ML20198J542
| ML20198J542 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/23/1986 |
| From: | Churchill B GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20198J524 | List: |
| References | |
| OLA, OLA-2, NUDOCS 8606030142 | |
| Download: ML20198J542 (14) | |
Text
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May 23, 1986 G lS!?'i, O
UNITED STATES OF AMERICA 3
NUCLEAR REGULATORY COMMISSION p
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4b BEFORE THE ATOMIC SAFETY AND LICENSING BOA
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In the Matter of
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Docket No. 50-289-OLA-1 l
GPU NUCLEAR CORPORATION, et al.
)
50-289-OLA-2
)
(Three Mile Island Nuclear
)
(Steam Generator Plugging Station, Unit No. 1)
)
Criteria)
LICENSEE'S MOTION FOR RECONSIDERATION OF May 19, 1986 MEMORANDUM AND ORDER I.
Introduction On May 19, 1986, the Atomic Safety and Licensing Board issued a Memorandum and Order (Memorializing Prehearing Confer-I ence, And Ruling on TMIA's Time Extension And On Scheduling Mat-ters) (hereinafter " Memorandum and Order").
Therein, the Board deferred the start of discovery until August 15; established a schedule for summary disposition, hearings, and the submittal of proposed findings; and ruled that within ten days after service of the NRC Staff's Supplemental SER (to be issued at the end of January, 1987), TMIA may file a notice requesting a limited addi-tional hearing on Licensee's confirmatory testing of steam fhk60$ho k
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generator tubes and need not meet the usual standards for reopen-ing the record.
Licensee requests reconsideration of portions of the discov-ery and hearing schedule.
Licensee asks that the Board modify its schedule so as not to foreclose the possibility of a decision in time to permit Licensee to implement OLA-1 during the next refueling outage.
The schedule and procedures discussed below would allow Licensee this possibility, and would at the same time satisfy the other interests the Board's Memorandum and Order sought to protect.
Licensee also requests reconsideration of certain aspects of the Board's rulings with respect to TMIA's op-portunity for additional hearings.
The substance of and bases for Licensee's requests are detailed below.
II.
Hearing Schedule TMIA, the sole intervenor in this proceeding, had requested a six-month delay in the proceedings because of the unavailability of representatives and the lack of resources to find others.
TMIA modified its request to a delay of about four and one-half months during the May 7, 1986 conference, where TMIA asked that the discovery period not start until August 15, 1986.
Tr. 139, 208.
The Board's Memorandum and Order granted TMIA's requested delay, noting that under the Board's established sched-ule, "there is no possibility that the Board could issue its de-cision before January 15, 1987."1/
Order at 14-15.
1/
Licensee stated at the May 7 conference that, under the cur-rent schedule for the next refueling outage, a decision was (Continued next page) - - _ _ - - _
The Board's present schedule effectively operates as a deni-al, in part, of Licensee's amendment request.
Assuming the mer-its of Licensee's application, if the license amendment cannot be issued in time for implementation during the next scheduled refueling outage, Licensee may have to unnecessarily remove from service steam generator tubes in order for the plant to resume power at the conclusion of the outage.
Accordingly, Licensee asks that the Board reconsider its May 19 schedule and adopt the following alternative schedule which Licensee believes will sat-isfy the Board's stated concerns while enabling the possibility of a timely decision.
July 7, 1986 Begin discovery August 21, 1986 End discovery August 27, 1986 File motions for summary disposition (express mail or hand service)
September 12, 1986 File answer to summary disposition motions (express mail or hand service)
September 22, 1986 Board conference call ruling on summary dispo-sition motions (Continued) needed by January 15, 1987, in order to implement the required licensing amendment.
The Staff stated that it probably could not issue the amendment before January 30.
