the merits of their contentions in an orderly and expeditious manner. -

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Respectfully subunitted, JOSEPH H. RODRIGUEZ PUBLIC ADVOCATE OF THE STATE OF NEW JERSEY By:

RICHARD E. snAPIRW By: cu O ~

s --fr / u susan C. REMIS 4

By:

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%4)m <.#4.30 R P. THURBE3 Attorneys for Intervenors Dated: December 10, 1984

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if[/aED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g E 12 P5G8

' BEFORE THE ATOMIC SAFETY AND LICENSINGh SECRE74p

"'fgERWU In the Matter of ) .

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PUBLIC SERVICE ELECTRIC AND ) Docket No. 50-354-OL GAS CO. , et al. ) ',','~ -

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(Hope Creek Generating Station) ) ,

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CERTIFICATE OF SERVICE -

I hereby certify that copies of "Intervenor'r Response To The Order - ..

s. .

To Show Cause", dated December 10, 1984 in the above-captioned matter have been served upon the following by deposit in the United States mail '

-on this 10th day of December,1984:

i Marshall E. Miller, Esq. Atomic Safety and Chairman Licensing Appeal Panel Atomic Safety and U.S. Nuclear Regulatory Licensing Board Panel Commission

, U.S. Nuclear Regulatory Washington, DC 2D555 Commission Washington, DC 20555 .

Docketing and Service Dr. Peter A. Morris Section Atomic Safety and Office of the ' Secretary Licensing Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Lee Scott' Dewey, Esq.

Dr. David R. Schink Offbe of the Executive Atomic Safety and Legal Director Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555

Richard Fryling, Jr., Esq.

Associate General Counsel Public Service Electric &

Gas Company P.O. Box 570 (TSE)

Newark, NJ 07101 Troy Conner, Jr. , Esq.

Conner & Wetterhahn 1747 Pennsylvania Ave., NW Suite 1050 Washington, DC 20006 -

Peter Hess, Esq.

Dept. of National Resources rnd Environmental Control Legal Office -

89 Kings Highway Dover, DE 19901

?w Mr. Ken Koschek '

Planning Group _ .,

Department of Environmental Protection State of New Jersey

<- CN-402 Trenton, NJ 08625

/N .

4tICHARD E. sHAPIRO '

December 10, 1984