ML20151E949

Licensee Answer to Intervenor Motion for Order on Production of Info on Disposal Sys Installation & Testing.* Intervenor 880330 Motion Should Be Denied Due to Insufficient Legal Basis.W/Certificate of Svc

ML20151E949
Person / Time
Site:	Three Mile Island
Issue date:	04/07/1988
From:	Baxter T GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#288-6058 OLA, NUDOCS 8804180018
Download: ML20151E949 (10)

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DOCKETED USNRC April 7, 1988 18 MH 11 P6 54 UNITED STATES OF AMERICA ^Frt E C; ?Ir:1Ar NUCLEAR REGULATORY COMMISSION DOCKEim4'. W Vlu.

MWi BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

GPU NUCLEAR CORPORATION ) Docket No. 50-320-OLA

) (Disposal of Accident-(Three Mile Island Nuclear ) Generated Water)

Station, Unit 2) )

LICENSEE'S ANSWER TO INTERVENORS' MOTION FOR AN ORDER ON PRODUCTION OF INFORMATION ON DISPOSAL SYSTEM INSTALLATION AND TESTING

'I. INTRODUCTION on March 30, 1988, the Intervenors served an undated docu-ment entitled, "SVA/TMIA's Motion to Request that the Presiding Judge Order GPU Nuclear to Provide Additional Information and Clarify Their Intentions to Install Test and Conduct Experiments-with the Evaporator Prior to Hearings." In the Motion, Interve-nors request the Atomic Safety and Licensing Board to issue an order directing Licensee to provide the following information:

1) a schedule for the installation and testing l of the evaporator '

2) prior identification and scheduling of all changes to be made as a result of installa-tion of the evaporator at the site

3) the objectives of any tests to be undertaken 8804100010 8804c7 PDR ADDCK 05000320 0 PDR

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4) the results and data which contributed to those results of any tests undertaken prior to purchase and which will be undercaken in the future, i

Motion (unpaginated) at 1-2. Licensee submits this answer in opposition to the motion, which is premature and without founda- -

tion in law or in fact.

II. ARGUMENT A. Intervenors Misunderstand the Schedule for the Insta'lation and Testing of the Disposal System, as It Relates to the Schedule of This Proceedino Without citation to any supporting factual authori.j, Inter-venors describe as fact their observation "that GPU intends to proceed with purchase, installation and testing prior to the hearings. . . . Motion at 1; id. at 2 (Licensee intends "to install and test the evaporator prior to receiving a change in their Technical Specifications."). GPU Nuclear has decided to proceed at its own risk with the design, fabrication, installa-tion and testing of the AGW Disposal System.1! As explained in 1/ Intervenors find it significant that the GPU Nuclear letter to the NRC of February 16, 1988 (served by counsel for Licensee on February 17, 1988) referred to the decision to begin final disposal system design and fabrication, whereas the March 17, 1988 press release states that GPU Nuclear, at its own risk, has authorized a vendor to begin design, fabrication, installation and testing of the system. There is no significance to this dif-ference. The February 16 letter transmitted to the NRC the Pre-liminary System Description for Accident Generated Water Dispos-al. The status of the design and fabrication effort was cited because it was viewed to be more directly relevant to the en-closed system description. The March 17 press release addressed the overall progress of and plans for the clean-up program at TMI-2.

e the February 16, 1988 letter from GPU Nuclear to the NRC, to delay design, fabrication, installation and testing of the system would otherwise add some nine months delay in commencing disposal of the water upon receipt of NRC approval. Delay in commencing water disposal would result in commensurate' delays in the overall completion of Accident Generated Water disposal and completion of the clean up effort at TMI-2.

GPU Nuclear has not stated, however, that it expects instal-lation and testing to precede hearings, as Intervenors claim.