Licensee has been and is in the process of attempting to revise the scheduled outage ac-tivities to accommodate a January 30 date of issuance, or possibly provide test data on a schedule to enable an earlier Staff determination. -- _-
October 10, 1986 File written direct testimony (express mail or hand service)
October 27, 1986 Begin hearing October 31, 1986 Complete hearing December 1, 1986 File simultaneous pro-posed findings (express mail or hand service)
December 8, 1986 File simultaneous reply findings (express mail or hand service)
In establishing its schedule, the Board considered three factors: (1) the availability of confirmatory test results during the refueling outage, (2) the availability of the Staff's SER by July 31, 1986, and (3) TMIA's other commitments until the end of July.
As to the first consideration, the Board resolved its con-cern by establishing a " Zion type" procedural mechanism whereby the hearing would be completed prior to the availability of the confirmatory test results, but pertinent test information would be expeditiously provided the intervenor, who would then have the opportunity to seek reopening of the record.
Licensee's proposed schedule would not upset this arrangement; either way, the hear-ing would be concluded prior to the availability of the con-firmatory test results, and Licensee's proposed schedule would at least afford Licensee a fighting chance for a timely decision.
With respect to the second consideration, the Board's de-ferral of discovery until August 15 appears to be predicated, at least in part, on the unavailability of the NRC Staff's SER until !
O' the end of July.
The availability of the SER is not a prerequi-site to discovery.
The Commission's Rules of Practice contem-plate discovery beginning "after the prehearing conference pro-vided for in $ 2.751a."
10 C.F.R. 5 2.740(b)(1).
See also 10 C.F.R. Part 2, App. A, 5 IV(a) ("Once the key issues in contro-versy are identified in the special prehearing conference order.
discovery may proceed.
.").
In licensing pro-ceedings, the 2.751a prehearing conference and the commencement of discovery invariably precede issuance of the SER.
This fact is also reflected in the Commission's Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C. 452 (1981).
The Policy Statement provides that "[t]he purpose of discovery is to expedite hearings" and recommends limiting discovery.
Id. at i
455.
It states, "Accordingly, the boards should manage and su-pervise all discovery, including not only the initial discovery directly following admission of contentions, but also any discov-ery conducted thereafter."
Id. at 456 (emphasis added).
Commission precedent is generally consistent with this the-sis.
In Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 N.R.C. 33 (1977), the Appeal Board observed, albeit in dicta, "as soon as contentions are identi-fied, discovery may begin.
Thereafter, the DES is completed.
." Id. at 67.
In Commonwealth Edison Co. (Byron Station, Units 1 and 2), LBP-81-30A, 14 N.R.C.
364 (1981), a Li-censing Board held that an applicant is entitled to prompt,
i discovery of the bases for an intervenor's contentions, and the intervenor cannot delay until the SER or other documents are filed.
Id. at 369.
A contrary result was reached in New England Power Co. (NEP, Units 1 and 2), LBP-78-9, 7 N.R.C. 271 (1978),
but that case involved unusual circumstances and is sui generis.
NEP involved a construction permit proceeding in which the appli-cant had not yet acquired ownership and access to the site, and as a result the availability of sufficient site-specific in-formation in the applicant's licensing documents was sharply challenged.
See id. at 292-94.
Because, pursuant to Commission rule, policy, and precedent, discovery is not predicated on the availability of the SER, the Board's deferral can only be justified on the basis of TMIA's commitment to other proceedings.
In deferring the start of dis-covery, the Board noted the TMIA representative's expectation that her involvement in another hearing would terminate at the end of July, and stated, "[ajllowing a fifteen (15) day period of grace to enable Ms. Bradford to review the record, the new sched-ule, as set forth in the Order, infra, among other things, directs that discovery shall begin on August 15 and shall be com-pleted no later than September 29, 1986."
Memorandum and Order at 11.
Such a commitment to another proceeding, however, is not grounds for delaying discovery.
Commonwealth Edison Co. (Byron Station, Units 1 and 2), LBP-81-30A, 14 N.R.C.
364, 373 (1981).
As this Board has observed, "the fact that a party may have g
personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations."
