ML19290C529
| ML19290C529 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 01/08/1980 |
| From: | Gallo J, Steptoe P CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8001220054 | |
| Download: ML19290C529 (26) | |
Text
1/8/80
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$Y UNITED STATES OF AMERICA l
h,.4 NUCLEAR REGULATORY COMMISSION (O>
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ', '
p In the Matter of
)
)
CONSUMERS POWER COMPANY
)
Docket No. 50-155
)
(Big Rock Point Nuclear Power )
Plant)
)
Licensee's Response to Pleadings Filed by John A.
Leithauser on December 17, 1979 Consumers Power Company
(" Licensee") submits this response to a number of pleadings filed by Mr. John A.
Leithauser on December 17, 1979.1/
These pleadings include (i) a letter dated December 12, 1979 from Mr. Leithauser for the Northwest Coalition addressed to the NRC Commissioners, (ii) a motion, which is attached to the December 12 letter, styled as a " Belated Motion For Leave To File Pleading Out of Time" signed by Mr. Leithauser for himself and the North-west Coalition, and (iii) an unsigned statement of "Conten-tions of John A. Leithauser and the Northwest Coalition" filed under separate cover with the Licensing Board.
Licensee assumes that Mr. Leithauser's letter, motion and 1/
The time for filing a response was extpnded by Order of the Atomic Safety and Licensing Board
(" Licensing Board")
to January 8, 1980 (See Order dated December 26, 1979).
1787 25 s
gon1220'C' ft
statement of contentions were filed pursuant to the oppor-tunity provided by the Licensing Board for such filings during the prehearing conference held on December 5, 1979 (Tr. 66-68);
and hence we are treating these filings as if they were all addressed to the Licensing Board.
I.
Background
Pursuant to a notice published in the Federal Register (44 Fed. Reg. 43126) on July 23, 1979, a timely petition to intervene was filed by Mr. John A.
Leithauser on his behalf and on behalf of the Northwest Coalition.
On September 25, 1979, the Licensing Board ruled that the petition was deficient and tha't Mr. Leithauser and/or the Northwest Coalition would have until 15 days prior to the prehearing conference to submit an amendment to the petition curing the deficiencies.2/
No amendment was filed by either Mr. Leithauser or the Northwest Coalition by the date of the prehearing conference, December 5, 1979.
2/
The Licensing Board found that the petition failed to satisfy the interest requirements of 10 C.F.R. S 2.714 with respect to both Mr. Leithauser and the Northwest Coalition.
In addition, the petition was found to be deficient as filed on behalf of the Northwest Coalition because none of the members was identified, no documenta-tion was furnished which evidenced Mr. Leithauser's authority to represent the Coalition, and no affidavit was filed by a member stating an interest that might be affected by the proceeding.
See Memorandum and Order dated September 25, 1979.
1787 252
Mr. Leithauser attempted to pursue the intervention at the prehearing conference (Tr. 60-62); however pon objection by the Licensee and the NRC Staff, Mr. Leithauser was not permitted to participate further in the prehearing conference (Tr. 62-66).
Instead, the Licensing Board afforded Mr. Leithauser and the Northwest Coalition a further opportunity to supplement their petition with the proviso that now the requirements of 10 C.F.R. S 2.714 must also be met with respect to the tardy filing of petitions and contentions (Tr. 66-68).
The aforementioned pleadings were then filed by Mr. Leithauser on December 17, 1979.
II.
Summary of Argument The December 17, 1979 filings of Mr. Leithauser fail to satisfy the requirements of 10 C.F.R.
S 2.714, and therefore the petition to intervene filed by Mr. Leithauser and the Northwest Coalition should be dismissed.
In partic-ular, these pleadings fail to show good cause for the late filing of contentions and for the failure to comply with the Licensing Board's Order of September 25, 1979, nor do they establish that the other factors identified in 10 C.F.R.
S
- 2. 714 (a) weigh in favor of accepting these nontimely filings.
