ML19294B621

Response in Opposition to Chesapeake Energy Alliance 800213 Omnibus Motion.Motion Re Certification Insufficiently Specific.Motion Re Discovery Schedule Already Disposed of in ASLB 800220 Memorandum.Certificate of Svc Encl

ML19294B621
Person / Time
Site:	Three Mile Island
Issue date:	02/22/1980
From:	Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8003050160
Download: ML19294B621 (11)

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UNITED STATES OF AMERICA -rd '

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

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METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear }

Station, Unit No. 1) )

LICENSEE'S RESPONSE TO CEA OMNIBUS MOTION TO THE BOARD At the Second Special Prehearing Conference, on February 13, 1980, Chesapeake Energy Alliance (CEA) filed, inter alia, a pleading entitled "CEA Omnibus Motion To The Board" (" Omnibus Motion"). In that motion, CEA includes one general and five more specific requests for relief. Licensee responds herein to CEA's motions.

CEA first moves that "the Board, whenever its readings of the Commission's August 9th Order appears to limit the appro-priate due consideration in interpreting regulations and regulatory policies in a manner that will tend to inhibit the development of a full and adequate record, promptly seek the guidance of the Commission by certifying the matter to its attention." Omnibus Motion, p. 2. Such a motion is overly broad, so prospective as to be unripe, and otherwise 8003050IG5ep

insufficiently specific as to the precise relief requer,ted and the need for any such relief in the context of a particular situation. Licensee therefore opposes the motion, noting that CEA may in the future renew its motion with respect to a particular factual ~ situation, if appropriate, in accordance with the requirements of 10 C.F.R. Part 2.

. Discovery scheduling, the subject of CEA's specific motion number 1, was one of the matters addressed by the parties at the Second Special Prehearing Conference on February 13, 1980, Tr. at pp. 1516-17, 1538-42, 1548-1614, 1639-81, and the Board has ruled on the matter. Tr. at pp. 1640, 1656, 1677 and, especially, 1680-81. The Board's ruling disposes of CEA's motion, and is embodied in the Board's " Memorandum On Revised Discovery Schedule" (February 20, 1980).

CEA's second specific motion requests that the Board formally admit CEA's contentions 2(b), 2(c), 2(d) and 3, on which the Board had deferred ruling pending CEA's revision of those contentions after review of Licensee's revised emergency plan. CEA further requests " suitable provisions for discovery" upon admission of the contentions. In its " Interim Order on Late Filed Emergency Planning Contentions" (February 15, 1980),

at page 4, the Board rejects CEA's contentions 2(b), 2(c), and 2(d) for default. The Board's February 15 Order does not rule upon CEA's contention 3, which should be rejected for the same reasons that contentions 2(b), 2(c), and 2(d) have been rejected.

CEA's th:.rd specific motion is a request that "the Board re-consider (sic], and in the alternative, certify to the Commission, the matter of intervenor's funding." Omnibus Motion, p. 2. This matter has been raised and argued rceected-ly,1 and the Board has ruled on the subject at least twice.

See "Memcrandum and Order" (October 15, 1979), sl. op. at pp.

6-7 (denying CEA's " indirect request for intervenor funding" and disposing of requests of Sholly, Lewis and ECNP for intervenor funding) and " Memorandum and Order Denying Motions By TMIA and ANGRY" (October 31, 1979), nl. op. at pp. 1-2 1 See, e.g., " Supplement To Motion (of CEA] To Modify Memorandum and Order Setting Special Prehearing Conference" (September 28, 1979) (pp. 4-6); "NRC Staff Response To Motions Filed By CEA To Amend Memorandum and Order" (October 9, 1979)

(pp. 8-9); " Licensee's Answer To Motion To Modify Memorandum and Order Setting Special Prehearing Conference, And Supplements Thereto, By Chesapeake Energy Alliance, Inc."

(October 10, 1979) (pp. 4-5); "A.N.G.R.Y. Motion For certification To The Commission of Issues Regarding Intervenor Compensation, Clarification of Matters To Be Considered and For Relief From Requirements of 10 C.F.R. 2.708(d)" (October 5, 1979) (pp. 1-2); "NRC Staff Response To October 5, 1979 ANGRY Motion" (October 24, 1979) (p. 2); " Petition To Seek NRC Funding For Consumer Intervenors To Finance Witness Expenses" (undated, postmarked November 1, 1979) (filed with the Commission); "NRC Staff Response To Petition To Seek NRC Funding For Consumer Intervenors" (November 21, 1979)(filed with the Commission); " People Against Nuclear Energy Request For Financial Assistance To Support Intervention On The Issues of Psychological Distress" (November 29, 1979); November 30, 1979 letter from Ms. Aamodt to Board, at pp. 2-3; "Brief of Consumer Advocate of Pennsylvania In Support of Consumer Advocate's Petition To Seek NRC Funding For Intervenor Witnesses" (December 3, 1979)(filed with the Commission);

" Licensee's Response To Request By People Against Nuclear Energy For Financial Assistance To Support Intervention On The Issues of Psychological Distress" (December 11, 1979); "NRC Staff Response To PANE Request For Financial Assistance" (December 19, 1979); and " People Against Nuclear Energy Request For Expedited Decision on Request For Financial Assistance" (February 1, 1980). See also, First Special Prehearing Conference (November 8-9, 1979), Tr. at pp.97-104, 111-114, and 291-92ff.

