ML19262C331

Answer to ASLB 800109 Memorandum & Order Denying Intervenor Request for 10-day Extension for Filing Revised Evacuation Plans & Emergency Responses.Urges ASLB to Grant Original Request.Certificate of Svc Encl

ML19262C331
Person / Time
Site:	Three Mile Island
Issue date:	01/24/1980
From:	Kepford C Environmental Coalition on Nuclear Power
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002110264
Download: ML19262C331 (8)

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9a ENVIRONMENTAL COALITION ON NUCLEAR POWER /f c.o.r.ctor,: ur. coorgo Boornwne-R.D. e1, Peach Bottom, Pa. 17563 717 548-2836 N SM 3 or. Juein sonn, rue-433 ort.noc hInu., st.t. cosiT.%%t 'asa.237m

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NUCLEAR REGULATORY COMMISSION g &

N In the Matter of METROPOLITAN EDISON COMPANY, et al. Docket No. 50-289 (Three Mile Island, Unit 1) --- (Suspended License Hearings)

ECNP Intervenors' Answer to the Board's Memorandum and Order of January 9,1980 By a Memorandum and Order (M & 0) dated. January 9, 1980, this Board denied the request of ECNP for a 10 day extension of time to file its revised contention on evacuation planning and emergency response. In this i' & 0, the Board ordered that the revised contention,which was an amendment to a previously, properly, and timely file <*. intervention petition (filed March 29, June 29, September 4, and October 5, 1979.), should be instead " considered as a late filing under the standards of 10 CFR 2.714 (a)(1)." ECNP herein sutxnits its response to the M & 0 as outlined in 10 CFR 2.714 (a)(1).

1) The ECNP revised contention could not have been filed earlier.

The good cause for the late filing of the ECNP revised contention, which was filed on January 7, 1980, as set forth in the ECNP request, is discussed

<' in the ECNP request of December 19, 1979, itself. This discussion of December 19, 1979, is hereby incorporated by reference with this filing. However, those -

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reasons will be repeated here in summary fonn, for the Board's convenience.

(a) ECNP received the October 1979, version of the TMI-l Emergency Plan (TMI Plan) in November,1979. 1945 347 (b) Early in December,1979. ECNP received Amendments 6 and 7 to the TMI Plan, dated November 1979.

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(c)_ At about the same time, ECNP received an undated letter from Gilbert Associates, requesting confirmation of

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receipt of TMI-l Restart Report Amendments 6, 7 and'8.

. 1 (d) ECNP replied to Gilbert Associates that ECNP had only

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g i n eceived Amendments 1, 2, 6 and 7 to the Restart Report.

. 4 (e) In a-letter dated December 17, 1979, and received

- - December 19, 1979, counsel for the Suspended Licensee

- advised the Board that I am transmitting to you under separate coveracompleteanduptodatecopy]ofthe Licensee'sEmergencyPlanfor[TM*-1,....

We observe here that counsel for the Suspended Licensee here

- clearly states I am transmitting," not that he "has transmitted" the TMI Plan.

These factors led ECNP to believe that it did not have a complete and up to date TMI Plan. In fact, ECNP had every reason to believe, on the basis of the Gilbert Associates letter, that ECNP had an incer plete Restart Report (Amendment 6 contained part of the TMI Plan). Furthermore, the December 17, 1979, letter did not mention the TMI Plan that had been served much earlier upon the parties. Instead, this letter referred to one that was clearly in the process of being transmitted as of December 17, 1979. Thus, as of the December 20, 1979, de dline for a revised contention, ECNP knew it had an incomplete Restart Report, and was told that a complete and up-to-date TMI Plan was, as of December 17, in the process of being transmitted to the Board. But ECNP had every reason to ut believe, on the basis of the above, that it did have a complete and up-to-date 3

TMI Plan. As a result, on December 20, 1979, ECNP asked this Board for a 10 day extention so that ECNP could get some assurance that its efforts at reviewing the TMI Plan would not be wasted and that its amended contention would [

be complete. Since ECNP filed its request for an extention imediately upon m v

receipt of the December 17, 1979 letter, the request for an extention was cn indeed promptly filed, and could not have been filed earlier. Furthennore, a

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request filed much earlier would run the risk of being denied for being too early and thus, frivilous, premature, and unnecessary. In filings dated December 31, 1979, the Suspended licensee, and January 1, 1980, the NRC Staff both did not object to the request of ECNP for a 10 day time extention in which to file the revised contention.