Even if the pleadings are judged on their merits, the peti-tion to intervene should be dismissed because the deficien-cies with respect to the Northwest Coalition's interest has i787 253
-4_
not been cured, and neither the Coalition nor Mr. Leithauser have submitted one or more contentions that satisfy the requirements of 10 C.F.R. S 2.714.
III.
The Petition To Intervene of John A.
Leithauser and the Northwest Coalition Should Be Dismissed For Failure To Perfect The Petition in a Timely Manner Mr. Leithauser and the Northwest Coalition (here-inafter referred to as simply "Mr.
Leithauser"), as indi-cated above, failed to file the amendment to their petition by the time required by the Licensing Board's Order of September 25, 1979.
The purpose of the amendment was to cure the interest deficiencies catalogued in the Licensing Board's Order and to provide the statement of contentions required by 10 C.F.R.
S 2.714(b).
Although such an amend-ment was filed on December 17, it was submitted some 30 days late, and more importantly after the prehearing conference rather than prior thereto as required by the Commission's Rules of Practice.
In this circumstance, section 2.714 pro-vides that a petition to intervene should be rejected unless a balancing of the following factors warrants granting the petition despite its untimeliness, to wit:
(i)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the petitioner's interest will be protected.
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(iii)
The extent to which the petitioner's parti-cipation may reasonably be expected to assist in devcloping a sound record.
(iv)
The extent to which the petitioner's interest will be represented by existing parties.
(v)
The extent to which the petitioner's parti-cipation will b paden tha issues or delay the proceeding Section 2.714 essentially codifies the Commis-sion's decision in Nuclear Fuel Services, Inc. and New York State Atomic and Space Development Authority (Wes t Valley Reprocessing Plant), CLI 75-4, 1 NRC 273 (1975).
See 43 Fed. Reg. 17798, 17799 (April 26, 1978).
West Valley stands for the proposition that:
Late petitioners properly have a substantial burden in justifying their tardiness.
And the burden of justifying intervention on the basis of the other factors in the rule is considerably greater where the latecomer has no good excuse.
1 NRC at 275.
This rule has been reemphasized many times by the Appeal Board.
- See, e.g.
Puget Sound Power and Light Company, et al.
(Skaget Nuclear Power Project, Units 1 and~2), ALAB-552, 10 NRC 1, 5 (1979).
In this case Mr. Leithauser has not shown a good excuse for his failure to file on time.
Further, his cause is not aided by a consideration of the
-3/
Mr. Leithauser's petition to intervene and his contentions are of course also judged by the requirements which apply to timely filings.
See e.g.
10 C.F.R.
SS 2.714(b),
- 2. 714 (d).
As described in part IV, infra, Mr. Leithauser's belated filings do not meet these requirements either.
1787 255
remaining factors.
For as discussed below, the application of these factors to the Leithauser petition gains no credit that could balance and offset the lack of good cause for the late filing of the amendment by Mr. Leithauser.
A.
Mr. Leithauser has not shown good cause to excuse his failure to file on time >
The excuses offered in Mr. Leithauser's " Belated Motion For Leave To File Pleading Out Of Time" are that he was unable to meet the deadline in the Licensing Board's September 5 Orderi/ due to an " excessively heavy personal schedule" and further that he had been " completely unacquainted" with NRC rules, regulations and practices.
Neither reason excuses the late filing by Mr. Leithauser.
Mr. Leithauser states that it was necessary for him to work in the employ of others for 280 hours0.00324 days <br />0.0778 hours <br />4.62963e-4 weeks <br />1.0654e-4 months <br /> during the peric September 1 through December 3.
But 90 hours0.00104 days <br />0.025 hours <br />1.488095e-4 weeks <br />3.4245e-5 months <br /> a month is hardly an excessive amount; indeed we suspect that if not all, of the other participants and Licensing
- most, Board members spent more time than this working on matters other than Big Rock Point in those three months.
Mr.
Leithauser also states that in September, he had to move both his home and his office, which required him to perform
-4/
The Licensing Board's Order required that the amendment to the Leithauser/ Northwest Coalition petition be filed 15 days prior to the special prehearing conference.
It should be noted that the conference was first scheduled for November 14, 1979, thereby establishing October 30 as the deadline for the filing of the amendment.
