ML19256E331
| ML19256E331 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 10/17/1979 |
| From: | Mcgarry J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7911020109 | |
| Download: ML19256E331 (7) | |
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s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
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DUKE POWER COMPANY
)
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Docket No. 70-2623 (Amendment to Materials
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License SNM-1773 for Oconee
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Nuclear Station Spent Fuel
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Transportation and Storage at )
McGuire Nuclear Station)
)
APPLICANT'S OPPOSITION TO INTERVENOR CESG'S PETITION TO COMPEL APPLICANT TO RESPOND TO INTERVENOR' S DISCOVERY REGARDING CASE 3 CASK DROP On October 2,1979 Intervenor CESG filed-a Petition to Compel Applicant to Respond to Intervenor's Discovery Re-garding Case 3 Cask Drop.
The following serves-as Applicant's response thereto.
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The essence of CESG's Petition is that Applicant has allegedly provided conflicting positions in the record with regard to the absorption of energy in the case 3 cask drop scenario.-1/
CESG argues that such a circumstance warrants clarification and that it has sought discovery of Applicant to rectify this alleged conflict.
Applicant informed CESG of its position that the record had been closed on the cask 1/
Applicant has reviewed the record and does not agree that there is a conflict.
Applicant submits that the record speaks for itself and that CESG's characterization of such can be adequately treated in proposed findings and should not be a matter for further discovery and elaboration of the record.
1259 059 7911020[
drop contention, and thus, discovery at this late date was inappropriate.
As a result of Applicant's response, CESG filed the instant Petition seeking the Board to " compel Appli-cant to answer fully and completely CESG's discovery requests as they are stated".
To put this matter into perspective it is necessary to recount the development of CESG's cask drop contention.
Such was raised for the first time on September 4, 1979, in testi-mony CESG prefiled with the Board and parties.
At the hearing on September 11, 1979, both the Staff and Applicant argued that because of the lateness of the contention and the failure to show good cause, the proposed contention w;as inappropriate and should be dismissed.
The Board deemed that a potential health and safety question could be associated with the cask drop contention and thus, despite the lateness a,nd f ailure of h
showing of good cause, permitted the contention. \\ However, the Board made several observations with respect to the cask drop contention, which observations bear directly on the instant petition.
Specifically, the Board on several occasions noted that inasmuch as CESG was familiar with the subject matter of the cask drop contention, it should be fully competent to -
present its direct case and to conduct cross examination.
(Tr. 4358-59; see also Tr. 4352-53).
The Board held that any prolonging of the matter was unwarranted.
See Tr. 4354 wherein the Board stated:
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" CHAIRMAN MILLER:
Mr. Riley is being given lenience in not asserting a contention in a timely fashion, though he has been spared the necessity of showing the five points of tardy filing which, to be tech-We don't wish to nical, we could probably require.
be technical.
Having according him that right, we're not going to keep dragging that thing on.
I made that statement yesterday and today."
Continuing, the Board at Tr. 4358 stated that:
"We're tired of the pyramiding.
We think it's in-We think it's getting to the point of efficient.
unfairness.
"So we're not going to do any more pyramiding for the information, supplying of data or witnesses."
See also Tr. 4498.
It is Applicant's position that the matter of the cask drop has been fully explored on the record and that the dis-covery that CESG now seeks falls into the category of pro-longing the proceeding, contrary to the Board's above-refer-enced statements.
Applicant would also note that the discovery could have been obtained months ago or at the verig least, could have'been the subject of cross-examination in the September 1979 hearings.
Inasmuch as CESG has failed to take advantage of either of those options, it should not now be permitted a third bite at the apple.
With respect to the three matters upon which CESG seeks discovery, Item A pertains to the rail cask.
Applicant ob-jected at the September hearings to cross-examination on the CESG rail cask as being beyond the scope of the proceeding.
acknowledged it had "no problem" with Applicant's objection with respect to the rail cask and that indeed, it was aban-gh Tr. 4217-18.
Later doning specific reference to that matter.
licant's in the September hearings, the Board sustained App Tr. 4374.
