ML19318A770
| ML19318A770 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 06/22/1980 |
| From: | Gallo J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006240128 | |
| Download: ML19318A770 (17) | |
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING B 7
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In the Matter of
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CONSUMERS POWER COMPANY
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(Big Rock Point Nuclear Power Plant))
CONSUMERS POWER COMPANY 'S RESPONSE IN OPPOSITION TO INTERVENOR'S EMERGENCY REQUEST Consumers Power Company
(" Licensee"), through its counsel, submits this response in opposition to the discovery request of Intervenors Christa-Maria, Joanne Bier and James Mills _(hereinafter referred to as "Christa-Maria " ) that the Atomic Safety and Licensing Board
(" Licensing Board") order Licensee to grant Christa-Maria access to certain premises.
Specifically, Christa-Maria requests that the Licensee be required to allow a designated representative access to (i) the Big Rock Point Plant site to observe the emergency plan exercise scheduled for 8:00 a.m.,
June 24, 1980, and (ii) locations not at the plant site, to the extent Licensee has authority to permit access, where it will be possible to observe.the emergency plan exercise.
Procedural Background Christa-Maria's Contention 9 is the central focus of the present controversy.
Contention 9, as revised by the
- icensing Board, states:
s 006s 401225 The expansion of the spent fuel pool re-quires a change in the emergency plan to take into account the significant increase in radioactive spent fuel that will be stored at the site.
This contention was admitted as an issue in this proceeding solely for purposes of discovery, with Christa-Maria having the burden to specify prior to the hearing the specific changes required in the emergency plan because of the in-creased fuel storage.
" Order Following Special Prehearing Conference, " pp. 19-20, dated January 17, 1980.
On February 1,
1980, Christa-Maria served a series of interrogatories on Licensee concerning the Big Rock Point Plant emergency plan.
See Interrogatories 9-1 through 9-15 and 9-31 of "Christa-Maria, Et al.,
Interrogatories To Consumers Power Company (Set I). "
Subsequently, Licensee and Christa-Maria agreed, through their respective counsel, to limit the scope of the Interrogatories to the still on-going activity of revising the existing emergency plan for Big Rock Point to meet the new directives of the NRC Staff following the accident at Three Mile Island (hereinafter referred to as the "TMI-2 acci-dent").
See letter from Gallo to Jordan dated February 27, i
1980.
Thereafter on May 17, 1980, Licensees provided substan-tial information and documents in response to Interrogatories 9-1 through 9-15 and 9-31.
Christa-Maria has not yet made the requisite showing of nexus that would support the admis-sion of Contention 9 in this proceeding.
The primary purpose of this emergency plan exer-cise*.is to test the sufficiency of the new post-TMI emergency plan procedures directed by the NRC Staff.
See letters dated October 10,'1979 from D. Eisenhut and March 10, 1980 from Brian Grimes to' licensees of operating nuclear power reactors. 'These directives are based on NUREG-0578, "TMI-2 Lessons Learned Task Force Status Report And Short-Term Recommendations, pages 13-15, A-57-59 and B-5 and NUREG-0654,
" Criteria For Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness In Support of Nuclear Power Plants," pages 61-65.
The Licensee pursuant to these directives immedi-ately undertook to revise the existing emergency plan for the Big Rock Point Plant to incorporate the new requirements.
A draft of the new or revised plan was sent to the NRC Staff l
for review on October 29, 1979.
A further revision was sent on March _ll, 1980, and the licensee is awaiting comments from the NRC Staff.
The Licensee understands that the Staff is using this exercise.as a means for developing comments with respect to-the March 11 draft.
Copies of the existing plan and the revised plan have been furnished to Christa-Maria.
The exercise also will satisfy the existing requirement in Appendix E to 10 C.F.R.-Part 50 with respect to the existing plan.
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As the foregoing clearly indicates, Contention 9 has been admitted _only_for purposes of discovery because Christa-Maria,_at the time of pleading contentions, was unable'to allege a factual nexus between this proceeding and the adequacy of the Plant's emergency plan.
The importance of this distinction becomes obvious upon a review of Christa-Maria's Emergency Request.
The first full paragraph of page 3 of the Emergency Request sets forth Christa-Maria's principal
-concern as the " harsh weather conditions and a limited road system (which] place severe limits on the ability to evacuate people safely. "
Thus, it seems clear that Christa-Maria is i
interested in determining the adequacy of the emergency plan generally rather than ascertaining the existence of any
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nexus xith this proceeding.
If the discovery requested by Christa-Maria is for this purpose, it is clearly irrelevant to the proceeding and no such discovery is permissible under the Commission's Rules of Practice.