There-after, the conference was deferred to December 5.
Thus Mr. Leithauser was afforded an additional 20 days -- to November 20, 1979 -- for filing the amendment.
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. s
" numerous mechanical tasks" which he enumerates.
Mr.
Leithauser does not explain why if he moved in September he was unable to file contentions in October or November.
It is hard to understand how the itemized tasks so occupied all of Mr. Leithauser's waking hours for three months that he was prevented from even advising the Board and the other participants of his need for additional time.
As the Appeal Board bluntly stated in Kansas Gas and Electric Company, et al. (Wolf Creek Generating Station Unit No. 1), ALAB 424, 6 NRC 122, 125 (1977):
The time limits prescribed in Section
- 2. 762 (a ) are entitled to respect - as for that matter are the provisions of the Com-mission's Rules of Practice generally.
For this reason, we expect litigants to make every reasonabic effort to comply with those limits and, should additional time neverthe-less prove necessary, to make timely applica-tion for an extension.
In the event of some eleventh hour unforeseen development, a party may tender a document belatedly.
The tender must, however, be accompanied - as the Coali-tion's brief here was not - by a motion for leave to file out-oftime which satisfactorily explains not only the reason for the lateness, but also why a motion for an extension of time could not have been seasonably submitted.
This is so irrespective of the extent of the late-ness.
(emphasis added)
We note also that Mr. Leithauser is representing the North-west Coalition.
He does not explain why, if he was unable to do so, he could not have asked some other member of his organization to request additional time for him, or for that matter why some other member or members of the Coalition could not have submitted the required amendment to their petition to intervene.
7g7 g7
. Neither is Mr. Leithauser's statement that he had been " completely unacquainted" with NRC rules a sufficient excuse.
In the first place, the Licensing Board's Orders of September 25, 1979, October 11, 1979, and November 5, 1979 provided succinct advice as to what he would have to file a nd whe n.
Second, in August 1979, the NRC Staff sent Mr.
Leithauser the Commission's Rules of Practice and additional material which he might have needed to prepare the amendment (Tr. 68).
Moreove r, the Staf f counsel made numerous efforts to contact Mr. Leithauser, both by phone and by certified mail, to explain the requirements of the Commission's regu-lations as well as tc discuss his standing and contentions, and received no response whatsoever. (Tr. 63-64).
Mr.
Leithauser's explanation at the prehearing conference was:
I've not even had time to read the mail, I have merely had time to make a perfunc-tory review of it, and observe the pro-ceedings as they have been going along (Tr. 65).
In other words, this is not a case of ignorance of what the rules required; Mr. Leithauser chose to sit back and " observe the proceedings" rather than to participate because of what in his view was an " excessively heavy personal schedule."
As the Appeal Board has stated:
The orderly functioning of the admin-istrative process scarcely would be furthered were we to allow parties to our proceedings simply to ignore prescribed time limits whenever it suited their convenience to do so.
We theref ore must i787 258
. insist that those limits be honored.
This is true even if, as here, the party haopens to be represented by a non-lawyer.
In some respects, we do relax cur rules to accommodate the fact that a party may not have the benefit of counsel.
See Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-469, 7 NRC - (April 26, 1978), and cases there cited.
But no good reason exists why a double standard should obtain insofar as observance of deadlines is concerned.
A non-lawyer has no less capability than does a member of the Bar to apprehend
.when a document is due for filing (parti-cularly if he has been expressly so informec) and then to act accordingly.
Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No.
2.),
ALAB-424, 7 NRC 746, 748 (1978) (emphasis a dde d, footnote omitted).
The best that can be said for the excuses offered by Mr.
Leithauser is that his day-to-day routine was disrupted by the moving of his residence and office.
He may have had more time available to him if he had not moved, but it cannot be reasonably concluded that moving and his other activities prevented him from filing the necessary amendment on time.
Moreove r, it is reasonable to expect that other members of the Coalition could have and should have provided assistance.
Thus, good cause has not been shown to excuse the failure to file on time.
1787 259
B.