Accordingly, objections concerning the rail cask.
h cope of Applicant maintains that this matter is outside t e s Applicant would note that whether a rail cask the hearing.
i l inasmuch would fall into the spent fuel pool is immater a his proceeding, as Applicant has stated that for purposes of t 2/
What is important is whether
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such a cask will not be used.
d this matter a truck cask will fall into spent fuel pool an has been fully treated.
i ion With respect to Item 3, Applicant provided the d mens tion of drawing requested which indeed does show the exact loca See Applicant's letter of September 21, the weir gate slots.
ii 1979 which is set forth as attachment 2 to CESG's Pet t jheweir i
Applicant would note that if information concern ngbyCbSG, suc gate was such'a " critical matter", as suggested d not as should have been pursued by CESG at an earlier date an an afterthought.
information pertaining to the With respect to Item C, b ve in rail cask was not provided for the reasons set forth a o As to the 25-ton truck cask, the matter discussion of Item A.
i See of criticality consequences was discussed at the hear ng.
So postured, the discovery questien should be Tr. 4427-4457.
CESG's reference to use of rail casks at Catawba has 2/
bearing on this proceeding.the scope of inquiry so as to include b
such in-
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quiry is limited to the spentcant will exercise with respect to tha facility.
As to q
Q3kL the particulars of a selected option, (9
drop analysis, such will be the subject of subsequent NRC review.
. viewed as a further attempt to cross-examine Applicant's position.
Such a course of action comes too late and is con-trary to the above-referenced pronouncements of the Board.
For the ra,ve stated reasons, Applicant submits that CESG's Petition should ce denied.
Respectfully submitte l[
h lA [
Y" J. Michael McGarry, III)/
Of Counsel:
William L.
Porter, Esq.
Associate General Counsel Duke Power Company October 17, 1979 A
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m_
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD _
)
In the Matter of
)
)
)
Docket No. 70-2623 DUKE POWER COMPANY
)
(Amendment to Materials
)
License SNM-1773 for Oconee
)
Nuclear Station Spent Fuel Transportation and Storage at ))
McGuire Nuclear Station)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's oppositiond to Intervenor CESG's Petition to Compel Applicant to Respond to Intervenor's Discovery Regarding Case 3 Cask Drop", date d
i upon the following by deposit in the United States mail th s October 17, 1979 17th day of October.
Mr. Jesse L. Ril'ey Marshall E. Miller, Chairman President Atomic Safety and Licensing Carolina Environmental Study Board Group
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U.sS. Nuclear Regulatory 854 Henley Place Commission Charlotte, North Carolina Washington, D. C.
20555 28207 Mr. Cadet H. Hand, Jr.
Edward G. Ketchen, Esq.
Director Counsel for NRC Regulatory Bodega Marine Laboratory Staff University of California Office of the Executive Legal O. Box 247 94924 Director P.Bodega Bay, California S. Nuclear Regulatory U.
Commission 20S55 Dr. Emmeth A. Luebke Washington, D. C.
Atomic Safety and Licensing Board William L. Porter, Esq.
U. S. Nuclear Regulatory Associate General Counsel Commission Duke Powe - Company 20555 Washington, D. C.
Post Office Box 33189 Charlotte, North Carolina 28242 9
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-mm
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.- Richard P. Wilson Chairman, Atomic Safety and Assistant Attorney General Licensing Board Panel State of South Carolina U. S. Nuclear Regulatory 2600 Bull Street Commission Columbia, South Carolina Washington, D. C.
20555 29201 Mr. Chase R.
Stephens David S. Fleischaker, Esq.
Docketing and Service Section Natural Resources Defense Office of the Secretary Council U. S. Nuclear Regulatory 1735 Eye Street, N.W.
Commission Suite 709 Washington, D.
C.
20555 Washington, D. C.
20006 Chairman, Atomic Safety and Licensing Appeal Board U.
S. Nuclear Regulatory Commission Washington, D.
C.
20555 MichaelMcGarry,II[
J.
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