2) There is no other means to fully protect the interests of ECNP.

ECNP submits that no other means exist whereby the interest of ECNP, its member groups and its members will be fully protected absent the participation of ECNP in the issues raised by ECNP in its amended evacuation planning and emergency response contention.

3) A sound record needs the full' participation of ECNP.

ECNP is attempting to be an active participant in these proceedings, so that it may assist in the development of a sound and complete record. Many of the issues raised in ECNP's revised contention have not been fully addressed by the other parties' contentions. Therefore, it is crucial that ECNP's revised contention be accepted notwithstanding the fact that the revised contention was not filed on time, in order to assist in developing a sound and complete record.

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We note, however, the extent of ECNP's participation in this proceeding

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has already been severely compromised by actions of other parties to this and other proceedings in which ECNP is a lawful participant -- actions which are beyond the control of ECNP and which have been taken by these other parties, apparently, solely for the purpose of thwarting needed public participation and for the related purpose of precluding an adequate ventilation of important health and safety issues. For example, as a result of the very limited discovery offered by the suspended licensee in this proceeding, ECNP has been functionally denied any discovery at all from the Suspended Licenseee. ECNP simply does not have

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the resources nor the person-power to spend days upon end at a site 100 miles from its headquarters and the location of its legal representatives. Nor does ECNP have the financial resources to buy even the most necessary documents from 1945 349

the suspended licensee. For the same reasons, ECNP has been denied acass even

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to the transcripts of this proceeding. Similarly, discovery upon the NRC Staff has been only slightly more successful. ECNP accepted on good faith the word of the NRC Staff counsel that the Staff would fully cooperate in fulfilling infomal discovery requests for documents, by forwarding actual copies of documents.

ECNP gave Staff Counsel Mulkey two lists of requested materials on November 14, 1979, with delivery promised in two or three weeks. These lists each contained about a dozen items. About January 18, 1980, ECNP received the first seven documents from the Staff with no indication as to when the rest would arrive.

Thus, ECNP has already been denied the access to these materials necessary for the preparation and presentation of its case. ECNP has made additional discovery requests of the Staff. However, the described experiences suggest that any further discovery requests upon the Staff may not be honored in time to be of any use, if the requests are honored at all. Thus, the ability of ECNP to parti-cipate fully and effectively in these proceedings has already been severely 1 mited by the suspended licensee and by the NRC Staff. S

4) No other parties have raised the issues that ECNP has.

tn In its revised contention, ECNP raises issues which ECNP believes have e cn

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not been adequately raised by other parties to this proceeding.

5) The proceeding will not be delayed but the issues will be broadened.

Since no party objected to the 10 day extention requested by ECNP, the proceeding has not been delayed by the 10 day request of ECNP. This is especially true since the revised contention has already been timely served (Jan. 7,1980) in the 10 day period for which an extention was requested and no party has been prejudiced.

The issue of the delay of the proceedings and the question as to the merit of granting the 10 day extension are therefore moot. Furthermore, since the contention in question is merely a revision of earlier, timely filed ECNP contentions, all parties had ample notice of the issues raised in the revised contention and no prejudice or delay occured or could have occurred merely because the final

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formulations of the revised contention could not be filed on time.

The granting of the 10 day extension requested will also broade, the issues by assisting in the development of a more complete record, as described in Sec. 2, 3 and 4 above.

