ML20196D354

Licensee Response Opposing Susquehanna Valley Alliance/Tmi Alert Intervenor Motion for Extension of Time for Discovery.* Joint Intervenors Failed to Show Good Cause for Extension of Time for Discovery.Certificate of Svc Encl

ML20196D354
Person / Time
Site:	Three Mile Island
Issue date:	02/10/1988
From:	Baxter T GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#188-5586 OLA, NUDOCS 8802170084
Download: ML20196D354 (10)

Text

_ _ _ _ - _ __ _ _ _ _ _ _ _ _ _

g i 565$

g 0

February 10,1988 0CKETED USNRC UNITED STATES OF AMERICA B R312 P3 51 NUCLEAR REGULATORY COMMISSION QFrtCE CT ib?t'.i AM 90CKEitWG . 'R.7 l.

SEFORE THE'ATCMIC SAFETY AND-LICENSING BOARD EtuhDt 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 Response Opposing "SVA/TMIA Intervenor's Motion For Extension Of Time For Discovery" I. Introduction On January 6, 1988, the Licensing Board's "Memorandum and Order (Memoralizing Special Prehearing Conference; Ruling on Con-tentions; Scheduling)," dated January 5, 1988, was served upon the parties. The Memorandum and Order constitutes a special prehearing conference order issued under 10 C.F.R. S 2.751a(d).

The Memorandum and Order provided in part that "[t]he parties shall have until February 22, 1988 within which to initiate and complete discovery." On February 5, 1988, Licensee received "SVA/TMIA Intervenor's Motion For Extension Of Time For Discov-ery," dated January 31, 1988 1# (hereinafter referred to as 1/ Section 2.751a(d) provides that objections to special prehearing conference orders may be filed by a party within five days after service of the order. Although no certificate of ser-vice accompanied it, Joint Intervenors' motion appears to be un-timely and without explanation for its untimeliness.

880217oo84 g

DR 80o210 ADOCK 05000320 POR h

r O

"Motion for Extension"). Joint Intervenors seek an extension i until April 16, 1988 to complete discovery -- essentially.  !

Licensee opposes Joint Intervenors' motion. Three and one-l half weeks after the commencement of a six-veek discovery sched- '

.ule, Joint Intervenors ask for almost two additional months.  !

Moreover, they ask to be' allowed to engage in "follow-up" discov-ery as well., suggesting even more time (albeit undefined) is in.  ;

i fact desired. Not until February 8 -- a month into the six-week schedule -- did Joint Intervenors make any attempt to use the discovery period which had been allotted.

i The only grounds offered for Joint Intervenora' request is  ;

that "any assistance (Joint Intervenors' representative] might have in these proceedings will be on a volunteer basis." This is scant reason to request a doubling of the discovery period in a case where the Commission has stated expedition is.important.

There is also no discussion of what efforts Joint Intervenors have made to meet their obligations. Further, one is left guessing the extent of the volunteer assistance which Joint In-tervenors' representative is receiving. THIA and SVA have in the past been more than capable of handling lengthy and complex liti-gation. Their one discovery request to date suggests consider-able resources are available, when called upon. In sum, Joint Intervenors have not demonstrated good cause for an extension.

,2-

s' 6-II. Aroument ,

The Commission's Statement of Policy on Conduct of Licensing Proceedings and a well-established body of case law define the  :

obligations and responsibilities of parties to NRC proceedings.

The most illuminating decision on the subject was issued by the Licensing Board in the Ti4I-1 Steam Generator Plugging Criteria .

proceeding, where the Licensing Board stated: i It is a basic principle that "a-person who invokes the right to participate in an NRC proceeding also voluntarily accepts the obli- '

gations attendant upon such participation."

Duke Power Co. (Catawbc Nuclear Station, ,

Units 1 and 2), CLI-83-19, 17 N.R.C. 1041, '

1048 (1983). Moreover, "the fact that a party may have personal or other obligations or possess fever resources than others to de-  ;

vote to the proceeding does riot relieve-that party of its hearing obligations." Statement i of Policy on Conduct of Licensinc Proceed-inas, CLI-81-8, 13 N.R.C. 452, 454 (1981); f Philadelohta Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 N.R.C. 681, 730 (1985); Wisconsin Electric Power Co. (Point Beach Nuclear Plant,

, Unit 1), ALAB-696, 16 N.R.C. 1245, 1261 n.29  !

(1982). Finally, "(i}t is well-settled that a participant in an NRC proceeding should

• anticipate having to manipulate its resoure-  ;

es, however limited, to meet its obliga-tions." Wisconsin Electric Power Co. (Point '

Beach Nuclear Plant, Unit 1), ALAB-719, 17 N.R.C. 387, 394 (1983).

GPU Nuclear Coro. (Three Mile Island Nuclear Station, Unit 1),

LBP-86-14, 23 N.R.C. 553, 558-559 (1986).