Mr. Leithauser's participation cannot reasonably be expected to assist in the development of a sound record, and his interest can be adequately protected and represented through other means, including through the participation of existing party intervenors.
Licensee consolidates its discussion of factors (ii), (iii) and (iv) of subsection 2.714(a)(1) under this section of its response because of the close interrelation among them.
We discuss first whether it can be expected that Mr. Leithauser will be able to contribute to the develop-ment of a sound record, and then explain that his interest can be protected by a limited appearance and the representa-tion of existing party intervenors.
Mr. Leithauser has not claimed any special exper-tise on any subject in the proceeding.
The contentions, as submitted by Mr. Leithauser, do not suggest any special understanding on the part of their drafter of the technical issues involved in this proceeding.
Moreove r, it cannot be expected that Mr. Leithauser will be able to present expert witnesses.
In view of his limited financial resources, Mr.
Leithauser is understandably silent on this point.
In short, Mr. Leithauser has of fered nothing to suggest any ability to contribute to developing a sound record in this proceeding.
The contentions submitted by Mr. Leithauser are examined infra to determine compliance with section 2.714, but even a cursory review indicates that many if not all of the contentions parallel the issues raised by Christa-Maria 1787 260
_11_
and Mr. O'Neill or the questions posed by the Licensing Board.
Leithauser contentions I, iia-d and Xa are encom-passed by contentions 1. and I.
filed by Christa-Maria and O'Neill respectively.E!
Likewise Christa-Maria contention 8.
and O'Neill contentions II.C. and E. embrace Leithauser contentions VIIIa. and b.
Mr. Leithauser's contentions III, IV, V and VI appear to be covered by O'Neill contention VII; and Christa-Maria contention 9.
covers Leithauser contentions IXa. and b.
Leithauser Xc.,
and Xb. and d.
are covered by O'Neill contentions VI and VIII respectively.
Thus, Mr. Leithauser's interest will be represented by the other party intervenors for as the Licensing Board and Mr. Leithauser both recognized it really would be more advantageous if he were able to consolidate his intervention with either or both of the existing party intervenors (Tr.
62).
Finally the ability of Mr. Leithauser to make a limited appearance (Tr. 67-68) provides a further means for him to protect his interest.
If in the unlikely event he does have a concern that is not being pursued by the parties or the Licensing Board, Mr. Leithauser can by way of a limited appearance request the Licensing Board to inquire 5/
The contentions filed by Mr. Leithauser should be com-pared with the restatements of contentions filed by Christa-Maria and Mr. O'Neill on November 20, 1979.
1787 261
into the concern.
This Licensing Board has shown no reluc-tance to direct the Licensee and the NRC Staff to address concerns posed by persons making limited appearances (Tr.
55-58), and we believe the Board would be equally responsive to any reasonable concern voiced by Mr. Leithauser.
C.
Mr. Leithauser's participation will delay the proceeding.
The addition of any party late in the proceeding will inherently cause undue delay to the process.
The validity of this premise is exemplified by the fact that the issuance of the Licensing Board's prehearing conference Order is being delayed by the need to consider belatedly the Leithauser petition subsequent to the prehearing conference rather than beforehand as contemplated by the Rules of Practice.
Mr. Leithauser attempts to minimize the impact of his tardy participation by asserting he "would have no difficulty in meeting the schedule" approved by the Licensing Board.
However, this falls short of a commitment on his part to do so, and the Licensing Board and the parties can hardly be assured by such a statement.
Indeed Mr. Leithauser's actions during the three months prior to the prehea ring conference as well as his statements at the prehearing conference and in his December 17 filings fail to reflect any appreciation on Mr. Leithauser's part that the business of this Licensing Board takes precedence over his personal schedule.
Indeed, Mr. Leithauser seems to assume the contrary.
i787 202
Licensee can only conclude that Mr. Leithauser's participation in this proceeding would be a chronic source of undue delay.
IV.
The Petition To Intervene of John A. Leithauser and the Northwest Coalition Should Be Dismissed Because It Fails to Meet the Requirements of 10 C.F.R. S 2.714 Should the Licensing Board disagree with the fore-going analysis and excuse the tardy action of Mr. Leithauser, the petition to intervene should still be dismissed because it fails to meet the requirements of section 2.714.