(denying ANGRY's 10/5/79 motion that Board certify to the Commission the question of the appropriateness of financial assistance to all intervenors, regardless of the issues they raise). See also, " Certification To The Commission on Psychological Distress Issues" (February 22, 1980). In its October 31, 1979 Order, the Board noted:

In our memorandum and order of October 15 denying CEA's request (for intervenor funding] we observed that the Commission has expressed a policy against general intervenor funding . . . [I]n this proceeding, the Commission exercised its discretion to make an exception to that policy by holding open the possibility of intervenor funding on the issue of psychological distress . . . By expressly considering that possible exception the inference must be drawn that the Commission had considered the possibility of general intervenor funding and decided to limit its consideration to funding on psychological issues. For these reasons we believe that no purpose would be served by certifying the issues.

" Memorandum and Order Denying Motions By TMIA and ANGRY" (October 31, 1979), sl. op. at p. 2. This reasoning also supports a decision not to certify the question to the Commission now, since the Commission has already addressed the issue, both as a general policy matter and in the context of fashioning its " Order and Notice of Hearing" (August 9, 1979) in this proceeding.

CEA's reliance upon the " Memorandum For The Heads of Executive Departments and Agencies" (May 16, 1979) issued by the President and upon Executive Order 12044 (referenced in the Pcesident's Memorandum) as support for CEA's motion is

_4_

misplaced. As counsel for Licensee noted at the November 9, 1979 cession of the First Special Prehearing Conference, Executive Order 12044 is expressly applicable only to rulemaking proceedings and is - by its terms - limited to executive agencies, and is not applicable to independent regulatory agencies such as the NRC. Tr. at pp. 291-92 ff.

CEA's reliance upon Task IV.E.1 of NUREG-0660, " Action Plans For Implementing Recommendations of The President's Commission and Other Studies of TMI-2 Accident" (Draft) is similarly misplaced. First, NUREG-0660 is still in draft form and does not, as yet, reflect a firm change in any Commission policy on intervenor funding. Moreover, even the fiscal 1981 budget request referenced in Task IV.E.1 is for a " pilot program" which apparently does not contemplate funding of all intervenors in the hearing process. Finally, even a change in Commission policy, funding intervenors under certain circums-tances beginning in fiscal year 1981, is not necessarily indicative of any change in the reasoning underlying the Commission's August 9 Order in this proceeding limiting consideration of funding to those intervenors raising psycho-logical distress issues. It can be implied with equal ease that, if the Commission wishes to provide intervenor funding generally, or even general intervenor funding in this jroceed-ing, it will have the opportunity to expressly so provide in its revisions to NUREG-0660.

CEA's reliance upon "Three Mile Island: A Report To The Commissioners and To The Public" (January 1980)("the Rogovin Report") is also misplaced. The "Rogovin Report" recommenda-tion on inter"enor funding includes the observation that:

If citizens or groups contribute materially to rulemaking or licensing efforts by pressing significant concerns that are not being urged by other parties, they should be reimbursed for their expense . . . .

[Cjitizen and public interest groups general-ly have not been and will not be interested in very many genuine technical reactor safety issues, particularly in individual licensing proceedings . . . . Nonetheless, intervenors have made an important impact on safety in some instances . . . . [T]he risk of providing grants of public money to those who actually seek only delay can be very substan-tially reduced by strict requirements that (1) funding be conditioned upon the inter-venor propounding nonfrivolous issues that are not being effectively advanced by others "Rogovin Report," pp. 143-44 [ emphasis in the original). Thus, neither NUREG-0660 (in its draft form) nor the "Rogovin Report" support the sort of general intervenor funding which CEA urges in its motion. The reasoning expressed by the Board in its October 15, 1979 and October 31, 1979 Orders therefore stands, and no purpose would be served by certifying the issue to the Commission. Accordingly, CEA's motion should be denied.

Intervenor discovery from the Staff, the subject of CEA's specific motion number 4, was also discussed at the Second Special Prehearing Conference. Tr. at pp. 1550-52, 1612-37, and 1714-20. The Staff has indicated that it " intend [s] to answer every interrogatory that is submitted . . . as fully as

. . . (it] can and as soon as . . . (it] can; provided that they [the interrogatories] are not objectionable." Tr. at p.