In the present proceeding, petitions to intervene were filed by two organizations -- The Susquehanna Valley Alliance ("SVA")

l

and Three Mile Island Alert ("TMIA"). Frances Skolnick filed the

' intervention petition on behalf of SVA and was authorized by TMIA

~

to serve as its representative. Although Ms. Skolnick serves as the designated representative of SVA and TMIA with attendant re-sponsibility for their participation, the resources of those or-ganizations also must be imputed to her. See Point Beach, supraj ALAB-719, 17 N.R.C. at 394.

'~

Further, Joint Intervenors knowingly initiat2d this proceed-ing and assumed the attendant responsibility of party-status.

-Each organization has extensive' litigation experience. TMIA has years of experience, as a party to the TMI-l Restart, Steam Gen-erator Plugging Criteria, and Husted proceedings. Eit Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-9, 21 N.R.C. 1118 (1985), aff'd, Three Mile Island Alert v. NRC, 771 F.2d 720 (3d Cir. 1985), cert. denied, [

475 U.S. 1082 (1986); GPU Nuclear Coro. (Three Mile Island Nuclear Station, Unit 1), LBP-87-6, 25 N.R.C. 114 (1987); GPU Nuclear Coro. (Three Mile Island Nuclear Station, Unit 1), '

ALJ-87-3, 25 N.R.C. 345 (1987), certifled, ALAB-881, 26 N.R.C.

, slip op. (December 31, 1987). SVA brought a civil proceed- ,

4 ing in federal court against the operators of Three Mile Island. l See Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 485 F. Supp. 81 (M.D. Pa. 1979), aff'd in eart, rev'd in  !

, part, 619 F.2d 231 (3d Cir. 1980), cert, denied, 449 U.S. 1096 f f

i

i i k

i l

. - - ,,-v+w . - , . - ,- - .--y -- - , - - , - , . - - - - - , , . . - - - - - - . - . - - - . . , , - - . ,

r A

(1981). As such, Joint Intervenors are vell_ aware of the obliga-

.tions of litigation and voluntarily accepted them. [

f Joint Intervenors have sought to have certain' issues liti-l gated, so it is reasonable to expect them to shoulder the same

' burden carried by any other party to a Commission proceeding. i See Catawba, suora, CLI-83-19, 17 N.R.C. at 1048. In this re-  ;

gard, the Commission has made its position quite clear: "the ,

fact that a party may have personal or other obligations or pos-sess fever resources than others to devote to the proceeding does  :

not relieve that party of its hearing obligations." Statement of i

Policy, suora, CLI-81-8, 13 N.R.C. at 454.  ;

Thus, an intervenor in an ORC proceeding must  !

be taken as having accepted the obligation.of uncovering information in pub.\icly available  ;

documentary material. Statemet:ts that such material is too voluminous or written in too abstruse or technical language are inconsis-tent with the responsibiltties connected with participation in Commission proceedings and  ;

thus, do not present cognizable arguments.  !

Catawba, suora, CLI-83-19, 17 N.R.C. at 1048. ,

i Given the facts of this case, Joint Intervenors clearly have j not presented cognizable arguments for extending discovery two  :

months. Joint Intervenors filed all of the contentions to be  !

i

. litigated in this proceeding. They cannot now claim that they  ;

have overwhelmed themselves because too many of their contentions l Vere admitted. Nor are they dealing with a new issue. Joint In-tervenors have been involved with the water disposal issue since

-s- l t

r

1979. See Suscuehanna Valley Alliance, suora, 485 F. Supp. 81. i-In addition, the public has previously had the opportunity to re-view and comment on water. disposal issues. Over six years ago, I the NRC Staff-issued the Final Programmatic Environmental State-ment (PEIS) on-the TMI-2 cleanup. 52 Fed. Reg. 28,626 (1987).

SVA and TMIA filed comments on the draft PEIS. Further, on July 31, 1986, Licensee proposed a plan to evaporate the accident-generated water by forced heating. M. On December 29, 1986, the NRC issued for comment an updated Draft Supplement i No. 2 to the PEIS on the disposal of accident-generated water.

M. Again, both SVA and TMIA filed comments on the draft supple- (

ment. The Final Supplement became available in July 1987. See $

52 Fed. Reg. 27,091 (1987). Licensee's plan also have been the subject of several public meetings in the TMI area by the NRC's f Advisory Panel for the Decontamination of TMI-2 Representatives of SVA and TMIA have both attended and made presentations at those meetings. Thus, the Joint Intervenors' familiarity with  !

the issues should enable them to fulfill their discovery obliga-  ;

tions in a timely manner.

