ML20236T157

Memorandum & Order (Procedural Rulings).* Licensee Objections & Motions for Protective Orders Filed Respectively on 871030 & 1102 Denied.Served on 871123

ML20236T157
Person / Time
Site:	Limerick
Issue date:	11/20/1987
From:	Cole R, Ferguson G, Wolfe S Atomic Safety and Licensing Board Panel
To:
References
CON-#487-4923 87-550-03-LA, 87-550-3-LA, OLA, NUDOCS 8712010048
Download: ML20236T157 (7)

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DOCMETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION i ATOMIC SAFETY AND' LICENSING BOARD 7 p 23 A0 58 Before Administrative Judges. OFFICE Of SEcnETAsv DOCKETING A SEHVICC Sheldon.J. Wolfe, Chairman BRANC5!

Richard F. Cole -

George A. Ferguson -

EERVED NOV 2 51987 In the Matter of Docket No. 50-352-OLA

) '(TSIodine)

PHILADELPHIA ELECTRIC COMPANY )

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. (Limerick Generating Station, .

Unit'1) .) November 20, 1987

)

MEMORANDUM AND ORDER (Procedural Rulings)

MEMORANDUM I. Background IntheMemorandumandOrder(M&O)datedOctober9,1987 (unpublished), in admitting a consolidated contention of Mr. Anthony and AWPP, the Board ordered that each party should notify whether discovery.

would be conducted and whether the party would file a motion for summary disposition, and ordered that each such letter should be served, by .

personal delivery or express mail, in order that the Board and the other parties would receive the letter on or before October 21, 1987.

Depending upon the contents of these letters, the Board stated that in a EA2oggggtsqga a v

l subsequent Order it would set forth the due dates for the filing of sumary disposition motions and answers, or would schedule a hearing.

In-timely letters of October 12 and October 20, the Licensee and I the Staff, respectively, advised in substance that neither would seek l discovery, that Licensee would file a motion for sumary disposition, and that the Staff would respond to the Licensee's motion for summary disposition. Not having heard from Mr. Anthony and AWPP by the due date

.of October 21, in an Order dated October 26 (unpublished), the Board set forth a schedule for the filing of the Licensee's motion for summary disposition on November 23 and for the filing of answers by the other parties.

In a submission dated October 25, Mr. Anthony requested that the Licensee produce on-site and off-site radioactive iodine releases recorded between January 1,1987 and September 30, 1987. He noted that the documents sought to be produced had been earlier requested to be furnished in a letter of' September 10, 1987. j In a letter dated October 27, AWPP's representative, Mr. Romano, explained that he had not responded by the due date of October 21 because he had been in Russia. He moved for summary disposition of Licensee's request for the amendment and, alternatively, if the Board were to deny AWPP's motion, he stated that he would seek discovery.

On October 30, the Licensee filed its Objection to Intervenor Anthony's Request for Discovery and Motion for a Protective Order and on November 2, filed its Objection to Intervenor AWPP's Request for the Opportunity to File for Discovery and Motion for a Protective Order. On I

November 9, the Staff filed its Response to Robert L. Anthony's )

Discovery Requests and Licensee's Objections Thereto, and its Response to AWPP's Motion of October 27 and Licensee's Objections Thereto.

In two separate conference calls on November 10: (a) upon inquiry as to whether Mr. Anthony, by November 16, was going to file a motion to compel discovery pursuant to $2.740(f) in light of the Licensee's objection of October 30, the Board's secretary was told by Mr. Anthony .-

that he would file a motion to compel by that date, and (b) the Board's -

S secretary told Mr. Romano that the Board denied AWPP's October 27 motion for sumary disposition because it did not comply with the specific requirements of 92.749. See the Memorandum (Memorializing Two Conference Calls) dated November 12, 1987 (unpublished).

On November 10, Mr. Anthony filed an Objection to PECO Objection to Our Discovery and Request for Protective Order Dated October 30, 1987. .

He stated that "We ask the Board to consider that we have requested only essential material without which our appeal of the granting of a license amendment to PECO will be almost completely restricted and handicapped."

On November 12, AWPP filed its Objection to Licensee's Objection to

• Intervenor AWPP's Request for the Opportunity to File for Discovery and Motion for a Protective Order.