1626. The Staff reiterated that it will not insist that intervenors " follow the regulations on how you get inter-rogatories to the Staff through the Board." Tr. at pp. 1626, also 1714-20. The Staff's commitment on the record obviates the premise for CEA's motion ("the possibility that [the Staff]

. . . will hide behind rules to limit the discovery it provides to Intervenors," Omnibus Motion, p. 2), and thereby eliminates any need for the Board's intervention in the matter.

CEA's final specific motion proposes "the promulgation of a uniform system of assigning document identification to all filings." Though CEA's proposal is an imaginativt cre, (and possibly workable for intervenors with experience in document management such as CEA's representative, a librarian), Licensee fears that the adoption of such a system would lead either to confusion as intervenors individually adopt differing abbrevia-tions for the titles of documents, or to delay, if some entity (such as the Board) were to assume responsibility for desig-nating a uniform abbreviation for the title of each of the hundreds of documents referenced in this proceeding. Moreover, the parties in this proceeding generally refer to a document or pleading only once by its full title in a filing, and thereaf-ter refer to the document or pleading by an abbreviated title, so that the greater.t advantage of the system proposed by CEA -

ease in citing a document previously referenced - is already realized by the ad hoc " system" currently used by the parties to the proceeding. Finally, CEA has not described how such a system would assist CEA "in organizing and keeping track of the documents in a systematic and effective manner." Omnibus Motion, p. 3. To the extent that CEA has such document organization problems, denial of its motion will not in any way restrict its right to organize its own documents as it proposes. For that matter, other parties will be free to adopt CEA's proposed system, if they so desire. Accordingly, because there is such potential for confusion and/or delay in CEA's proposed system, and because the greatest benefit of the proposed system is already being realized by the ad hoc

" system" currently used by the parties, Licensee opposes CEA's motion.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: A

• M / ./

Y ' G9 6rge F. Trowbridge/

Dated: February 22, 1980 February 22, 1980 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Dockti No. 50-289

) (Restart)

(Three Mile IJland Nuclear )

Station, Unit No. 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response To CEA Omnibus Motion To The Board" were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 21st day of February, 1980.

m ausA.d V Geofge F. Trowbridge /

Dated: February 22, 1980

UNITED STATES OF AMERICA NUCLEAR REGULATCRY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

SERVICE LIST Ivan W. Smith, Esquire John A. Levin, Esquire Chairman Assistant Counsel Atomic Safety and Licensing Pennsylvania Public Utility Comm'n Board Panel Post Office Box 3265 U.S. Nuclear Regulatory Commission Harrisburg, Pennsylvania 17120 Washington, D.C. 20555 Karin W. Carter, Esquire Dr. Walter H. Jordan Assistani Attorney General Atomic Safety and Licensing 505 Executive House Board Panel Post Office Box 2357 881 West Outer Drive Harrisburg, Pennsylvania 17120 Oak Ridge, Tennessee 37830 John E. Minnich Dr. Linda W. Little Chairman, Dauphin County Board Atomic Safety and Licensing of Commissioners Board Panel Dauphin County Courthouse 5000 Hermitage Drive Front and Market Streets Raleigh, North Carolina 27612 Harrisburg, Pennsylvania 17101 James R. Tourtellotte, Esquire (4) Walter W. Cohen, Esquire Office of the Executive Legal Director Consumer Advocate U. S. Nuclear Regulatory Commission Office of Consumer Advocate Washington, D.C. 20555 14th Floor, Strawberry Square Harrisburg, Pennsylvania 17127 Docketing and Service Section (21)

Office of the Secretary U. S. Nuclear Regulatory Commission W;shington, D.C. 20555

Jordan D. Cunningham, Esquire Karin P. Sheldon, Esquire Attorney for Newberry Township Attorney for People Against Nuclea T.M.I. Steering Committee Energy 2320 North Second Street Sheldon, Harmon & Weiss Harrisburg, Pennsylvania 17110 1725 Eye Street, N.W., Suite 506 Washington, D.C. 20006 Theodore A. Adler, Esquire Widoff Reager Selkowitz & Adler Robert Q. Pollard Post Office Box 1547 Chesapeake Energy Alliance Harrisburg, Pennsylvania 17105 609 Montpelier Street Baltimore, Maryland 21218 Ellyn R. Weiss, Esquire Attorney for the Union of Concerned Chauncey Kepford Scientists Judith H. Johnsrud Sheldon, Harmon & Weiss Environmental Coalition on Nuclear 1725 Eye Street, N.W., Suite 506 Power Washington, D.C. 20006 433 Orlando Avenue State College, Pennsylvania 16801 Steven C. Sholly 304 South Market Street Marvin I. Lewis Mechanicsburg, Pennsylvania 17055 6504 Bradford Terrace Philadelphia, Pennsylvania 19149 Gail Bradford Holly S. Keck Marjorie M. Aamodt Legislation Chairman R. D. 5 Anti-Nuclear Group Representing York Coatesville, Pennsylvania 19320 245 West Philadelphia Street York, Pennsylvania 17404