Memorandum and Order at 7-8, citing Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C.
452, 454 (1981); Philadelphia 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).
See 'alst Licensee's Response to TMIA's Motion for Exten-sion of Time (April 17, 1986).
For these reasonc, Licensee believes that deferral of dis-f covery until August 15 is unjustified and, given the fact that the schedule precludes a decision that might allow Licensee to implement OLA-1 during the next refueling outage, unduly prejudi-cial.
In developing its proposed sch'edule, however, Licensee has attempted to accommodate the interests of other parties to the extent practicable, and proposes " splitting the difference."
Licensee's proposal to commence discovery on July 7 and close on August 21 would give TMIA about two more months (until 14 days after July 7) to respond to Licensee's interrogatories (which TMIA has already had for about six weeks), and half the discovery period would occur after issuance of the SER.
The discovery period would remain 45 days as in the Board's Memorandum and Order.
O 1
o In all respects, with two exceptions, the proposed schedule would maintain the same intervals between events as are set out in the Board's May 19 schedule.
Licensee proposes that motions for summary disposition be filed on August 27, six days after the close of discovery.
The interval between discovery and summary disposition is shorter than that specified in the Board's Memo-randum and Order.
For all practical purposes, however, Licensee would likely be the only party affected by the reduction of this interval.
The six-day period should be adequate to reflect in the motions information obtained during discovery.
The second proposed exception is that the Board provide for filing proposed findings by all parties simultaneously on December 1 (31 days after the scheduled close of the record) by hand delivery or express mail.
Under this procedure, all parties would subsequently be entitled to file reply findings, which would be due on December 8.
This procedure for the simultaneous service of post-hearing findings is often invoked by licensing boards in cases where time is of the essence.
Licensee requests that the Board then consider the record and issue a decision if the record is sufficient.
The proposed schedule would give the Board the opportunity to first evaluate the evidence presented at hearing to determine whether that evi-dence by itself provides an adequate basis for a decision.
If the Board finds the evidence sufficient, a favorable decision would permit Licensee to implement OLA-1 during the next refueling outage.
4 IV.
Additional Hearings As stated above, the Board ruled that within ten days after cervice of the Staff's Supplemental SER, TMIA may file a notice requesting a limited additional hearing on Licensee's con-firmatory testing of steam generator tubes and need not meet the usual standards for reopening the record.
Licensee requests that the Board reconsider and rule that the time in which TMIA may re-quest additional hearing run from the provision of test data to the parties, and not from service of the SSER.
Licensee submits that this approach would equitably balance the various interests of the parties and is in keeping with es-tablished Commission policy.
The Commission's decision in Duke Power Co. (Catawba Nuclear Station, Units 1 and 2) CLI-83-19, 17 N.R.C. 1041 (1983) is illustrative.
There, the Commission bal-anced intervenors' hearing rights with the public interest in ef-ficient and expeditious administrative proceedings.
Based on this balancing, it determined that contentions should be based on an applicant's licensing documents (the FSAR and ER) and should not be deferred until issuance of the Staff's SER or DES.
An applicant's licensing documents provide the information an inter-venor needs to frame its contentions, and the possibility that a subsequent NRC Staff document might modify or moot a contention does not provide a reasonable basis for deferral.
Id. at 1048-49.
_g_
The case at hand is analogous.
The steam generator test data is the information pertinent to whether additional hearing is necessary.
Licensee will provide this information to TMIA promptly to permit TMIA to determine whether it should request such additional hearing.
TMIA should then shoulder its responsi-bility as an intervenor to review and act upon this technical in-formation.
See id. at 5048.
Since the data may be available in December, this procedure would provide Licensee at least the poe-sibility of a timely decision, even if the Board elects to delay its initial decision pending motion for additional hearing.
Under the proposed schedule, it is conceivable that the Board could complete the initial hearing, determine that further hear-ings are unnecessary, and issue a decision by January 15 -- the date by which Licensee needs an initial decision in order to im-plement OLA-1 during the next refueling outage.
