ML20198T066

Supports Licensee 860523 Motion for Reconsideration of 860519 Memorandum & Order Re Portions of Hearing & Discovery Schedule Established by ASLB & TMI Alert Opportunity for Addl Hearings.W/Certificate of Svc

ML20198T066
Person / Time
Site:	Three Mile Island
Issue date:	06/09/1986
From:	Wagner M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-482 OLA, OLA-2, NUDOCS 8606110283
Download: ML20198T066 (7)

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June 9, 1986 N o

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION , f['[ " [*. HI

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In the Matter of )

) Docket No. 50-289 OLA-1 GPU NUCLEAR CORPORATION, ) 50-289 OLA-2 ET AL. ) (Steam Generator Plugging

) Criteria)

(Three Mile Island Nuclear Station, )

Unit No.1) )

HRC STAFF RESPONSE TO LICENSEE'S MOTION FOR RECONSIDERATION OF MAY 19,1986 MEMORANDUM AND ORDER I. INTRODUCTION Licensee has moved 1 for reconsideration of this Board's May 19, 1986, Memorandum and' Order (Memorializing Prehearing Conference, And Ruling On TMIA's Time Extension And On Scheduling Matters) (" Memo-randum and Order"). Licensee seeks reconsideration of (1) portions of the discovery and hearing schedule established by the Board, and (2) certain aspects of the Board's rulings with respect to TMIA's oppor-tunity for additional hearings.

For the reasons set forth below , the Staff supports Licensee's Motion.

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Licensee's Motion for Reconsideration of May 19, 1986 Memorandum and Order, May 23,1936 (" Licensee's Motion") .

8606110283 860609 PDR ADOCK 05000289 G PDR hb07

II. DISCUSSION A. Hearing Schedule The hearing schedule set by the Board in its Memorandum and Order directs, inter alla, that discovery begin on August 15, 1986, that the hearing on all matters ripe for hearing be completed by December 19, 1986, and that all findings and reply findings be filed by mid-February, 1987. Under such a schedule, the Board notes, there is "no possibility" that the Board's decision will be issued before January 15, 1987, the date upon which Licensee states it would need a decision in order to implement TSCR 148 during its currently scheduled outage period of November 3, 1986 to March 13, 1987. Licenece's proposed alternative schedule, with discovery commencing July 7,1986, the hearing completed by October 31, 1986, and findings and reply findings filed by December 8, 1986, would allow f:" the possibility of a Board decision by January 15, 1987. Absent a decision by that time, Licensee asserts that it might have to remove from service certain steam generator tubes in order to resume power op-i cration at the conclusion of the outage. Licensee's Motion at 3. A favor-able Board decision, and Staff approval of the amendment request, would make such plugging unnecessary.

Licensee's alternative schedule takes into account, to a large extent, the three factors considered by the Board in establishing its schedule, as set forth in the Memorandum and Order: (1) the availability of confirma-tory test results, which will be analyzed in a Staff Supplemental Safety Evaluation Report ("SSER") to be issued within four weeks of the submit-tal of Licensee's test data (approximately January 31, 1987); (2) the avail-

ability of the Staff's Safety Evaluation Report ("SER") on or about July 31, 1986; and (3) TallA's other commitments until the end of July.

The Board has accounted for the first consideration, the availability of the confirmatory data, by its establishment of a " Zion type" procedural mechanism which would permit the completion of the hearing prior to the availability of the confirmatory test results but which would permit the intervenor to timely move for further hearings based on those test re-sults . 'Ihis consideration is unaffected by Licensee's proposed schedule.

The second consideration, the unavailability of the Staff's SER until July 31, 1986, is accounted for, to some extent, in Licensee's alternative schedule in that the discovery period now proposed by Licensee would conclude on August 21, 1986, three weeks after the SER has been made available to the parties. It is the Staff's behef that, if Licensee's pro-posed date for completion of discovery were extended one more week, until about August 28, TBlIA should be able to review the SER and direct discovery to the Staff in time to permit a response by the Staff before the termination of discovery on August 28. The rest of Licensee's pro-posed schedule would then also be extended correspondingly. Discovery of TMIA by the other parties, and discovery by TMIA, need not await the issuance of the SER. Under Commission rules and case precedent, com-mencement of discovery need not await the issuance of the Staff's SER.

See, e.g. ,10 C.F.R. I 2.740(b)(1); 10 C.F.R. Part 2, App. A, 5 IV(a);

Commonwealth Edison Co. (Byron Station, Units 1 and 2), LBP-81-30A,14 NRC 364, 369 (1981).

l Since discovery can properly proceed prior to the issuance of the Staff's SEE at the end of July, the Board's deferral of the commencement l

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e of discovery until August 15 to give TMIA a " period of grace" after con-clusion of an unrelated proceeding (Memorandum and Order, at 11) con-stitutes an unnecessary delay in the scheduling of this proceeding and in the ultimate disposition of TSCR 148 to the potential prejudice of the Li-censee. TMIA's commitment to another proceeding should not relieve it of its hearing obligations to the detriment of another party. See Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).

In sum, Licensee's proposed alternative schedule (with a one-week adjustment in the discovery period) would enable the Board to proceed to hearing on the issues ripe for adjudication and to evaluate those issues in a time frame that should not prejudice TMIA and is not prejudicial to Li-censee in that it preserves the possibility that TSCR 148, if granted, could be implemented during Licensee's next scheduled refueling outage.