Licensee anticipates that during the conference call requested by Christa-Maria for a ruling on this matter, her counsel may be able to clarify that the discovery request is for purposes of establishing-the necessary nexus with this proceeding.
Nevertheless, the Licensing Board should be mindful that nowhere in the Emergency Request is satisfac-
, tionL of the nexus ' requirement mentioned as the purpose of the request.
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r Factual Background An emergency plan exercise for 'he Big Rock Point Plant is scheduled to commence at 8:00 a.m. on Tuesday, June 24, 1980.
This activity is a coordinated exercise in-volving the emergency plans of four entities, viz., the State of Michigan acting through the State Police, Charlevoix County, Emmet County and the Licensee.
Each entity is respon-sible solely for the conduct of its plan.
The Licensee under-stands that the Michigan State Police have refused all re-quests from potential observers, including those from other states and public utilities.
Consequently, the Licensee has neither the authority nor the power to interfere with this decision or any other activity of the state or the counties.
The Licensee will use four areas in the conduct of its emergency plan exercise as distinguished from the states'and the counties.
Three of the sites are located on the property of the Licensee and one is not.
The first area and by far the most significant from the standpoint of an observer is the Onsite Technical Support Center located in a room adjacent to the control room at the Big Rock' Point Plant.
This room and surrounding area, the short-term onsite Technical Support Center,* is of very
-The exact location and size of the permanent Technical Support Center will be decided in conjunction with the NRC Staff during the next several months.
e small size affording space for less than 10 individuals.
It is expected that this capacity will be exceeded by necessary Licensee personnel (seven or eight individuals) and NRC and FEMA observers (two or three individuals).
The Onsite Technical Support Center is discussed in NUREG-0578, and is described as the " center outside of the control room that acts in support of the command and control function" for the Plant.
Thus the focus of Licensee's emergency plan activities, after federal, state and local authorities have been notified of an emergency situation at the Plant, is the handling of the in-plant emergency.
Evacuation and other off-site measures, with which Christa-Maria seems most concerned, are handled by state and local jurisdictions.
Christa-Maria will not obtain any notion of the sufficiency of the emergency plans of these entities by observing in Licensee's Onsite Technical Support Center.
The second area is located in a nearby building on the Big Rock Point Plant site, and it is called the Onsite Operational Support Center which is also provided for in NUREG-0578.
This area provides a place for auxiliary opera-tors and technicians and other support personnel to standby for further orders from the Shift Supervisor who is located in the Onsite Technical Support Center.
This location is a staging area for various support personnel who are to be on instant call to provide such assistance as those in the Onsite Technical Support Center think necessary.
e The third area is. located approximately 12 miles from the Plant site.at the Licensee 's Boeing City Service Center.
Part of the space in the Service Center has been designated _ as the "Offsite Emergency Operations Facility, "
and it provides generally the same functions as the Onsite
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Operational Support Center.
This facility is to serve also as'the location where reactor vendor-personnel and other engineers could' provide engineering analyses that might be needed to assist Plant personnel in coping with any in-plant emergency.
The final area is a " Media Center" to be located at the Holiday Inn in Petosky, Michigan.
Here members of the Licensee's public relations staff will provide accurate and current information concerning any emergency situation and will assist the media in understanding the technical nature of the information.
The Licensee has established this center as an integral part of its emergency plan to avoid - the types of media problems encountered during the TMI-2 accident.
It should be noted that the Regional Advisory Committee, which is chaired by Federal Emergency Management Agency
(" FEMA"), will hold a meeting on June 25 to provide a critique of the results of-the exercise, and comments with
' respect'to the performance by the state, counties and the
. Licensee.
We understand this meeting is a public meeting.
We also understand that the NRC Staff will be providing a written critique of the Licensee's performance of its plan.
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Finally, the-Licensee has retained a consultant, General Physics Corp., who will also provide Licensee with a written report-of its performance during the exercise.
Christa-Maria Is Not Entitled To The Type Of Discovery Requested Christa-Maria relies on section 2.741(a)(2) of the Commission's rules of practice as authority for the type of discovery sought in the instant case.*
That reliance is mis-placed, for the originators of the rule never contemplated the expansive form of discovery which Christa-Maria seeks here.
Section 2.741(a)(2) states:
Any party may serve on any other party a request to:
(2)
Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the pur-pose of inspection and measuring, surveying,-photographing, testing, or sampling the property or any designated object or operation there-on, within the scope of S 2.740.
This section is virtually identical in language to subsection (a)(2) of Rule 34 of the Federal Rules of Civil Procedure.
This subsection did not contemplate entry onto a party's property for discovery of intangible matters.
Rather, the i
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The Licensee notes that Section 2.741's procedural re-l-
quirements of a written service of discovery request l
followed by a 30 day period for the opposing party to i
respond have not-been met in this case.