Licensee also requests that the Board reconsider in part or clarify its ruling that TMIA need not meet the usual standards for reopening.
TMIA should still be required to satisfy the
" significance" test.
Its motion for further hearings should not be granted unless there is an indication that the test data may change the result of the prior hearing.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 N.R.C. 33, 81-82 (1977).
In the Zion proceeding, whose procedure this Board has adopted, the Board acted to ensure all parties had the opportunity to question "any materially changed -
e c.
l
-s circumstances" and did not dispense with reopening standards.
Commonwealth Edison Co. (Zion Station, Units 1 and 2), LBP-73-35, 6 A.E.C. 861, 865 (1973).
V.
Conclusion For the reasons stated above, Licensee moves the Board for reconsideration.
Licensee asks that the Board adjust the sched-ule of this proceeding as proposed above so as not to foreclose at this time the possibility of a timely decision.
The changes l
proposed above are reasonable, accommodate TMIA's interests and the Board's concerns, and undo the present de facto denial of OLA-1.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE 1
B'ftHfe W Wurchi1lV,.
l 4
P.C.
David R. Lewis Wilbert Washington II Counsel for Licensee Dated: May 23, 1986
t May 23, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket No. 50-289-OLA-1 GPU NUCLEAR CORPORATION, et al.
)
50-289-OLA-2
)
(Three Mile Island Nuclear
)
(Steam Generator Plugging Station, Unit No. 1)
)
Criteria)
NOTICE OF APPEARANCE The undersigned, being an attorney at law in good standing admitted to practice before the Courts of the District of Columbia, hereby enters his appearance as counsel on behalf of GPU Nuclear Corporation in proceedings relating to the above-captioned matter.
L a.
David R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1474 Dated: May 23, 1986
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket No. 50-289-OLA-1 GPU NUCLEAR CORPORATION, et al.
)
50-289-OLA-2
)
(Three Mile Island Nuclear
)
(Jteam Generator Plugging Station, Unit No. 1)
)
Criteria)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Motion for Reconsideration of May 19, 1986 Memorandum and Order" and " Notice l
of Appearance," both dated May 23, 1986, were served on the per-sons on the attached service list by deposit in the United States mail, postage prepaid, or where indicated by asterisk by hand de-livery, or where indicated by double asterisk by express mail this 23rd day of May, 1986.
t David R.
Lewis Dated: May 23, 1986
1 e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board Panel i
In the Matter of
)
)
GPU NUCLEAR CORPORATION, ~et al.
)
Docket Nos. 50-289-OLA-1
~ - -
)
50-289-OLA-2
)
(Steam Generator (Three Mile Island Nuclear
)
Plugging Criteria)
Station, Unit No. 1)
)
SERVICE LIST I
- Sheldon J. Wolfe, Chairman Docketing and Service Section (3)
Administrative Judge U.S. Nuclear Regulatory Commissior Atomic Safety and Licensing Washington, D.C.
20555 Board Panel U.S. Nuclear Regulatory Commission Three Mile Island Alert, Inc.
Washington, D.C.
20555 315 Peffer Street j
Barrisburg, PA 17102
- 0 scar H. Paris Administrative Judge
- Thomas Y. Au Atomic Safety and Licensing Assistant Counsel Commonwealth Board Panel of Pennsylvania U.S. Nuclear Regulatory Commission Dept. of Environmental Resources Washington, D.C.
20555 Bureau of Environmental Resources Room 505 Executive House
- Frederick J.
Shon P. O. Box 2357 Administrative Judge Harrisburg, PA 17120 Atomic Safety and Licensing Board Panel
- Louise Bradford U.S. Nuclear Regulatory Commission Three Mile Island Alert, Inc.
l Washington, D.C.
20555 1011 Green Street Harrisburg, PA 17102
- Mary E. Wagner, Esq. (2)
Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 4
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 I
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