The Board should reconsider its established schedule and adopt the schedule proposed by Licensee, adding an additional week to licensee's proposed discovery period and extending the rest of the schedule corres-pondingly.

3. Additional ifearings Licensee also takes issue with the Board's ruling that, within ten days after service of the Staff's SSER on the confirmatory testing, TMIA may file a notice requesting a limited additional hearing on matters raised by the confirmatory testing. Licensee requests that the Board reconsider and rule that the time in which TMIA may request additional hearing runs from the provision of test data to the parties, and not from service of the SSER. Licensee's Motion at 9. The Staff agrees that the activity which should trigger any request for further hearings should be the Licensee's

publication of its test results rather than the Staff's issuance of an SSER reviewing those test results. Cf. Duke Power Co. (Catawba Nuclear Sta-tion , Units 1 & 2), CLI-83-19, 17 NRC 1041, 1045 (1983) (institutional unevallability of a licensing-related document does not establish good cause for a late contention if other information was publicly available ear-ly enough to provide a basis for a more timely contention). The impor-tant information fcr purposes of filing new contentions or asking for further hearings are the test results , not the Staff's own analysis of those results in an SSER. Thus, the Staff supports the Licensee's motion in this regard.

Licensee also asks the Board to reconsider or clarify its ruling so that, in proposing additional contentions or further hearings upon receipt of the confirmatory test results after close of the record, TMIA must meet a " significance" test, and demonstrate that there is "an indication that the test data may change the result of the prior hearing." Licensee's Motion at 10. The Staff concurs in the view that these criteria for or-dering further hearings should be applied, even if the Board should de-cide that it might be appropriate to relex the traditional reopening standards somewhat in the circumstances of this case. The traditional reopening standards include the requirements that the new information on which the request to reopen is based has safety or environmental signifi-cance and a tendency to affect the results of the proceeding.

Pacific Gas and Electric Company (Diablo Canyon, Units 1 and 2),

CLI-81-5, 13 NRC 361, 362 (1981); Public Service Company of Oklahoma (Black Fox, Units 1 and 2), ALAB-573,10 NRC 775, 804 (1979); Public Service Company of Oklahoma (Black Fox, Units 1 and 2), ALAB-573, l

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10 NRC 775, 804 (1979); 1;ansas Gas and Electric Company (Wolf Creek Unit No.1), ALAB-462, 7 NRC 320, 338 (1978); Public Service Company of New llampshire (Seabrook , Units 1 and 2), A LAB-422, 6 NRC 33, 64 n.34; Vermont Yankee Nuclear Power Corporation (Vermont Yankee Sta-tion) , ALAB-138, 6 AEC 520, 523 (1973). Clearly , further hearings should not be ordered here on the basis of the confirmatory test data unless that data is significant and could affect the Board's decision.

Further hearings would otherwise serve no purpose.

In conclusion, the Staff supports Licensee in its request that the time within which additional hearings must be sought be designated to run from the time the confirmatory test data is available, and in its request ,

for clarification of the standards to be applied in ruling on any request for further hearings.

III. CONCLUSION For the reasons set forth above, the Staff supports Licensee's Motion .

Respectfully submitted,

/ ' Od Mary E. tagner Counsel r NRC Staff Dated at Bethesda, Maryland i this 9th day of June,1986 i

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

) Docket No. 50-289 OLA-1 GPU NUCLEAR CORPORATION, ) 50-289 OLA-2 ET AL. ) (Steam Generator Plugging (Three Mile Island Nuclear ) Criteria)

Station, Unit No.1) )

CERTIFICATE OF SERVICE I nereby certify that copies of "NRC STAFF RESPONSE TO LICENSEE'S MOTION FOR RECONSIDERATION OF MAY 19, 1986 MEMORANDUM AND ORDER" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterish, by deposit in the Nuclear Regulatory Commis-sion's internal mail, this 9th day of June,1986:

• Sheldon J. Wolfe, Chairman Bruce W. Churchill, Esq.

Administrative Judge Shaw, Pittman, Potts & Trowbridge Atomic Safety & Licensing Board Panel 1800 M Street, NW U.S. Nuclear Regulatory Cor1 mission Washington, DC 20f.36 Washington, DC 20555 Thomas Y. .&u, Esq.

• Dr. Oscar II. Paris Office of Chief Counsel Administrative Judge Depnrtment of Environmental Resources Atomic Safety and Licensing Board Panel 505 Executive House U.S. Nuclear Regulatory Commission P.O. Bcx 235'l Washington, DC 20555 IIarrisburg, PA 17120

• Frederick J. Shon Atomic Safety & Licensing Board Administrative Judge Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety & Licensing Appeal TMI Alert Board Panel 315 Peffer Street U.S. Nuclear Regulatory Commission Ilarrisburg, PA 17102 Washington, DC 20555 Louise Bradford Docketing & Service Section 1011 Green Street Office of the Secretary Ilarrisburg, PA 17102 U.S. Nuclear Regulatary Commission Washington, DC 20555 s

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As h Mary E. Wfgner f

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Counsel fdt NRC Staff [

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