Licensee does not I
question counsel's statement that he just learned of Christa-Maria's interest in observing the emergency plan exercise on June 19.
However, the question of whether or not Christa-Maria was aware of the exercise early enough to permit the orderly process to function is one Licensee has not had sufficient < time-to investigate.
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subsection was designed to provide access to real property
~in cases where its tangible condition was in issue, or access to such items as large, immovable machinery or structures in cases in which the condition or operation of such tangible items was in issue.
The Notes of the Advisory Committee on the 1970 revision of the Federal Rules described the inten-tion of this subsection as follows:
The inclusion of testing and sampling of tangible things and objects or operations on land reflects a need frequently en-countered by parties in preparation for trial.
If the operation of a particular machine is the basis of a claim for negli-gent injury, it will often be necessary to test its operating parts or to sample and test the products it is producing.
Fed. Rules Civ. Proc. Rule 34, 28 U.S.C.A.
(1980 Supplement)
(emphasis'added).
On site observation of an exercise under an emergency plan is completely intangible and not, therefore, within the purview of this rule.
Moreover, in a leading case interpreting Rule 34's ii i
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_prov s on relat ng to d scovery requests for entry onto property, the U.S. Court of Appeals for the Fourth Circuit held that, absent some showing of special need to overcome the burdens imposed, a trial court abused its discretion in ordering entry to a party's plant.*
Belcher v. Bassett In this case it appears that defendants did not effectively raise,'and it is clear that the court did not reach, the question of whether intangible discovery is permitted under this rule.
Rather, defendants argued its case primarily on the ground that the inspection would be burdensome to it and of slight value to-plaintiffs.
(Footnote continued).
Furniture Industries, Inc., 588 F.2d 904 (4th Cir. 1978).
In this case, plaintiffs brought an action against their employer based on generalized allegations of racial and sex discrimination.
Plaintiffs sought entry to the plant in question for a potential expert witness of unspecified expertise and for an unspecified purpose.
The expert was to be allowed to make an unstructured inspection over an extended period of time and to speak to whomever he chose.
The district court had ordered the inspection without any showing of special need and without any specification of the kind of evidence which might be adduced by such an inspec-tion.
On interlocutory appeal, the Court rejected such dis-covery, stating:
We therefore reject the plaintiff's con-tention that the inspection in this case must necessarily be governed by the gen-eral relevancy standard of rule 26(b).
The degree to which the proposed inspec-tion will aid in the search for truth must be balanced against the burdens and dangers created by the inspection.
Id. at 908.
The Court stressed that in the circumstances of the particular case not only were the burdens on the oppos-ing party substantial, but in particular the evidentary (footnote continued from page 9)
The court also distinguished an earlier case, Morales v.
Turman, 59 F.R.D.
157 (E.D. Tex. 1972), in which on-site inspection had been permitted, on the grounds that in Mcrales (1) an evidentiary foundation had been laid for the requested order and (2) the Morales defendants had already permitted extensive academic studies to be made involving numerous graduate students.
These studies had been of exactly the same nature as the requested observation and hence defeated defendants' argument of burdensomeness.
benefits to the party seeking discovery would be slight.
-The court emphasized that the normal discovery procedure, in
.particular the taking-of depositions, was a far more appro-priate method of obtaining evidence than the entry sought.
~Id.
at.910.
'In the circumstances under consideration, the balancing.of burdens to the Licensee and the existence of adequate alternative means of discovery against possible speculative benefits to Christa-Maria argues overwhelmingly against permitting this form of discovery.
As previously noted,'there is only one location on Licensee's premises where the operations could be usefully observed, namely Licensee's Orsite Technical Support Center.
This Center provides a relatively small space which normally would accommodate fewer than 10 persons.
This space will already be occupied by seven or eight company personnel engaged in the direc lon and execution of the emergency plan drill and two or three federal observers necessary to the evaluation of the exercise.
Any outside observer would have to be accompanied by an additional company employee under existing security procedures.
Thus an already overburdened space would be.furtheritaxed.
The presense of additional persons underfoot in an already cramped space could seriously hamper the proper execution of the drill by company personnel.
Finally, the presence of adverse parties in a litigated matter might' seriously inhibit company personnel from the unconstrained conduct of their duties and inhibit candid on the spot evaluation of exercise activities which might lead to improvements or corrective action.
Nor has Christa-Maria given any indication of special benefits which might accrue to them from the requested observation.
Christa-Maria has not identified the prospective observer or observers, nor have they indicated that the observers will have any special expertise upon which to make useful judgments.
Finally, and most important, Christa-Maria has made no showing as to the relationship of informa-tion to be gleaned from this inspection to the adequacy cf the plan as it relates specifically to the spent fuel pool.