Specif-ically the deficiencies noted by the Licensing Board with respect to the interest of the Northwest Coalition and Mr.
Leithauser's authority to represent the group have not been cured.
Further neither Mr. Leithauser nor the Northwest Coalition have asserted a' contention that meets the proce-dural tests of section 2.714.
Thus the petition should be dismissed as to the Coalition because of a failure to satisfy the interest and contention requirements for intervention, and with respect to Mr. Leithauser because of the failure to satisfy the contention requirement.
These conclusions are discussed in detail below.
A.
Interest The September 25, 1979 Order of the Licensing Board stated that Mr. Leithauser's mention in his original petition of a spent fuel accident was not enough to estab-lish his personal interest and that of the Coalition with-out a further identification of any resourbh bhnef ph used
by him or a member of the Coalition that would be affected by a spent fuel accident.
In his letter of December 12, 1979, Mr. Leithauser suggests that the 40 acres of land he is working and his family's resort home are within 30 miles of the Big Rock Point Plant and that they would be affected by "any spent fuel accident."
He does not explain how this might occur in view of the fact the spent fuel pool for Big Rock Point is located inside containment; however, such an assertion would seem to cure Mr. Leithauser's previous deficient statement of interest.
However, the same charitable judgment cannot be made with respect to the Northwest Coalition.
No specific resource of any member of the Coalition is identified beyond a vague and general reference to homes of such members.
And the deficiency is not cured by reference to Mr. Beyer, an alleged member of NOMAD (Licensee has no record of the letter to the Chairman referred to by Mr. Leithauser).
Two esstential items of information -- Mr. Beyer's place of residence and his personal interest in these proceedings --
were not provided by Mr. Leithauser.
Moreover, confusion exists as to the identity of the Northwest Coalition.
In the petition to intervene, Mr.
Leithauser stated that the Coalition consisted of three separate groups, the Energy Resources Group of Petosky, the Northern Michigan Alternative Development of Traverse City, 1787 264
- and the Charlevoix Citizens for Energy Awareness.
But at the prehearing conference, Mr. Leithauser stated that the Northwest Coalition was an association of two northwest Michigan groups, Energy Resources Group of Petosky and NOMAD of Traverse City (Tr. 10).
In any event Mr. Leithauser fails to identify which, if any, of the two (or three )
constituent groups he belongs to, nor does he provide the necessary documentation establishing that he, a non-law er membe r, is authorized to represent any or all oZ chese organizations in these proceedings.
For all of these reasons, Mr. Leithauser has failed to demonstrate that the Northwest Coalition has the requisite interest needed to warrant participation in NRC licensing proceedings.
B.
Contentions.
Mr. Leithauser has submitted 11 contentions, all-of which are inappropriate in form or substance, or both.
While the Licensee and the NRC Staff would have met with Mr.
Leithauser as they did with Mr. O'Neill, to help him define acceptable contentions, Mr. Leithauser chose not to respond to the Staff's efforts to arrange such a meeting.
Under such circumstances, Mr. Leithauser's belated contentions should be j ged on their own merits and in accordance with the requirements of 10 C.F.R.
S 2.714.
Neither the parties nor the Board have any obligation at this late date to 1787 205
- rewrite Mr. Leithauser's contentions for him.
See common-wealth Edison Comoany (Zion Station, Units 1 and 2 ), ALAB-226, 8 AEC 381, 406 (1974).
Judged on their merits, all of Mr. Leithauser's contentions are defective.
Mr. Leithauser's Contentions I and II stcte:
I.
That grantin7 of licensees request is a defacto permit to indefinitely store spent fuel on site.
II.
(a)
That the Interagency Review Group Report on Nuclear Waste Management (1978), states that it may take until 1995 before a final underground stor-age site can be opened; and (b)
That Licensee has in hearings before the Michigan Public Service Com-mission, stated that Big Rock will be taken out of service in 2000; and (c)
That Licensee's proposal does not include plans for the five years from 1990 to 1995; and (d)
Therefore Licensees proposal is clearly deficient and should not be granted.