While the vendor has been authorized to undertake those tasks, the hearings before this Board should be completed quite some time before installation and on-site testing of the disposal sys-tem.2# Licensee recently was called upon to address its schedule for completing design and fabrication (which generally precedes installation and testing). In their second-round interrogatories of March 15, 1988, Intervenors asked the question: "What is the expected date for completion of the final design and fabrication of the evaporation system?" Licensee's answer was: "GpU Nuclear does not have a firm date for completion of the final design and 2/ In its Memorandum and Order (Partially Granting SVA/TMIA Mo-tion for Extension), Feb. 17, 1988, the Board stated that " . . .

at the appropriate time in a subsequent Order, the Board will no-tify the Licensee and the Staff when they shall file their re-spective motions for summary disposition." The Board has not issued an order establishing a schedule for any further events in this proceeding. Consequently, Licensee can only address here its expectations on the likely schedule for any hearings neces-sary following rulings on summary disposition motions.

fabrication of the evaporator system, but expects that completion will occur in the fourth quarter of 1988."E/

Licensee certainly expects, and fervently hopes, that the Licensing Board will have decided the merits of Intervenors' con-tentions, either by granting summary disposition or issuing an initial decision, prior to the time when installation and testing of the AGW Disposal System might begin. In short, in their mo-tion Intervenors create the misimpression that it should now be expected (and is Licensee's expectation) that installation and testing of the AGW Disposal System will occur prior to any hear-ings in this proceeding.S' As a factual predicate for their mo-tion, Intervenors are, we trust, seriously wrong.

B. Intervenors Have the Information Which is Currently Available and Cannot Unilaterally Extend Discovery Turning to the specific information sought by Intervenors, it can be seen that they have what is currently available. As to the schedule for installation and testing (Item No. 1), Licensee stated in its March 30 interrogatory answers (quoted above), that .

there is no firm date for completion of final design and fabrica-tion of the evaporator system, but that completion is expected in 3/ Licensee's Answers to SVA/TMIA's Second Set of Interrogato-ries to GPU Nuclear, March 30, 1988, at 14 (Interrogatory 17).

Intervenors, of course, had not yet received this answer to their interrogatory when they filed the instant motion.

1/ Intervenors even go so far as to imply that summary disposi-tion may still be available following testing of the system. See Motion at 3.

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e the fourth quarter of 1988. It follows that there is no firm schedule for installation and testing, which would take place after design and fabrication.

Item No. 2 seeks information as to "all changes to be made as a result of installation of the evaporator at the site." Any information gained "as a result of installation" clearly will not be available until installation occurs.

Item No. 3 has already been provided. See Attachment A to Licensee's interrogatory answers of February 19, 1988. The pur-poses of the various tests are clear from that answer. If Inter-venors harbored any confusion about that information, they were obligated to seek clarification in the second round of discovery which they sought and were permitted by the Board.

No tests were undertaken prior to purchase of the evaporator system (Item No. 4, which also could have been asked in the sec-ond round discovery requests, since Intervenors then knew of the purchase). Obviously, the results of future tests are not avail-able.

The threshold for relevancy of information sought through discovery is relatively low, and no disputes on this standard have been fostered by the parties during discovery. The discov-ery process, however, does not extend throughout the course of a

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proceeding. It has an end. At Intervenors' request, the Board more than doubled the discovery period initially established.

Intervenors' motion constitutes a request to extend the discovery

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-period and, by inference, the resolution of the entire proceed-ing, solely on the grounds that the information 3 ht, in Inter-venors' view, relates to the issues under review. See Motion at

3. As discussed below, much more would be required to justify the extraordinary relief sought.

C. The Motion Lacks Any Legal Foundation and is Premature This proceeding is not yet at the evidentiary stage. When summary disposition motions are filed, Intervenors will be free to point out any deficiencies in the movants' presentations which might warrant denial of the motions in whole or in part. Simi-larly, following any evidentiary hearings, Intervenors may pro-  :

4 pose to the Board findings of fact and conclusions of law which challenge the sufficiency of the record. It is wholly premature, however, to seek a determination from the Board, at the conclu-sion of discovery, that information not yet available is neces-sary for this adjudication. This is particularly so where Inter-venors have not even speculated for the Board on any reasons why the information could be necessary for a decision on any of In-tervenors' admitted contentions. No contentions are discussed in the motion.

The Commission did not require GPU Nuclear to proceed with the evaporator disposal system in order for the NRC to act upon the subject license amendment request which would remove the dis-posal prohibition. The fact that GPU Nuclear has proceeded with 4

the system, at its own risk and in the interest of expediting completion of the cleanup, has already provided benefits to the adjudication in the form of more definitive information on design and plans for operation. It is untenable, houever, for Interve-nors to suggest that hearings must now avait the installation and-testing of the disposal system. Licensing Boards must decide operating license contentions in advance of construction comple-tion and power plant testing, and there is no reason why a simple evaporator system need be evaluated differently.