NRC proceedings should proceed "at an expeditious pace, con-  !

sistent with the demands of fairness."

statement of Policy, suora, CLI-81-8, 13 N.R.C. at 453. Consistent with this goal,

"(t]he Commission expects licensing boards to set and adhere to reasonable schedules for proceedings." M. at 454.

6 Specifically, the Commission ass advised licensing boards "to satisfy themselves that the 10 C.F.R. $ 2.711 ' good cause' stan-dard for adjusting terms fixed by the Board or prescribed by Part 2 has actually been met before granting an extenstion of time."

id.

An expeditious schedule is particularly appropriate in this proceeding. The Commission has specifically endorsed the safe and expeditious cleanup of TMI-2. NUREG-0683 Supplement No. 2 Final Report at viii (June 1987); see also GPU Nuclear Corp.

(Three Mile Island Nuclear Station, Unit 2), Okt. No. 50-320-OLA (unpublished Order. December 3, 1987). This does not mean that Joint Intervenors' procedural rights should be abrogated. Hov-ever, Licensee believes that the six veek discovery period granted by the Licensing Board reasonably balanced Joint Interve-nors' rights and needs against the propriety of an efficient pro-ceeding and the obvious public interest in minimizing the storage of radioactive liquids.

In this proceeding, Joint Intervenors have failed to show good cause for extension of time for discovery. At the prehearing conference, Licensee distributed a proposed schedule which was reviewed by the Licensing Board and the parties. Full argument was heard on the discovery schedule to be set. Given the relatively few contentions to be litigated in this proceed-ing, the Licensing Board established ample time for discovery in 7

i 6

its prehearing conference order. Joint Intervenors offer no sig-nificantly changed circumstances which would justify any exten-sion of discovery time. See Texas Utilities Generatino Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-82-18, 15 N.R.C. 598 (1982). Therefore, Joint Intervenors' Motion for Extension should be denied.

III. Conclusion For the reasons set forth above, Joint Intervenors' Motion for Extension should be denied.

Respectfully submitted, SHAW, PITTMAN, POTTS & TRCWBRIDGE e-- . r Thomas A. Baxter, P.C.

Ernest L. Blake, ?.C.

Maurice A. Ross 2300 N Street, N.W.

Washington, D.C. 20037 (202) 663-8000 counsel for Licensee Dated: February 10, 1988

_g.

h DXhE TF,0 MhHC ,.

February 10,J988 S 12 P3:42 j UNITED STATES OF AMERICA r Oh[bf(gy'i"g/gI-NUCLEAR REGULATORY COKMISSION BRANcy ,

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 i r

I hereby certify that copies of the foregoing Licensee's Re-sponse Opposing "SVA/TMIA Intervenor's Motion For Extension Of Time For Discovery" were served this 10th day of February, 1988, I

by hand delivery upon the parties identified with one asterisk and by U.S. mail, first class, postage prepaid, upon the other  ;

parties identified on the attached Service List.

~71 A.3 i.

Thomas A. Baxter, P.C.

y_ 4 3, '?

a f

~J' '

a --

.m J s' '~

.g .s t 7

, n ,' - 1: -,,

qe 4; y .

,j ' s~

,;. , "_, ,, ( g; ir ,'

4 UNITED STATES OF M ERIbA! . I 1 NUCLEAP"REGULATORY x - COMMISSION ,0*s '

s .

.m

.. /s.

, _p 7 .._  !>

b ,

,.f'

-BEFORE THE ATOMIC SAFETY AND LICENSING BOARD -

s.

> /

In the Matter of r , -A + . ;/

3,- )'s - "

, ) ,

Je GPU Nuclear Corporation )~ Docket No. 50-320-OLA.

1) (Disposal of Accident " _y-(Three Mile Island Nuclear ) Generated Water)  ;

Station, Unit 2) ) ,

E S_ERVICE LIST >

• Sheldon J. Wolfe, Esquire John F. McKinstry, 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 Skolnic'ks I, Atomic Safety and Licensing 2079 New Danville Pike Board Panel Lincaster, Pennsylvania -17603 U.S. Nuclear Regulatory-Commission '

'Ms. Vera L. Stuchinski Washington, D.C.' 20555 315 Peffer Street. _

Harrisburg, Pennsylvania cl7102

• Dr. Oscar H. PaPis Atomic Safety and Licensing Dr. William D'.' Travers' Board Panel Director, Three Mi.le Island U.S. Nuclear Regulatory ' Cleanup Project Directorate Commission P.O. Box 311 Washington, D.C. 20555 Middletown, Pennsylvania 17057 - ,

• Stephen H. Lewis, Esqui're Colleen P. Woodhead, Esquire-s Office of the General Counsel - -

U.S. Nuclear Regulatory Commission _ ,

Washington, D.C. 20555-Docketing and Services Branch Secretary of the Commission ,

U.S. Nuclear Regulatory Commissa.on Washington, D.C. 20555 1

.. , , _ - . , ,-