Presumably Mr. Leithauser is driving at the same issue - long term storage of spent fuel - raised in Christa-Maria Contention 1. and O'Neill Contention I.
Licensee has already explained that such contentions are inadmissible because the Commission has decided to deal with them in a generic proceeding and has i.,structed its Licensing Boards not to entertain such Isaues in individual licensing proceedings.
44 Fed. Reg. 61372, 61373 (October 25, 1979).
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~17-Also without me rit is Mr. Leithauser's further argument that Licensee's proposal is " clearly deficient" because the additional on-site storage capacity to be pro-vided by the pending license amendment application will only allow continued operation with full core discharge capability intil 1990, whereas Licensee intends to keep the plant in service until 2000.
The short answer to this is that the risk that sufficient storage capacity is not being requested at this time to allow continued operation beyond 1990 is an economic concern for the business judgment of the Licensee. The issue is not a safety or environmental concern within the responsibility of the NRC under the Atomic Energy Act of 1954 or NEPA.
See, Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155, 162-3 (1978).
Further, even supposing that issue were within the purview of the NRC, this Licensing Board's jurisdiction is limited to the proposal before it, and the unavoidable consequences of that proposal.
The Board's mandate does not extend to examining possible options for additional storage space which the Licensee may or may not invoke in 1990.5!
6/
The Report to the President by the Interagency Review Group on Nuclear Waste Management (March 1979) includes DOE's plan to provide away from reactor storage facil-ities "in the 1982-84 timeframe pending the availa-bility of an operational repository. "
IRG Report, supra, at 129.
Thus there may well be no need to re-quest additional on-site storage space to ensure con-tinued operation beyond 1990.
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See, Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2) and Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Station), ALAB 455, 7 NRC 41, 47-8 (1978), reversed on other grounds, State of Minnesota v. NRC, 602 F.2d, 412 (D.C. Cir. 1979).
Of course, any action taken in respect of this application does not commit the NRC to approve or disapprove any future application relating to spent fuel storage at Big Rock Point.
Mr. Leithauser's Contention III states:
(a)
That on June 27, 1979 Consumers Power Co. shipped twelve drums (of what was supposed to be solidified low-level radioactive waste) "in doubtful condition" to the NECO dump in Beatty, Nevada; and (b)
That three of the drums were leaking liquid waste ; and (c)
That at least one of these had been shipped with a cloth-like patch over what proved to be a source of leakage; and (d)
That the Beatty site was closed due to this incident; and (e)
That this accident is typical of Consumers Power Co. ; and represents numerous flaws in licensees equipment, practices, and administrative policies in regards to nuclear waste; and (f)
That due to these inadequacies on the part of licensee, the request should be denied.
There no nexus shown between the low-level waste transportation
.ident described and the subject matter of this proceeding.
If Mr. Leithauser is echoing Mr. O'Neil's 1787 268
_19-suggestion that this proceeding is an appropriate forum to undertake a sweeping review of Licensee's equipment, prac-tices and administrative policies in the entire Big Rock Point Plant, this is in error for the reasons stated by Licen-see in its written response to O'Neill Contentions VII and VIII7/ and in its oral argument at the special prehearing conference (Tr. 207-215).
Mr. Leithauser's Contentions IV through VII state:
IV)
That Consumers Power Big Rock plant does not have adequate technical capa-bilities to possess a sub-critical spent-fuel pool of plutonium enriched uranium oxide; and V)
That Consumers Power Big Rock plant does not have the administrative capa-bilities to possess a sub-critical spent-fuel pool of plutonium enriched uranium oxide; and VI)
That Consumers Power Co. does not have the economic stability to possess a sub-critical spent-fuel pool of plutonium enriched uranium oxide; and VII)
That because of the considerations raised in Nos. IV, V,
& VI, licensee's request should be denied.
These contentions are further examples of Mr.
Leithauser's attempt to conduct a sweeping review of the total operation of the Big Rock Point; and as discussed above with respect to contention III, such an inquiry is outside the scope of this proceeding.