ECNP agrees emphatically with the te-ire.of the Board to get on to the more substantive issues of this proceeding (M & 0, p. 3). ECNP has been struggling to do so in this and other ongoing proceedings to;which ECNP is a' party, but its goo'd faith efforts seem to be largely in vain. There seems to be no end to the filings which must be responded to in order to simply remain in any given pro-ceeding. The sheer number of these peripheral filings has virtually paralyzed ECNP during the past five months, thus preventing ECNP from prepvag for any upcoming proceeding, including the Susquehanna proceeding, the two remanded TMI-2

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proceedings (which were injected into the TMI-1 restart time period over the objections of the ECNP participants) and this proceeding. As a result, ECNP has

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been deprived of the right to prepare interrogatories for the Staff and the Sus-

pended Licensee, but har had to answer Staff interrogatories, and on January 21, 1980, received the first set of interrogatories from the Suspended Licensee. These last interrogatories simply cannot be addressed in any way until after the remanded TMI-2 hearings on February 25 and 26, 1980 have been completed. We note that in that proceeding, the ECNP participants have been totally precluded from the preparation of their testimony by the procedural requirements of this and the Susquehanna proceedings.

This filing, unfortunately, contributes further to the general preparational

. paralysis of ECNP. It was required in' spite of the mootness of the issue of the 10 day extension. In addition, the requiremer.t that this filing be made has caused an' extraneous issue to be introduced into the proceeding which would othentise not been present. That issue is whether or not ECNP, by this filing, has or has not complied with the requirements of 10 CFR 2.714(a)(1). Had the Board granted the 10 day extension requested by ECNP, this issue would have been abs f

the proceedings and thus would not have the potential to absorb ex,t,ra future time comittments for the rest of this proceeding. Since no party objected to the extention, the granting of the request would have oresented no arguable or appealable issue. Now, however, the potential for arguable and appealable issue has been injected into the proceeding over a moot issue.

ECNP's request for additional time neither was untimely or unorthodox.

For example, in a filing dated January 11, 1980, counsel for Newbr.rry Township TMI Steering Committee (TMI Comittee) describes confusion not unlike that ECNP faced regarding the wholeness of the Suspended Licensee's TMI-1 Plan. In that filing, counsel for the TMI Comittee describes how he obtair.ed from the Board Chairman a 5 day extention on December 18, 1980, the very day counsel perceived the revised contentions were due. On January 7,1980, counsel for U.C.S. made a request for additional time two days after a deadline. In the light of these actions by practicing members of the bar, ECNP submits that its request for additional time was timely, reasonable, and was not unorthodox at all.

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As required in the M & 0 of January 9, 1980 ECNP has discussed the items specified in 10 CFR 2.714(a)(1). However, ECNP moves that this Board grant the original request of ECNP for the additional 10 days. The granting of this motion would have the purpose of deleting from this proceeding the question of whether of not the 10 CFR 2.714(a)(1) requirements have been met. This issue for potential argument and appeal adds no substantive issue to the proceeding, since no party objected to the 10 day request in the first place, but may consume unnecessary time and effort in the future. Since the revised contention was served in the time requested, there is nothing to be gained by possible future g argument over a question rfow moot.

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Respectfully submitted, 4

, Os h.n/jsy:l.0)

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N January 24, 1980 Chauncey Kepford '

Representative of Intervenors

CERTIFICATE OF SERVICE ,

I hereby certify that copies of ECNP INTERVENORS' ANSWER TO THE BOARD'S MEMORANDUM AND ORDER OF JANUARY 9, 1980 have been served on the following by deposit in the U.S. Mail, first class, postage paid, on this 2.5'_ day of January, 1980:

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Ivan W. Smith, Esq. Docketing and Service Section Atomic Safety and Licensing Board Office of the Secret ary

,U.S. Nuclear Regulatory Coemission U.S. Pitclear 9egulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Walter H. Jord an James A . Tourtellotte, Esq.

881 W. Outer Drive Office of Executive Legal Director Oak Ridge, Tennessee 37830

• U.S. Nuclear Regulatory Comission Washington, D .C. 20555 Dr. Linda W. Little George F. Trowbridge, Esq.

5000 Hermitago Drive Shaw, Pittman, Potts & Trowbridge Raleigh, North Carolina 27612 1800 M Street, N. W.

Washington, D.C. 20006

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