A Licensing Board's decision must be supported by reliable, probative and substantial evidence. 10 C.F.R. S 2.760(c). An operating license amendment application will be granted where there is "reasonable assurance" that the public health and safety will be protected upon issuance. The Board need not, as Interve-nors appear to suggest, address every developing piece of in-formation which might possibly "relate to" the issues. See Li-censing Board Memorandum and Order (Memorializing Special Prehearing Conference; Ruling on Contentions; Scheduling) at 18-19 (Jan. 5, 1988) (rejecting proposed Contention 7 which sug-gested delaying the proceeding to avait the completion of ongoing studies); Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant), ALAB-852, 24 N.R.C. 532, 546 (1986) (predictive findings, without system tests, are sufficient to pass upon the adequacy of siren systems).

CONCLUSION Intervenors' motion is apparently based upon a factual mis-understanding of Licensee's schedule and, if granted, would post-pone the adjudication until 1989. Needless to say, such a delay would be wholly unnecessary, inconsistent with the public inter-est, and contrary to the Board's several statements that the pro-ceeding will be moved along expeditiously, consistent with fair-ness. The motion seeks to extend discovery without good cause.

It also asks the Board to rule prematurely on the evidence neces-sary to resolve the admitted contentions. No legal basis has been advanced to support these extraordinary requests, and none exists. Intervenors' motion should be denied.

Respectfully submitted, i SHAW, PITTMAN, POTTS & TROWBRIDGE L _4. h Thomas A. Baxter, P.C.

Ernest L. Blake, Jr., P.C.

Maurice A. Ross Counsel for Licensee 2300 N Street, N.N.

Washington, D.C. 20037 (202) 663-8000 Dated: April 7, 1988 DOCKEiEO UbMRC April 7, 1988

'6 NW 11 P6:34 UNITED STATES OF AMERICA ,

NUCLEAR REGULATORY COMMISSION 0FFICE 00CXErim; c;yyg ff t lf >}

BRANcq BEFORE THE ATOMIC SAFETY AND LICENSING BOARD-In the Matter of )

)

GPU NUCLEAR CORPORATION ) Docket No. 50-320-OLA .

) (Disposal of Accident-(Three Mile Island Nuclear ) Generated Water)

Station, Unit 2) )

CERTIFICATE OF SERVICE s-I hereby certify that copies of the foregoing "Licensee's Answer To Intervenors' Motion For An Order On Production Of In-formation On Disposal System Installation And Testing" were served this 7th day of April, 1988, by U.S. mail, first class, postage prepaid, upon the parties identified on the attached Ser-vice List.

1 Thomas A. Baxter,' P.C.

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UNITED STATES OF AMERICA  !

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

GPU NUCLEAR CORPORATION ) Docket No. 50-320-OLA

) (Disposal of Accident-(Three Mile Island Nuclear ) Generated Water)

Station, Unit 2) )

SERVICE LIST Sheldon J. Wolfe, Esquire Richard P. Mather, Esquire Atomic Safety and Licensing Department of Environmental Board Panel Resources U.S. Nuclear Regulatory Commonwealth of Pennsylvania Commission 505 Executive House Washington, D.C. 20555 Harrisburg, Pennsylvania 17120 Mr. Glenn O. Bright Ms. Frances Skolnick Atomic Safety and Licensing 2079 New Danville Pike Board Panel Lancaster, Pennsylvania 17603 U.S. Nuclear Regulatory Commission Ms. Vera L. Stuchinski Washington, D.C. 20555 315 Peffer Street Harrisburg, Pennsylvania 17102 Dr. Oscar H. Paris Atomic Safety and Licensing Dr. William D. Travers Board Panel Director, Three Mile Island U.S. Nuclear Regulatory Cleanup Project Directorate Commission P.O. Box 311 Washington, D.C. 20555 Middletown, Pennsylvania 17057 Stephen H. Lewis, Esquire Adjudicatory File Colleen P. Woodhead, Esquire Atomic Safety and Licensing Board office of the General Counsel Panel Docket U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Docketing and Services Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 1

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