Moreover, these 7/
See pages 16 and 17 of Licensee's Response to Contentions of John Patrick O'Neill II, dated December 1, 1979.
1787 209
contentions are classic examples of naked assertions without basis or specificity which do not meet the requirements of 10 C.F.R. S 2.714.
As the Commission itself stated in revising its regulations governing the hearing process "In order to put a matter in issue, it will not be sufficient merely to offer an unsupported allegation."
37 Fed. Reg. 15127, 15128 (July 28, 1972).
Mr. Leithauser doesn't even attempt to explain why the presence of " plutonium enriched uranium oxide" should make any difference in the degree or kind of technical capability, administrative capability, and economic stability required of the Licensee.
These conten-tions are patently inadmissible.
Mr. Leithauser's Contention VIII states:
(a)
That Consumers Power Big Rock plant is a G.E.
boiling water reactor (the fifth built in the country), and as such could experience a loss-of-water accident due to a reactor explosion (because the spent-fuel pool is located above the reactor).
This explosion could result from difficulties with the diffuser plate, or from other difficulties with the reactor; and (b)
That because a loss-of-water accident is credible for B.W.
reactors (i.e. in the spent-fuel pool), licensees request ought to be denied.
Mr. Leithauser's contention lacks specificity and basis and appears to raise matters outside the scope of this proceeding.
We are lef t to guess what " difficulties with the diffuser plate" or "other difficulties with the reactor" would cause a " reactor explosion", and how such an 1787 270
explosion would cause a loss of water accident in the spent fuel pool.8/
Mr. Leithauser's parenthetical explanation, "because the spent-fuel pool is located above the reactor" which is not true - does little to identify the mechanism he sees causing such an accident.
As noted above, section 2.714 requires an adequate showing of basis.
None is pro-vided by Mr. Leithauser.
Mr. Leithauser's Contention IX states:
(a)
That there does not presently exist safe, workable, and effective emergency plans for the areas within ten miles of the plant and within fifty miles of the plant; and (b)
That absent such plans, licensees request for a defacto ten year operating extension should not be granted, particu-larly in light of the increased hazards associated with the proposed fuel-compaction.
-8/
We note that a petition dated November 4, 1979 was filed in the Big Rock Foint docket pursuent to 10 C.F.R. S 2.206 which is being treated by the NRC Staff as a request for suspension of the operating license for the facility pending resolution of seven alleged safety issues.
Peti-tioners have demanded, among other things, " accountability for all diffuser fastener pieces, which if left within the reactor vessel could interfere with rod movement and could cause flew blockage."
There is also a Licensee Event Report entitled " Inlet Flow Diffusers" Number 79-20 dated June 22, 1979 and a supplement dated November 7, 1979, which document certain repairs performed on the diffuser plate in 1979.
Possibly Mr. Leithauser is re-ferring to one of those documents, but the relationship he sees between this subject and the spent fuel pool is not explained and is not apparent to Licensee.
1787 271
Contention IX raises an issue - emergency planning -
which is outside the scope of this proceeding, for the reasons stated by Licensee in response to Christa-Maria Contention 9.1/
Moreover, Mr. Leithauser's contention is clearly defective in form because it lacks specificity and basis as required by 10 C.F.R. S 2.714.
The contention merely makes the unsupported allegation that existing plans are not " safe, workable and effective", without elaboration, and without explaining how the quantity of spent fuel stored at the Big Rock Point plant affects the adequacy of the emergency plan.
Mr. Leithauser's Contention X states:
(a)
That at present there is no use for, nor means of disposing of spent uranium oxide fuel; and (b)
That Consumers Power Co. Big Rock plant is a non-commercial reactor of only sixty-three megawatts (M.W.) total capacity; and (c)
That due to "grandfathering" it is exempt from numerous fundamental safety features; and (d)
That is is known experientia11y that shutdown of Consumers Power Co.
Big Rock plant would in no way hinder the reliable delivery of electricity to Consumers Power Co. customers ; and (e)
That because of these (Xa-Xd),
licensee should not be allowed to store additional spent fuel on site.