Furthermore, evidence as to the adequacy of the plan can be obtained in ways other than from on-the-spot observation.
A number of post drill evaluations will take place.
The Regional Advisory Committee chaired by FEMA will critique the exercise, primarily for the benefit of the participants, but it is Licensee's understanding that this critique will involve a meeting open to the public.
In addition, the Nuclear Regulatory Commission will develop a written report evaluating the conduct of the drill under the emergency plan.
Finally, Licensee's consultant will produce a written report evaluating its portion of the exercise.
Licensee will furnish a copy of its consultant's report and any other pertinent informat ea to Christa-Maria, and we h
assume that the NRC Staff will likewise make its Report available.
As the Belcher court stresses, if documentary evidence proves insufficient, the most reliable and usable evidence can be obtained by after-the-fact deposition of participants.
Christa-Maria will have ample opportunity to depose Company participants in the exercise should that prove necessary.
Thus, in the circumstances presented to the Licensing Board in this case, there is no demonstrated need for the kind of discovery sought and the burdens to Licensee would be considerable.-
Conclusion For the foregoing reasons, Christa-Maria's Emer-gency Request should be denied.
Referral of Adverse Ruling to Appeal Board The Commission's Rules of Practice provide that a Licensing Board may refer a ruling to the Atomic Safety and Licensing _ Appeal Board
(" Appeal Board") when, in the judgment of the Licensing Board, a " prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense."*
Licensee believes that, should the Licensing Board rule against it on the instant request, it would be 10.C.F.R..S 2.730(f).
appropriate for that ruling to be referred to the Appeal Board.
Not only would an adverse ruling be detrimental to the public interest in having a properly conducted emergency exercise, but also the grant of the request would be preju-dicial to the Licensee's interest in having properly conducted discovery since the normal safeguards would not be assured.
Furthermore, referral is warranted because the instant situation' meets not only the requirements of 10 C.F.R.
S 2.730(f), but also the guidelines established by the Appeal Board for de'termining when it will undertake dis-cretionary interlocutory review.
As the Appeal Board explained in Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977), such review has been undertaken only where the ruling below:
either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner.
(Footnote omitted),
i The grant of the Request by the Licensing Board would affect both the orderly conduct of the exercise and the proper con-duct of discovery in an adverse manner.
Moreover, any such adverse ruling would establish the unfortunate precedent of allowing.intervenors to participate in, under the guise of
discovery, and possibly interfere with any test or inspection conducted by licensees during the operation of nuclear power reactors.
For these reasons, Applicants request this Licens-
-ing Board'to refer any adverse ruling to the Appeal Board.
Respectfully Submitted, ose Gallo One of the Attorneys for Consumers Power Company ISHAtl, LINCOLN & BEALE -
1120 Connecticut Avenue, N.W.
Suite 325 Washington, D.C.
20036 202/833-9730 June 22, 1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'BEFORE THE ATOMIC SAFETY AND LICENGING 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:
CONSUMERS POWER COMPANY 'S RESPONSE IN OPPOSITION TO INTER-VENOR 'S EMERGENCY REQUEST 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 22nd day of June, 1980, except that the parties designated by an asterisk will be served by personal delivery during the morning of June 23, 1980.
- Herbert Grossman, Esq.
- Janice E.
Moore, Esq.
Atomic Safety and Licensing Counsel for NRC Staff Board' Panel U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 John A.
Leithauser
- Dr. Oscar H.
Paris Energy Resources Group Atomic' Safety and Licensing General Delivery Board Panel Levering,. Michigan 49755
.U.S.
Nuclear Regulatory Commission-John O 'Neill, II Washington, D.C.
20555 Route 2, Box 44 Maple City, Michigan 49664 eMr. Frederick J. Shon Atomic Safety and-Licensing Christa-Maria
- Board. Panel Rcute'2, Box 108C U.S.
Nuclear Regulatory Charlevoix, Michigan 49720 Commission Washington, D.C.
20555 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 Sheboygan, Wisconsin 53081 Charlevoix, Michigan 49720 Ms.
oAnne Bier Atomic Safety and Licening 204 elinton Appeal Board Panel Charlevoix, Michigan 49720 U.S.
Nuclear Regulatory Commission Judd Bacon, Esquire Washington, D.C.
20555 Consumers Power Company 212 West Michigan A7enue Atomic Safety and Licensing Jackson, Michigan 49201 Board Panel U.S. Nuclear Regulatory
- William S.
Jordan, III Commission Sheldon, Harmon & Weiss Washington, D.C.
20555 1725 I Street, N.W.
Suite 506
- Docketing and Service Section Washington, D.C.
20006 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 m
J y j 'p h G A~ 1 o '
We of the Attorneys for Consumers Power Company i
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