II. Discussion We have been and are deeply concerned about the Interveners' failure to comply with the Board's orders and with the Rules of Practice. As observed in the M&O of October 9,1987, Mr. Anthony and

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AWPP had not complied with 92.714 of the Comission's Rules of Practice  !

in that their written submissions (as well as their oral presentations l during the special prehearing conference) were unfocused. Mr. Anthony failed to address or show good cause in his submissions dated October 25 l

and November 10 why he had not timely responded by October 21, the due I date set forth in the M&O of October 9.1 His effort to have his earlier i

informal request for the production of documents dated September 10 treated as a timely request for. production does not serve to excuse his  ;

failure to comply with the due date of October 21, especially since the Board had previously denied that informal request in a letter of j September 16. In submissions of October 27 and November 12, AWPP attempted to show good cause why it had not timely responded by the due date of October 21 -- i.e. , that its representative, Mr. Romano, had left for Russia prior to receipt of the M&O dated October 9 and that he was unable to give responsibility to another AWPP member because he (Mr. Romano) had no knowledge of the Order. AWPP's excuse is untenable.

At all times when a party's counsel or representative plans to be away because of personal or other obligations, he or she should assign an i

1 In passing, as another example of Mr. Anthony's failure to comply with our Rules of Practice, we note that, despite the telephonic instructions given on November 10, Mr. Anthony's submission on that date failed to comply with 62.740(f) because it did not set forth arguments, other than conclusional ones, in support of the motion to compel.

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associate.to monitor the Board's issuances.2 Had Mr.' Romano made such

.an assignment, his associate could'have advised us that he was out of the country and the Board would not have issued the schedule set forth_

in the Order of.0ctober 26. Mr. Romano had been alerted that our M&O would be issued soon because,;at the conclusion of the special prehearing conference held on, September 29, 1987, the Board had advised that as soon as possible it would issue a memorandum and order which, inter alia, would order or_ permit discovery and set the times for summary disposition filings (Tr. 86).

After deliberating at length, the Board has in its discretion decided to deny the Licensee's objections and motions for protective orders filed respectively on October 30 and November 2. The Board, however, will not tolerate any further failures by the Interveners to 2

In Duke Power Company (Catawba Nuclear Station, Units 1 and 2),

CLI-83-19, 17 NRC 1041, 1048 (1983), the Commission stated:

We start with the basic principle that a person who e invokes the right to participate in an NRC proceeding also voluntarily accepts the obligations attendant upon such participation. See e. . , Consumers Power Co.

(Midland Plant, Units 1 an ),l LAB-691, 16 NRC 897 (1982). And as a corollary, since interveners have the option to choose the issues on which they will j participate, it is reasonable to expect interveners to shoulder the same burden carried by any other party to I a Connission proceeding. While we are sympathetic with the fact that a party may have personal or other obligations or possess fewer resources than others to devote to a proceeding, this fact does not relieve that party of its hearing obligations. Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981) (" Statement of Policy").

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comply with the Board's orders and with the Rules of Practice. As reflected in our Order, infra, AWPP shall have until December 22, 1987 within which to initiate and conclude discovery. Further, as reflected in our Order, we are granting Mr. Anthony's request for discovery dated October 25, 1987, the Licensee shall permit him to inspect and copy as soon'as is possible the documents sought to be produced, and this discovery must be completed by December 22, 1987. While recognizing-that the proposed amendment would change only the reporting requirements relating to iodine levels in the reactor coolant, we are granting Mr. Anthony's request for discovery since the information sought appears.

reasonably calculated to lead to the discovery of admissible evidence (see 92.740(b)(1)) -- the request for discovery is granted for the limited purpose of attempting to show that on-site or off-site radioactive iodine releases near or exceeding specification limitations have been solely caused by and have solely resulted from iodine activity in the reactor coolant, and, thus, that the downgrading of reporting requirements for iodine spikes would have an adverse effect upon the public health and safety.

ORDER For the foregoing reasons,

1. The Licensee's objections and motions for protective orders filed respectively on October 30 and November 2,1987 are denied.

2. AWPP shall have until December 22, 1987 within which to l initiate and conclude discovery.

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3. Mr. Anthony's request for discovery of October 25, 1987 is granted, the Licensee shall permit him to inspect and copy as soon as is possible the documents sought to be produced, and this discovery must bc completed by December 22, 1987. In lieu of producing the original data, the Licensee, absent objection by Mr. Anthony, may provide sumaries of the data to the extent they are reflected in semiannual radioactive effluent release reports which are required by Technical Specification 6.9.1.8.

4. Paragraph 2 of the Order dated October 26 -1987 is amended to provide that Mr. Anthony and AWPP may, on or before January 11, 1988, serve their answers supporting or opposing the Licensee's motion for sumary disposition to be filed on or before November 23, 1987, with or without affidavits, and the Staff shall serve its answer on or before January 18, 1988.

THE ATOMIC SAFETY AND LICENSING BOARD 1

bi -

Sheldon J. yylfe, Chairman ADMIN TRAT M E JUDGE Richard F. Cole f

ADh mISTRATIVE JUDGE Fd M h t)

Tieorge d. Ferguson

'l M-- 5 ADMINIS"RATIVEJUDGE(J v Dated at Bethesda, Maryland this 20th day of November,1987.

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