9/
See pages 9-11 of Licensee's Response to Contentions of Christa-Maria, dated November 29, 1979.
1787 272
Subsection (a) attempts to raise issues which are the subject of the Commission's "reasonabic assurance" generic rulemaking and therefore excluded from this proceeding.
44 Fed. Reg. 61372, 61373 (October 25, 1979).
Subsections (b) and (d) echo Mr. O'Neill's contention X which argues that the power from the plant is not needed.
These contentions should be rejected for lack of specificity and basis, and for the reasons stated in opposition to Mr. O'Neill's Contention X.
See Tr. 217; Portland General Electric Company, et al. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 265-6 (1979).
Mr. Leithauser's subpart X(c) merely echoes Mr.
O'Neill's Contention VI in raising the possibility of
" grandfather exemptions" at the Big Rock Point Plant.
Mr.
Leithauser's contention is in form an unsupported allegation lacking specificity and basis.
In addition, it invites this Board to duplicate the work of the Staff in its ongoing Systematic Evaluation Program, which is outside the scope of this proceeding.
Mr. Leithauser's contentions X(e) and XI are mere conclusory phrases rather than substantive contentions.
1787 273
.. V.
Conclusion For the reasons stated above, the petition to intervene filed by John A.
Leithauser and the tiorthwest Coalition should be dismissed.
Respectfully submitted,
)
ns hG/llo Jo adh kk Prfilip S'f3ptoe [
- ~
Isham, Lincoln & Beale 1050 17th Street, N.W.
Suite 701 Washington, D.C.
20036 202/833-9730 Isham, Lincoln & Beale One First National Plaza Suite 4200 Chicago, Illinois 60603 312/558-7500 Dated:
January 8, 1980 1787 274
,a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
CONSUMERS POWER COMPANY
)
Docket No. 50-155
)
(Big Rock Point Nuclear Power
)
Plant)
CERTIFICATE OF SERVICE I hereby certify that copies of the following:
LICENSEE'S RESPONSE TO PLEADINGS FILED BY JOHN A.
LEITHAUSER ON DECEMBER 17, 1979 in the above-captioned proceeding was served upon the following persons by depositing copies thereof in the United States mail, first class postage prepaid, this 8th day of January, 1980.
Herbert Grossman, Esq.
Janice E. Moore, Esq.
Atomic Safety and Licensing Marcia E. Mulkey, Esq.
Board Panel Counsel for NRC Staff U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. Oscar H.
Paris John A.
Leithauser Atomic Safety and Licensing Energy Resources Group Board Panel General Delivery U.S. Nuclear Regulatory Levering, Michigan 49755 Commission Washington, D.C.
20555 John O'Neill, II Route 2, Box 44 Mr. Frederick J.
Shon Maple City, Michigan 49664 Atomic Safety and Licensing Board Panel Christa-Maria U.S.
Nuclear Regulatory Route 2, Box 108C Commission Charlevoix, Michigan 49720 Washington, D.C.
20555 1787 275
Barbara J.
Godwin Mrs.
W.
W.
Schaefer, Chairman 306 Clinton Radioactive Waste Management Charlevoix, Michigan 49720 Study Committee Lake Michigan Foundation Ms. Marcy Brown c/o 3741 Koehler Drive 401 Alice Street Cheboygan, Michigan 49721 Charlevoix, Michigan 49720 Ms. JoAnne Bier Atomic Safety and Licensing 204 Clinton Appeal Board Panel Charlevoix, Michigan 49720 U.S. Nuclear Regulatory Commission Mr. Bruce Janssen Washington, D.C.
20555 Box 1889 Lake Shore Drive Atomic Safety and Licensing Boyne City, Michigan 49712 Board Panel U.S.
Nuclear Regulatory Karin P.
Sheldon, Esq.
Commission Sheldon, Harmon & Weiss Washington, D.C.
20555 1725 I Street, N.W.
Suite 506 Docketing and Service Section Washington, D.C.
20006 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Judd L.
Bacon, Esq.
Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 m
Jo h Gplo of the Attorneys for Consumers Power Company
.1787 276